WEBVTT
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SJC
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13558.
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George Mackie versus Robert Joss.
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And SJC 13554,
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George Mackie versus Katrin Rouse-Weir.
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(door closes)
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[Justice Wendlandt] Okay, Mr. Mackie,
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you're up first.
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May I please the court,
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my name is George Mackie
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and I'm a pro se litigant,
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in both cases.
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I am here to say that neither Dr. Joss,
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nor Dr. Rouse-Weir should be entitled to any
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type of immunity whatsoever.
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There were violations of the statute and common
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law based on the contents of both reports,
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and the statute does not
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specifically state that they're entitled
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to immunity and whereas, the qualified examiner
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is only qualified through the Department
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of Corrections, which is
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an executive
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entity crossing over into the judicial,
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I believe violates Rule 30,
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due to the fact that the only way
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a qualified examiner can be qualified
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is through the Department of Corrections.
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In the case of Dr. Rouse-Weir, she was hired
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by the Worcester County District Attorney.
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Now, that particular portion
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of the statute is not a requirement for
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determination of SDP, that is based,
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be on the fact of the district attorney
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wanting to look at that issue.
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As far as, Dr. Joss, his immunity should not
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be allowed based on the fact that,
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again, he is only qualified
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through the Department of Corrections.
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Both reports, again,
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make inferences to non-convictions,
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which is the reason I'm able
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to speak to you here today
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because the decision as SDP was overturned
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by the appeals court.
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The DA could have hired any psychologist,
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you know, to present information.
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They did not, they chose to
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hire a qualified examiner qualified through
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the Department of Corrections.
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The qualified examiners also serve
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as on the CAB board for the Department
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of Corrections, which is, outside the realm
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of any judicial inference, allegedly.
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So therefore, another conflict.
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So if the qualified
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examiner doesn't find the person
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sexually dangerous, the case ends.
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Correct.
So they have
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a sort of a finality role as well
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in the judicial process, it's quite unusual.
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Yes, however, as in my case with Dr. Joss,
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after the appeals court overturned
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the decision of SDP based on use of
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non-convictions,
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we'll say, the next two QE's that
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I interviewed with
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found me not sexually dangerous based
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on the appeals court's decision as far as,
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what can and can't be in these reports.
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Dr. Joss has also made other errors
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in other cases, as I stated in the brief,
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Dr. Rouse-Weir removed 27 paragraphs
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of information after an interview.
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Now, in the defendant's
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brief, they claim that, you know, Dr. Rouse-Weir
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was acting on behalf of the court
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and as an expert witness and based
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her information on,
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I don't wanna say, an interview,
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based her information on an investigation.
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However, that investigation does not
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include an interview, it's all
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done through documents.
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On the advice of my counsel, I did meet with her
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and that's when those 27 paragraphs were removed.
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[Justice Wendlandt] So I have a question
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about that.
Okay.
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So she removes the 27 paragraphs,
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but still concludes the same conclusion.
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Correct.
How then,
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I guess, I'm wondering, you know,
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what your claim is as to the 27 paragraphs
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like you know, that she misstated
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but how did that affect you?
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The removal of the 27 paragraphs?
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I believe that she saw that as possible...
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what's the word I'm looking for?
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[Justice Wendlandt] Exculpatory?
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Exculpatory evidence.
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So if she removed it, she didn't have
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to testify to it because she said on
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the stand that she never saw it.
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However, if it was there in the second report,
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my attorney could have questioned her on,
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"Well, isn't it true that this didn't happen?"
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Or, "How do you think this could happen?"
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And again, it's all based on information
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that I was never convicted of.
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And in re-Redgate, and I don't have the address
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in front of me, it does say, qualified
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examiners cannot use information that you
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were not convicted of.
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And both of these, Dr. Rouse-Weir
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and Dr. Joss based their decisions on
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that kind of information.
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Whereas, the two qualified examiners that
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found me not sexually dangerous
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based their decision on, you know, the fact
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that I was never convicted of those.
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I do have some other notes here as far
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as in Dr. Rouse-Weir's information,
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the argument by the defendants that
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I did not provide information in my original
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complaint that allowed the judge to
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dismiss under Rule 12(b)(6), I believe there
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was sufficient evidence, especially, in the
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removal of 27 paragraphs and,
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you know, other information as far as,
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what she did and did not do.
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I did present facts in evidence form
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to prove those allegations that I made.
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I already said that.
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Oh.
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Okay, there's a thing on page 27
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of the Rouse-Weir brief that states,
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although, a psychiatrist in Luan was appointed
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by the probation department and not the DOC,
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the appeals court errored in both Mackie,
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but however, the probation department does not
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qualify, people who are allowed to testify
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at SDP cases, the probation department,
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you know, they pick the psychologist,
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but not from a small group of individuals who
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are qualified by the Department of Corrections.
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And in the case of Dr. Joss,
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where they say on page 23
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that the courts
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allow E.N Chapman explicitly recognize that QE
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serve as though appointed by the court.
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The statute is interpreted way too overbroad
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in that situation
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because nowhere in the statute does it say, any
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of them are, you know, appointed by the court.
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I'm sorry, please just...
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trying to get through all my notes here.
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Okay.
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Both decisions by Rouse-Weir and Dr. Joss
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are in conflict with the diagnosis
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of a pedophilic disorder and violated my right
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to liberty and due process.
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Therefore, if any immunity was entitled, it would
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be abandoned due to the constitutional violation.
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You know, that's if any immunity, you know,
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I mean, in the case of Annie Duke
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and Farouk and I believe the district attorney,
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all of their immunity was wiped out
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because of the violation of the statute
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in the drug cases.
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And I think there was an issue raised
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by the appeals court,
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I believe I found a case that said that,
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if it's a criminal case or a civil case
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and there's nothing to cover one or the other,
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the general principle is that the
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common law would decide, it would be equal.
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In other words, the civil law would cover
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the criminal law, the criminal law would
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cover the civil law.
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And I believe I put that in my brief.
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I don't know if this is a correct time to do
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this or not, but I would like to object to
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the presentation of the Department
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of Corrections amicus brief based on
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the fact that it parallels the defendant's
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brief of itself, there are similar case laws
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used to make certain arguments in both issues.
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And in saying that, I would also like to
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object to her testimony here today.
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Okay, I don't know if I have to do that
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in writing or I can do it before or after
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or how that works, but I'd like to make
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that known, are there any questions?
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[Justice Wendlandt] I think we're all set.
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All set?
[Justice Wendlandt] All set.
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Thank you.
Okay, thank you.
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[Justice Wendlandt] Okay, Attorney Walton.
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Thank you, may I please the court.
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My name is Ken Walton and together with my
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partner, Patricia Gary, we represent
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Dr. Robert Joss, Dr. Katrin Rouse-Weir.
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And initially, your honors, I'd like to point
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out that we have agreed to split our time
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with attorney Mary Murray
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of the Department of Corrections.
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So if it's okay with the court,
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I'll stop at the 10 minute mark and answer
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any questions and then turn it over
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to Attorney Murray.
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As set forth in the brief, I think there
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are numerous independent grounds supporting
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the Superior Court's dismissal
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of the lawsuits against both Dr. Joss
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and Dr. Rouse-Weir, both of whom,
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who have performed the important function
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of a qualified examiner in the Commonwealth,
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Dr. Joss for over 30 years, Dr. Rouse-Weir
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for over 25 years.
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Initially, I'll start with the Rule 12(b)(9)
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standard, which this court has articulated
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in the Lanier case, in the Sachs case.
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And then of course, the Encino case by
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the Supreme Court of the United States.
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Every plaintiff, whether they are represented
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or pro se, has the obligation to set forth
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a clear statement of their case with,
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to quote, "plausibly suggesting
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an entitlement to relief."
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So the issue in this case
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is this kind of hybrid model, because clearly,
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they're paid for by the DOC
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and similar to that of a expert witness hired
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by the government in say, NGI,
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a criminal responsibility case.
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But they are also, statutorily appointed
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or mandated and you can't get a SDP case
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without two QE's and you need at least one.
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So where does that fit the role of the QE
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given the payment structure
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and the statutory role of a QE?
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Thank you, your Honor.
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So on that question, in this case, to be clear,
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Dr. Joss was a QE, that was his job.
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Dr. Rouse-Weir was hired by the District
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Attorney's Office to assist with the probable
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cause procedure or hearing that precedes
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the actual former hearing.
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But I think it's important, and this court
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articulated it in the Bruno case, that both
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of those roles are statutorily required.
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Now, is the district attorney's
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retention of an expert
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articulated explicitly in the statute?
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No, it's not, however,
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it is a necessary element for the district
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attorney to be able to get over the probable
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cause standard, they need that expert witness.
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So the Bruno case was very clear on that point,
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in my opinion, on saying that you need both
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of these things for the district attorney to get
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through the probable cause finding.
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[Justice Wendlandt] But the difference between
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the two is that the QE, regardless of
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the outcome of their investigation,
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and whether they conclude that the person
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is an SDP or not, must submit that report
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to the court, whereas, the probable cause expert,
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the DA can keep hiring whoever they want to
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until they get somebody who will say,
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"Yeah, this person's an SDP."
271
00:16:59.130 --> 00:17:00.150
That's very true.
272
00:17:00.150 --> 00:17:03.360
So that makes them different in kind to me.
273
00:17:03.360 --> 00:17:06.330
So the QE seems more like in a court appointed
274
00:17:06.330 --> 00:17:11.070
expert because you, the DA don't control
275
00:17:11.070 --> 00:17:13.620
whether that report comes to the court or not.
276
00:17:13.620 --> 00:17:16.200
I think that that distinction is true,
277
00:17:16.200 --> 00:17:20.040
however, the immunities that provide expert
278
00:17:20.040 --> 00:17:24.600
witnesses, immunity, not only in this context,
279
00:17:24.600 --> 00:17:28.290
but in really any civil case or criminal case.
280
00:17:28.290 --> 00:17:30.840
Because if you have a case going to trial
281
00:17:30.840 --> 00:17:33.180
on the civil level or the criminal level,
282
00:17:33.180 --> 00:17:35.670
you're going to have two experts.
283
00:17:35.670 --> 00:17:38.640
They are going to have two different opinions,
284
00:17:38.640 --> 00:17:41.160
that's just the nature of the beast.
285
00:17:41.160 --> 00:17:44.700
So if the new standard is that you can sue
286
00:17:44.700 --> 00:17:48.150
an expert because you don't like their opinion,
287
00:17:48.150 --> 00:17:50.820
because you don't agree with their opinion,
288
00:17:50.820 --> 00:17:53.507
then the floodgates will open because in-
289
00:17:53.507 --> 00:17:56.737
So are you arguing litigation privilege?
290
00:17:56.737 --> 00:18:00.300
I have multiple arguments starting
291
00:18:00.300 --> 00:18:03.450
with the qualified, I would argue, your Honor,
292
00:18:03.450 --> 00:18:07.140
to start with the qualified judicial immunity
293
00:18:07.140 --> 00:18:10.050
that they're entitled to because I-
294
00:18:10.050 --> 00:18:12.030
But why is the probable cause expert
295
00:18:12.030 --> 00:18:14.823
entitled to quasi-judicial immunity?
296
00:18:16.856 --> 00:18:18.510
And this actually rolls into
297
00:18:18.510 --> 00:18:22.320
the prosecutorial immunity, which is also,
298
00:18:22.320 --> 00:18:25.290
argued in the brief because they are serving
299
00:18:25.290 --> 00:18:27.870
as an arm of the prosecutor.
300
00:18:27.870 --> 00:18:29.520
Okay, so not quasi-judicial,
301
00:18:29.520 --> 00:18:31.170
but prosecutorial immunity?
Yes, yes.
302
00:18:31.170 --> 00:18:34.380
Okay, so Dr. Rouse-Weir might be entitled
303
00:18:34.380 --> 00:18:35.790
to prosecutorial immunity,
304
00:18:35.790 --> 00:18:38.490
how do you get around the Kalina case?
305
00:18:38.490 --> 00:18:42.990
Well, the Kalina case is all about
306
00:18:42.990 --> 00:18:47.040
whether the witness is a complaining witness.
307
00:18:47.040 --> 00:18:48.390
That's the standard.
308
00:18:48.390 --> 00:18:50.100
And what happened in that case,
309
00:18:50.100 --> 00:18:53.520
the district attorney filed a application,
310
00:18:53.520 --> 00:18:56.970
he filed an affidavit basically, with factual
311
00:18:56.970 --> 00:18:59.850
allegations that the court said, you know,
312
00:18:59.850 --> 00:19:03.030
this isn't even necessary for this filing
313
00:19:03.030 --> 00:19:05.460
by a district attorney, it's unusual
314
00:19:05.460 --> 00:19:07.770
for the district attorney to file this type
315
00:19:07.770 --> 00:19:10.380
of affidavit with factual statements.
316
00:19:10.380 --> 00:19:13.620
So really, he took himself out of the role
317
00:19:13.620 --> 00:19:16.542
of a district attorney and became-
318
00:19:16.542 --> 00:19:18.780
Just to clarify 'cause you are more
319
00:19:18.780 --> 00:19:20.400
familiar with this than I am,
320
00:19:20.400 --> 00:19:24.060
but I thought Kalina was about
321
00:19:24.060 --> 00:19:27.750
the necessity of the prosecutor being
322
00:19:27.750 --> 00:19:31.020
the signatory to the affidavit, not whether
323
00:19:31.020 --> 00:19:34.083
or not, the affidavit was required at all.
324
00:19:35.700 --> 00:19:37.020
It seemed like there needed
325
00:19:37.020 --> 00:19:38.823
to be an affidavit, right?
326
00:19:39.720 --> 00:19:41.062
Correct.
Okay.
327
00:19:41.062 --> 00:19:44.880
The role of the prosecutor as the signatory
328
00:19:44.880 --> 00:19:47.730
to the affidavit, that was problematic?
329
00:19:47.730 --> 00:19:49.078
That's correct, your Honor.
330
00:19:49.078 --> 00:19:52.590
So why isn't that more like Rouse-Weir?
331
00:19:52.590 --> 00:19:56.460
Because in Rouse-Weir, as I mentioned,
332
00:19:56.460 --> 00:20:00.300
the Bruno case requires experts for these
333
00:20:00.300 --> 00:20:03.420
two roles, the DA needs an expert
334
00:20:03.420 --> 00:20:06.270
or they don't get by the probable cause hearing.
335
00:20:06.270 --> 00:20:09.270
It's a necessary prosecutorial function.
336
00:20:09.270 --> 00:20:10.103
Do you separate
337
00:20:10.103 --> 00:20:11.550
the prosecutorial function
338
00:20:11.550 --> 00:20:14.790
by whether or not, there's a court role
339
00:20:14.790 --> 00:20:16.980
versus an investigative role?
340
00:20:16.980 --> 00:20:18.270
For one, if you act like a cop,
341
00:20:18.270 --> 00:20:20.070
you get sued like a cop.
342
00:20:20.070 --> 00:20:22.050
That's how I was always told.
343
00:20:22.050 --> 00:20:23.370
Yes.
344
00:20:23.370 --> 00:20:25.053
And cops only get qualified.
345
00:20:26.160 --> 00:20:28.860
Right, because of the investigatory.
346
00:20:28.860 --> 00:20:30.360
And Your Honor, I apologize,
347
00:20:30.360 --> 00:20:31.920
if I missed your question.
348
00:20:31.920 --> 00:20:34.830
No, so the question is, when we look at
349
00:20:34.830 --> 00:20:38.850
Rouse-Weir, under prosecutorial immunity
350
00:20:38.850 --> 00:20:40.650
isn't the issue of whether or not,
351
00:20:40.650 --> 00:20:43.230
she's fulfilling a court role,
352
00:20:43.230 --> 00:20:45.270
she's testifying in a probable
353
00:20:45.270 --> 00:20:46.170
cause hearing, right?
354
00:20:46.170 --> 00:20:49.650
Well, I think that the standard
355
00:20:49.650 --> 00:20:53.250
for prosecutorial immunity or the best case
356
00:20:53.250 --> 00:20:56.250
on that particular issue is the CM case
357
00:20:56.250 --> 00:20:59.850
by this case, by this court, excuse me,
358
00:20:59.850 --> 00:21:03.330
where the court held that absolute prosecutorial
359
00:21:03.330 --> 00:21:05.340
immunity protects the social worker
360
00:21:05.340 --> 00:21:08.370
initiating a care and protection proceeding.
361
00:21:08.370 --> 00:21:11.580
And that case is almost identical procedurally,
362
00:21:11.580 --> 00:21:14.430
I mean, you know, you change the names
363
00:21:14.430 --> 00:21:16.830
and obviously, this involves doctors
364
00:21:16.830 --> 00:21:18.240
and that involves the social worker,
365
00:21:18.240 --> 00:21:20.073
but it's right on point.
366
00:21:21.617 --> 00:21:22.740
[Justice Wendlandt] But Rouse-Weir didn't
367
00:21:22.740 --> 00:21:25.800
initiate this proceeding, she was an expert
368
00:21:25.800 --> 00:21:27.390
on behalf of the Commonwealth
369
00:21:27.390 --> 00:21:28.920
that initiated the proceeding.
370
00:21:28.920 --> 00:21:32.790
I agree, but her role,
371
00:21:32.790 --> 00:21:34.860
the proceeding never could have gotten
372
00:21:34.860 --> 00:21:37.140
to where it got to.
Yeah, the Commonwealth
373
00:21:37.140 --> 00:21:40.080
couldn't meet its burden of proof without her.
374
00:21:40.080 --> 00:21:41.730
Right, which wraps her-
375
00:21:41.730 --> 00:21:44.850
And so any evidence submitted to meet
376
00:21:44.850 --> 00:21:46.210
the burden of proof is
377
00:21:47.130 --> 00:21:49.320
immune under prosecutorial immunity.
378
00:21:49.320 --> 00:21:51.750
If it's done in good faith, I mean,
379
00:21:51.750 --> 00:21:53.670
an expert-
If he alleges,
380
00:21:53.670 --> 00:21:56.187
it was malicious, not in good faith.
381
00:21:56.187 --> 00:21:58.110
But what I would say to that is,
382
00:21:58.110 --> 00:22:00.810
there are no allegations to support that.
383
00:22:00.810 --> 00:22:02.880
If you're gonna make an allegation against
384
00:22:02.880 --> 00:22:05.580
somebody, a professional, and say,
385
00:22:05.580 --> 00:22:08.730
you did something malicious or intentional,
386
00:22:08.730 --> 00:22:11.100
then you have to come up with more
387
00:22:11.100 --> 00:22:14.070
in your complaint or somewhere to support
388
00:22:14.070 --> 00:22:16.440
those allegations, in saying that
389
00:22:16.440 --> 00:22:19.140
Dr. Rouse-Weir because she allegedly...
390
00:22:19.140 --> 00:22:21.060
she says, she didn't, but I'll accept
391
00:22:21.060 --> 00:22:24.090
that is true for here because that's
392
00:22:24.090 --> 00:22:25.953
the Rule 12(b)(9) standard.
393
00:22:27.999 --> 00:22:30.573
If she deleted 27 pages,
394
00:22:31.890 --> 00:22:33.960
we all write expert reports
395
00:22:33.960 --> 00:22:36.030
or experts write expert reports.
396
00:22:36.030 --> 00:22:37.740
Sometimes, they add information,
397
00:22:37.740 --> 00:22:40.113
sometimes, they take information away.
398
00:22:41.040 --> 00:22:43.770
I'm sure Your Honor's write opinions where you
399
00:22:43.770 --> 00:22:46.350
add parts and you take parts away.
400
00:22:46.350 --> 00:22:50.580
There's gotta be more to rise to the level
401
00:22:50.580 --> 00:22:54.990
of allegedly bad conduct by a professional
402
00:22:54.990 --> 00:22:55.823
than what's alleged in this case.
403
00:22:55.823 --> 00:22:57.390
So I was a little confused by that
404
00:22:57.390 --> 00:22:59.400
because I thought you were arguing absolute
405
00:22:59.400 --> 00:23:02.280
immunity, which doesn't matter,
406
00:23:02.280 --> 00:23:03.960
if it was good faith, bad faith,
407
00:23:03.960 --> 00:23:06.750
maliciously, intentionally, it doesn't matter.
408
00:23:06.750 --> 00:23:09.300
Now, it sounds like your move to qualified
409
00:23:09.300 --> 00:23:11.370
immunity, in which those kind
410
00:23:11.370 --> 00:23:12.450
of things do matter.
411
00:23:12.450 --> 00:23:17.310
Well, what I was getting to is that
412
00:23:17.310 --> 00:23:19.860
in my view, all of these immunities,
413
00:23:19.860 --> 00:23:22.020
not every single immunity that exists,
414
00:23:22.020 --> 00:23:24.000
but the ones that we've talked about
415
00:23:24.000 --> 00:23:26.520
in our brief, they are all independent grounds.
416
00:23:26.520 --> 00:23:29.250
So the court may not agree with me on one
417
00:23:29.250 --> 00:23:32.400
of the immunities, but there's another
418
00:23:32.400 --> 00:23:35.160
immunity exists so that was the next argument
419
00:23:35.160 --> 00:23:38.340
I was gonna make, which is, absolute immunity.
420
00:23:38.340 --> 00:23:40.350
In this court in the Schreiber case,
421
00:23:40.350 --> 00:23:43.425
I wrote this quote down exactly because I think
422
00:23:43.425 --> 00:23:46.590
it applies exactly, held that statements made
423
00:23:46.590 --> 00:23:49.920
by a party counsel or witness in the institution
424
00:23:49.920 --> 00:23:52.270
of, or during the course of a judicial
425
00:23:53.220 --> 00:23:56.460
proceeding are absolutely privileged
426
00:23:56.460 --> 00:23:59.100
and protected, provided such statements
427
00:23:59.100 --> 00:24:00.900
relate to that proceeding.
428
00:24:00.900 --> 00:24:02.760
Now, that was my question to you initially,
429
00:24:02.760 --> 00:24:05.160
which is, you know, are you arguing litigation
430
00:24:05.160 --> 00:24:06.720
privilege, which is what that Schreiber
431
00:24:06.720 --> 00:24:08.970
case is all about, it sounds like, yes, you are.
432
00:24:08.970 --> 00:24:10.620
Yes.
And was that an argument
433
00:24:10.620 --> 00:24:11.793
that you raised below?
434
00:24:13.050 --> 00:24:15.665
We did not raise that below-
435
00:24:15.665 --> 00:24:17.820
[Justice Wendlandt] Given that posture, what do we do?
436
00:24:17.820 --> 00:24:20.970
Well, I think the Gibidian case also,
437
00:24:20.970 --> 00:24:23.880
by this court says that it is well-established
438
00:24:23.880 --> 00:24:28.020
that on appeal, the SJC may consider any ground
439
00:24:28.020 --> 00:24:30.180
apparent on the record that supports
440
00:24:30.180 --> 00:24:32.880
the result reached in the lower court.
441
00:24:32.880 --> 00:24:34.533
That's the case I would cite too.
442
00:24:37.860 --> 00:24:40.140
The lower court got it right,
443
00:24:40.140 --> 00:24:41.970
they reached the right result,
444
00:24:41.970 --> 00:24:44.790
they did not address and perhaps, counsel
445
00:24:44.790 --> 00:24:47.190
did not address every single immunity that
446
00:24:47.190 --> 00:24:49.470
is now discussed in our brief.
447
00:24:49.470 --> 00:24:53.400
And you know, that's obviously, a very legitimate
448
00:24:53.400 --> 00:24:57.153
question, but I think the Gibidian case saves it.
449
00:24:58.140 --> 00:25:00.600
And I would conclude, just 'cause I don't wanna
450
00:25:00.600 --> 00:25:04.950
cut off Attorney Murray that I do believe
451
00:25:04.950 --> 00:25:07.680
all of these immunities that are discussed
452
00:25:07.680 --> 00:25:10.710
in our brief and the 12(b)(9) standard
453
00:25:10.710 --> 00:25:12.780
provide independent basis
454
00:25:12.780 --> 00:25:15.450
to support the lower court's decision.
455
00:25:15.450 --> 00:25:17.100
Before I sit down, are there any more
456
00:25:17.100 --> 00:25:18.993
questions for me, Your Honors?
457
00:25:19.890 --> 00:25:20.850
I don't think so.
458
00:25:20.850 --> 00:25:21.720
Thank you.
459
00:25:21.720 --> 00:25:24.780
And Mr. Mackie, I think you were asking
460
00:25:24.780 --> 00:25:29.700
your motion was for Attorney Murray not to-
461
00:25:29.700 --> 00:25:30.990
Testify.
Okay.
462
00:25:30.990 --> 00:25:33.740
I'm going to deny that motion.
Okay.
463
00:25:39.630 --> 00:25:41.220
Good morning, and may it please the court,
464
00:25:41.220 --> 00:25:43.740
Mary Murray for Amicus Department of Correction.
465
00:25:43.740 --> 00:25:45.420
Thank you for extending the invitation
466
00:25:45.420 --> 00:25:49.260
on our motion to be permitted to argue.
467
00:25:49.260 --> 00:25:51.850
Two grounds in the Joss case
468
00:25:52.800 --> 00:25:55.230
support affirming the superior court.
469
00:25:55.230 --> 00:25:56.970
First, I'll pick up with the litigation
470
00:25:56.970 --> 00:26:01.440
privilege, the litigation privilege applies
471
00:26:01.440 --> 00:26:04.143
regardless of malice,
472
00:26:05.220 --> 00:26:07.470
bad faith or nefarious motive according
473
00:26:07.470 --> 00:26:09.870
to the facetious decision cited in the
474
00:26:09.870 --> 00:26:14.193
department's papers, 490 Mass at 150,
475
00:26:15.420 --> 00:26:18.630
Judge Donatelli in the Superior Court,
476
00:26:18.630 --> 00:26:21.090
in her opinion, appears at page 53
477
00:26:21.090 --> 00:26:26.090
of Amicus brief, in footnote four indicates
478
00:26:26.430 --> 00:26:29.580
that it appears Dr. Joss's statements
479
00:26:29.580 --> 00:26:31.890
in the SDP probable cause hearing and jury trial
480
00:26:31.890 --> 00:26:34.110
are protected by the litigation privilege.
481
00:26:34.110 --> 00:26:37.230
So she, Judge Donatelli herself
482
00:26:37.230 --> 00:26:40.860
raised that issue, the litigation privilege
483
00:26:40.860 --> 00:26:43.833
of course, protects all of the witnesses,
484
00:26:45.840 --> 00:26:49.080
lay witnesses, expert witnesses,
485
00:26:49.080 --> 00:26:50.940
the parties and counsel.
486
00:26:50.940 --> 00:26:54.540
Otherwise, where would it end, if Dr. Joss
487
00:26:54.540 --> 00:26:58.470
and Dr. Rouse-Weir are unhappy with the outcome,
488
00:26:58.470 --> 00:27:00.300
if they prevail, can they turn and sue
489
00:27:00.300 --> 00:27:02.790
Mr. Mackie for defamation?
490
00:27:02.790 --> 00:27:04.260
If there's no litigation privilege,
491
00:27:04.260 --> 00:27:05.760
what would stop them?
492
00:27:05.760 --> 00:27:07.800
And then somebody's unhappy with that
493
00:27:07.800 --> 00:27:11.133
and we have more litigation about litigation.
494
00:27:12.540 --> 00:27:15.120
And there's no need for that here because
495
00:27:15.120 --> 00:27:19.350
Chapter 123A's own robust procedures
496
00:27:19.350 --> 00:27:24.350
protect against wrongful incorrect commitments.
497
00:27:24.990 --> 00:27:28.530
As detailed in Amicus's brief, there are
498
00:27:28.530 --> 00:27:30.240
the right to counsel, the right
499
00:27:30.240 --> 00:27:32.850
to receive the reports.
500
00:27:32.850 --> 00:27:35.880
And indeed, you heard in the earlier arguments
501
00:27:35.880 --> 00:27:37.740
with respect to Dr. Rouse-Weir, that there
502
00:27:37.740 --> 00:27:39.720
were 27 paragraphs missing.
503
00:27:39.720 --> 00:27:40.740
The way that that's known is
504
00:27:40.740 --> 00:27:43.020
because both reports were turned over.
505
00:27:43.020 --> 00:27:45.030
If otherwise, you wouldn't know that there
506
00:27:45.030 --> 00:27:48.060
were this allegation about that,
507
00:27:48.060 --> 00:27:50.280
the reports are made available,
508
00:27:50.280 --> 00:27:52.380
particularly, the QE reports by statute
509
00:27:52.380 --> 00:27:55.500
are completed within 45 days of the finding
510
00:27:55.500 --> 00:27:57.750
of probable cause, they're filed with their
511
00:27:57.750 --> 00:27:59.310
court, they're made available.
512
00:27:59.310 --> 00:28:01.590
The individual has the right to call his own
513
00:28:01.590 --> 00:28:06.453
experts to cross-examine, to appeal,
514
00:28:07.350 --> 00:28:09.900
to have process issued to secure witnesses
515
00:28:09.900 --> 00:28:12.663
and funds for lawyers and experts, if indigent,
516
00:28:13.680 --> 00:28:15.420
robust procedures.
517
00:28:15.420 --> 00:28:17.640
Turning to the question of quasi-judicial
518
00:28:17.640 --> 00:28:22.173
immunity, this court said in Johnstone,
519
00:28:23.550 --> 00:28:26.790
within Chapter 123A statutory scheme,
520
00:28:26.790 --> 00:28:29.827
the qualified examiners are and I quote,
521
00:28:29.827 --> 00:28:32.070
"Established as independent
522
00:28:32.070 --> 00:28:34.830
court-appointed experts."
523
00:28:34.830 --> 00:28:37.050
A few paragraphs later, this court pointed
524
00:28:37.050 --> 00:28:40.800
out the QE's are the only experts appointed
525
00:28:40.800 --> 00:28:43.440
by the court under Chapter 123A.
526
00:28:43.440 --> 00:28:45.880
And the question of who pays them
527
00:28:46.890 --> 00:28:49.930
is immaterial because in Leland
528
00:28:51.600 --> 00:28:53.820
where the psychiatrist performing
529
00:28:53.820 --> 00:28:56.370
the probate court evaluation of family members
530
00:28:56.370 --> 00:28:59.460
relative to a visiting scheduling issue
531
00:28:59.460 --> 00:29:02.670
was paid by the father, one of the parties,
532
00:29:02.670 --> 00:29:04.890
the Department of Correction is not a party
533
00:29:04.890 --> 00:29:06.870
in an SDP proceeding.
534
00:29:06.870 --> 00:29:08.670
The Commonwealth is the party.
535
00:29:08.670 --> 00:29:10.650
I know that it sometimes, confuses people
536
00:29:10.650 --> 00:29:12.510
because department attorneys have been asked
537
00:29:12.510 --> 00:29:15.180
by the Attorney General to represent
538
00:29:15.180 --> 00:29:17.250
the Commonwealth and the Attorney General,
539
00:29:17.250 --> 00:29:19.080
of course, has the authority to make such
540
00:29:19.080 --> 00:29:22.020
a designation under her statutory
541
00:29:22.020 --> 00:29:25.470
right and authority, but the department is not,
542
00:29:25.470 --> 00:29:27.330
the department only has the right
543
00:29:27.330 --> 00:29:29.520
to file a petition and when that petition
544
00:29:29.520 --> 00:29:31.320
is filed, if the department thinks
545
00:29:31.320 --> 00:29:34.020
it's appropriate, the court still has to
546
00:29:34.020 --> 00:29:37.560
appoint QE's and order their evaluations
547
00:29:37.560 --> 00:29:40.200
and the QE's conduct their evaluations only
548
00:29:40.200 --> 00:29:42.450
in the context of a pending proceeding
549
00:29:42.450 --> 00:29:44.310
under court order.
550
00:29:44.310 --> 00:29:48.390
The statute in the initial commitment cases,
551
00:29:48.390 --> 00:29:50.100
once probable cause is found,
552
00:29:50.100 --> 00:29:53.460
the court shall order evaluation by two QE's.
553
00:29:53.460 --> 00:29:55.770
When a Section 9 petition is filed,
554
00:29:55.770 --> 00:29:59.010
the court shall order evaluation by QE's.
555
00:29:59.010 --> 00:30:01.410
And there are other protections,
556
00:30:01.410 --> 00:30:03.360
the qualified examiners have to follow-
557
00:30:03.360 --> 00:30:05.280
The Rouse-Weir is entitled to litigation
558
00:30:05.280 --> 00:30:06.600
privilege and Joss
Absolutely.
559
00:30:06.600 --> 00:30:09.150
is entitled to quasi-judicial.
560
00:30:09.150 --> 00:30:11.670
Yes and litigation privilege.
561
00:30:11.670 --> 00:30:13.380
And there may be some other privileges,
562
00:30:13.380 --> 00:30:15.000
but those were the ones the court invited
563
00:30:15.000 --> 00:30:17.430
Amicus to address and that's what we addressed
564
00:30:17.430 --> 00:30:20.130
in the Joss case, absolutely.
565
00:30:20.130 --> 00:30:22.680
Given the consistency and longevity of this
566
00:30:22.680 --> 00:30:24.420
court saying that the QE's conduct
567
00:30:24.420 --> 00:30:27.930
court-appointed evaluations, Sheridan 1992,
568
00:30:27.930 --> 00:30:32.550
Connors 2006, Sergeant 2007, Johnstone 2009,
569
00:30:33.496 --> 00:30:37.590
Gangi 2012, this court said that the QE's
570
00:30:37.590 --> 00:30:39.210
are court-appointed experts,
571
00:30:39.210 --> 00:30:40.860
but the Commonwealth must make sure
572
00:30:40.860 --> 00:30:42.840
that the treatment center gets the reports
573
00:30:42.840 --> 00:30:46.260
done on time and impose that burden
574
00:30:46.260 --> 00:30:47.940
on the Commonwealth to keep the case moving
575
00:30:47.940 --> 00:30:49.890
forward, which is reasonable enough,
576
00:30:49.890 --> 00:30:51.603
it's the Commonwealth's petition.
577
00:30:52.860 --> 00:30:53.850
Chapman in Green.
578
00:30:53.850 --> 00:30:56.660
I think if anybody...
579
00:30:57.570 --> 00:30:58.403
we're all set.