-: SJC-13558,
George Mackie versus Robert Joss
and SJC-13554,
George Mackie versus Katrin Rouse-Weir.
-: Okay, Mr. Mackie, you're up first.
-: May it please the court, my name is George Mackie
and I'm a pro se litigant in both cases.
I am here to say
that neither Dr. Joss nor Dr. Rouse-Weir
should be entitled to any type of immunity whatsoever.
There were violations of the statute
and common law based on the contents of both reports.
And the statute
does not specifically state
that they're entitled to immunity.
And whereas the qualified examiner
is only qualified through the Department of Corrections,
which is an executive
entity crossing over into the judicial,
I believe violates Rule 30,
due to the fact that the only way a qualified examiner
can be qualified is through the Department of Corrections.
In the case of Dr. Rouse-Weir,
she was hired by the Worcester County District Attorney.
Now, that particular portion of the statute
is not a requirement
for determination
of SDP.
That is based be on the fact
of the district attorney wanting to look at that issue.
As far as Dr. Joss,
his immunity should not be allowed
based on the fact that, again, he is only qualified
through the Department of Corrections.
Both reports, again,
make inferences to non-convictions,
which is the reason I'm able to speak to you here today,
because the decision as SDP
was overturned by the Appeals Court.
The DA could have hired any psychologist
to, you know, to present information.
They did not.
They chose to hire a qualified examiner
qualified through the Department of Corrections.
The qualified examiners also serve
as on the CAB Board
for the Department of Corrections,
which is outside the realm
of any judicial inference allegedly.
So therefore, another conflict-
-: So if the qualified examiner
doesn't find the person sexually dangerous, the case ends.
George Mackie: Correct.
-: So, they have a sort of a finality role as well
in the judicial process.
It's quite unusual.
-: Yes.
However, as in this, in my case with Dr. Joss,
after the Appeals Court overturned the decision of SDP
based on use of non-convictions,
the
we'll say the other, next two QEs
that I interviewed with
found me not sexually dangerous
based on the Appeals Court's decision
as far as what can and can't be in these reports.
Dr. Joss has also made other errors in other cases,
as I stated in the brief.
Dr. Rouse-Weir removed 27 paragraphs of information
after an interview.
Now, in the defendant's brief,
they claim that, you know, Dr. Rouse-Weir
was acting on behalf of the court as an expert witness
and based her information on,
I don't wanna say an interview,
I want to, based her information on an investigation.
However, that investigation
does not include
an interview.
It's all done through documents.
On the advice of my counsel, I did meet with her
and that's when those 27 paragraphs were removed.
-: [Justice Wendlandt] So, I have a question about that.
George Mackie: Okay.
-: So, she removes the 27 paragraphs,
but concludes the same conclusion.
George Mackie: Correct.
-: How then, I guess I'm wondering,
you know, what your claim is
as to the 27 paragraphs
like that, you know, that she misstated,
that she, but how did that affect you
the removal of the 27
paragraphs? -: I believe
that she saw that as possible,
what's the word I'm looking for?
-: [Justice Wendlandt] Exculpatory.
-: Exculpatory evidence.
So if she removed it, she didn't have to testify to it
because she said on the stand that she never saw it.
However, if my, if it was there in the second report,
my attorney could have questioned her on,
"Well, isn't it true that this didn't happen
or how do you think this could happen"
And again, it's all based on information
that I was never convicted of.
And in Redgate,
and I don't have the address in front of me,
it does say qualified examiners cannot use information
that you were not convicted of.
And both of these,
Dr. Rouse-Weir and Dr. Joss,
based their decisions on those, that kind of information.
Whereas the two qualified examiners that
found me not sexually dangerous
based their decision on, you know, the fact
that I was never convicted of those.
I do have some other notes here
as far as in Dr. Rouse-Weir's information.
The argument by the defendants that the
I did not provide information
in my original complaint
that allowed the judge to dismiss
under Rule 12b6.
I believe there was sufficient evidence,
especially in the removal of 27 paragraphs
and, you know, other information
as far as what she did and did not do.
I did present facts in evidence form
to prove those allegations that I made.
I already said that.
Made, oh.
Okay, there's a thing on page 27
of the Rouse-Weir brief that states,
"Although a psychiatrist in Leland
was appointed by the Probation Department
and not the DOC, the Appeals Court erred in both Mackie,"
but however, the Probation Department
does not qualify people who are allowed to testify
at SDP cases.
They do not-
The Probation Department doesn't pick, you know,
they pick the psychologist,
but not from a small group of individuals
who are qualified by the Department of Corrections.
And in the case of Dr. Joss,
where they say on page 23
that the courts allow in Chapman
explicitly recognize that QE serve
as though appointed by the court.
The statute is interpreted way too overbroad
in that situation, because nowhere in the statute
does it say any of them are interpret,
you know, appointed by the court.
I'm sorry, please just trying to get through
all my notes here.
Okay.
Both decisions by Rouse-Weir and Dr. Joss
are in conflict with the diagnosis of a pedophilic disorder
and violated my right to liberty and due process.
Therefore, if any immunity was entitled,
it would be abandoned due to the constitutional violation.
And that also,
you know, that's if any immunity,
you know, you decide immunity,
I mean, in the case of Annie Dookan
and Farouk
and the I believe the district attorney,
all of their immunity was wiped out
because of the violation
of the statute in the drug cases.
And I think there was an issue raised by the Appeals Court
that she, the...
I believe I found a case that said that there was,
if it's a criminal case or a civil case
and there's nothing to cover one or the other,
the general principle
is that the common law
would decide that it would be equal.
In other words, the civil law would cover the criminal law.
The criminal law would cover the civil law.
And I believe I put that in my brief.
I don't know if this is a correct time to do this or not,
but I would like to object
to the presentation
of the Department of Corrections amicus brief
based on the fact that it parallels
the defendant's
brief in its of itself.
There are similar case laws used
to make certain arguments in both issues.
And in saying that, I would also like to object
to her testimony here today.
Okay.
I don't know if I have to do that in writing
or I can do it before or after, how that works,
but I'd like to make that known.
Are there any questions?
Justice: I think we're all set.
-: All set?
Justice: All set.
Thank you. -: Okay, thank you.
-: Okay, Attorney Walton.
-: Thank you.
May it please the court, my name is Ken Walton
and together with my partner Patricia Gary,
we represent Dr. Robert Joss,
Dr. Katrin Rouse-Weir.
And initially, Your Honors, I'd like to point out
that we have agreed to split our time
with attorney Mary Murray of the Department of Corrections.
So if it's okay with the court,
I'll stop at the 10 minute mark and answer any questions,
and then turn it over to Attorney Murray.
As set forth in the brief,
I think there are numerous independent grounds
supporting the Superior Court's dismissal of the lawsuits
against both Dr. Joss and Dr. Rouse-Weir,
both of whom who have performed the important function
of a qualified examiner in the Commonwealth.
Dr. Joss for over 30 years.
Dr. Rouse Weir for over 25 years.
Initially, I'll start with the Rule 12b9 standard,
which this court has articulated in the Lanier case,
in the Sachs case.
And then, of course, the Encinino case
by the Supreme Court of the United States.
Every plaintiff, whether they are representative,
represented or pro se, has the obligation
to set forth a clear statement of their case
with, to quote,
"plausibly suggesting an entitlement to relief."
-: So, the issue in this case
is this kind of hybrid model
because, clearly, they're paid for
by the DOC and similar to that of a expert witness
hired by the government in say a NGI
or criminal responsibility case,
but they are also statutorily appointed or mandated.
And you can't get a SDP case without two QEs,
and you need at least one.
So where does that fit the role of the QE,
given the payment structure
and the statutory role of a QE?
-: Thank you, Your Honor.
So on that question, in this case to be clear,
Dr. Joss was a QE.
That was his job.
Dr. Rouse-Weir was hired by the District Attorney's Office
to assist with the probable cause procedure or hearing
that precedes the actual former hearing.
But I think it's important,
and this court articulated it in the Bruno case,
that both of those roles are statutorily required.
Now is the district attorney's retention of an expert
articulated explicitly in the statute?
No, it's not.
However, it is a necessary element
for the district attorney
to be able to get over the probable cause standard.
They need that expert witness.
So the Bruno case was very clear on that point,
in my opinion, on saying that you need both of these things
for the district attorney to get through
the probable cause finding
and then also- -: But the difference
between the two is that the QE,
regardless of the outcome
of their investigation
and whether they conclude that the person
is an SDP or not, must submit that report to the court.
Whereas the probable cause expert,
the DA can keep hiring whoever they want to
until they get somebody who will say,
"Yeah, this person's an SDP."
-: That's very true.
-: So, that makes them different in kind to me.
So, the QE seems more like in a court-appointed expert
because you, the DA, don't control
whether that report comes to the court or not.
-: I think that that distinction is true.
However, the immunities that provide expert witnesses
immunity not only in this context,
but in really any civil case or criminal case.
Because if you have a case going to trial on the civil level
or the criminal level, you're going to have two experts.
They are going to have two different opinions.
That's just the nature of the beast.
So if the new standard is that you can sue an expert
because you don't like their opinion,
because you don't agree with their opinion,
then the floodgates will open
because in -: So, are you
arguing litigation privilege?
-: I have multiple arguments
starting with the qualified...
I would argue, Your Honor, to start
that with the qualified judicial immunity
that they're entitled to because they-
-: Why is the probable cause expert entitled
to quasi-judicial immunity?
-: Because what, and this actually rolls
into the prosecutorial immunity,
which is also argued in the brief
because they are serving as an arm of the prosecutor.
-: Okay, so not quasi-judicial,
but prosecutorial
immunity? -: Yes.
-: Okay.
So, Dr. Weir might be entitled to prosecutorial immunity.
How do you get around the Kalina case?
-: Well, the Kalina case
is all about whether the witness
is a complaining witness.
That's the standard.
And what happened in that case,
the district attorney filed an application.
He filed an affidavit basically with factual allegations
that the court said, you know,
"This isn't even necessary for this filing
by a district attorney."
It's unusual for the district attorney
to file this type of affidavit with factual statements.
So really, he took himself
out of the role of a district attorney and became-
-: Was it, just to clarify,
'cause you were more familiar with this than I am,
but I thought Kalina
was about the necessity of the prosecutor
being the signatory to the affidavit,
not whether or not the affidavit was required at all.
It seemed like there needed to be an affidavit, right?
Attorney Walton: Correct.
-: Okay, so it was the role of the prosecutor
as the signatory to the affidavit that was problematic?
-: That's correct, Your Honor.
-: And I- -: And that-
-: That's what I- -: And so why
isn't that more like Rouse-Weir?
-: Because in Rouse-Weir, as I mentioned,
the Bruno case requires experts for these two roles.
The DA needs an expert
or they don't get by the probable cause hearing.
It's a necessary prosecutorial function.
-: It's you separate the prosecutorial function
by whether or not there's a court role
versus an investigative role.
For one, if you act like a cop, you get sued like a cop.
That's how I was always told.
Attorney Walton: Yes.
-: And cops only get qualified.
-: Right, because the investigatory
-: And, Your Honor, I apologize if I missed your question.
-: No, so the question is when we look at Rouse-Weir
under prosecutorial immunity, isn't the issue
of whether or not she's fulfilling a court role?
She's testifying in a probable cause hearing, right?
-: Well, I think that the standard
for prosecutorial immunity
or the best case on that particular issue
is the CM case by this case where,
by this court, excuse me,
where the court held that absolute prosecutorial immunity
protects the social worker
initiating a care and protection proceeding.
And that case is almost identical procedurally.
I mean, it's, you know, you change the names
and obviously, this involves doctors
and that involves the social worker,
but it's right on point and in-
-: But Rouse-Weir didn't initiate this proceeding.
She was an expert on behalf of the Commonwealth
that initiated the proceeding.
-: I agree.
But she, her role, the proceeding
never could have gotten to where it got to.
-: Yeah, the Commonwealth couldn't meet its burden of proof
without her.
-: Right, which
wraps her- -: And so,
any evidence submitted to meet the burden of proof
is immune under prosecutorial immunity?
-: If it's done in good faith.
I mean a,
an expert- -: If he alleges
it was malicious, not in good faith.
-: But what I would say that is there are no allegations
to support that.
If you're gonna make an allegation against somebody,
a professional, and say you did something malicious
or intentional wrong, then you have to come up with more
in your complaint or somewhere to support those allegations.
In saying that Dr. Rouse-Weir
because she allegedly, she says she didn't,
but I'll accept that is true for here
that because that's the Rule 12b9 Standard.
If she deleted 27 pages,
that's we all write expert reports
or experts write expert reports.
Sometimes they add information,
sometimes they take information away.
I'm sure Your Honor's write opinions where you add parts
and you take parts away.
There's gotta be more to rise to the level of bad,
allegedly bad conduct by a professional than what's
alleged- -: So I was
a little confused by that because I thought
you were arguing absolute immunity,
which doesn't matter if it was good faith, bad faith,
maliciously, intentionally, it doesn't matter.
Now it sounds like your move to qualified immunity,
which in which those kind of things do matter.
-: Well, my, in what I was getting to
is that in my view, all of these immunities,
not every single immunity that exists,
but the ones that we've talked about in our brief,
they are all independent grounds.
So, the court may not agree with me
on one of the immunities,
but there is, there's another immunity exists.
So, that was the next argument I was gonna make,
which is absolute immunity.
In this court, in the Schreiber case,
I wrote this quote down exactly
because I think it applies exactly held that,
"Statements made by a party counsel or witness
in the institution of or during the course
of a judicial proceeding
are absolutely privileged and protected,
provided such statements relate to that proceeding."
-: Now that was my question to you initially,
which is why, you know,
are you arguing litigation privilege,
which is what that Schreiber case is all about.
It sounds like yes, you are.
Attorney Walton: Yes.
-: And was that an argument that you raised below?
-: We did not raise that below.
-: [Justice Wendlandt] Given that posture, what do we do?
-: Well, I think the Covidien case also by this court says
"That it is well established that on appeal,
the SJC may consider any ground
apparent on the record that supports the result
reached in the lower court."
That's the case I would cite too.
And so, the lower court got it right.
They reached the right result.
They did not address and perhaps counsel did not address
every single immunity that is now discussed in our brief.
And you know, that's obviously a very legitimate question
but I think the Covidien case saves it.
And I would conclude
just 'cause I don't wanna cut off Attorney Murray
that I do believe all of these immunities
that are discussed in our brief
and in the 12b9 standard provide independent basis
to support the lower court's decision.
Before I sit down,
are there any more questions for me, Your Honors?
Justice: I don't think so.
-: Thank you.
-: And Mr. Mackie, I think you were asking,
your motion was for Attorney Murray not to?
George Mackie: Testify.
-: Okay, so I'm going to deny that
motion. -: Okay.
(faintly speaking)
-: Good morning and may it please the court,
Mary Murray for Amicus Department of Correction.
Thank you for extending the invitation
on our motion to be permitted to argue.
Two grounds in the Joss case
support affirming the superior court.
First, I'll pick up with the litigation privilege.
The litigation privilege applies
regardless of malice, bad faith,
or nefarious motive according to the facetious decision
cited in the department's papers 490 Mass. at 150.
Judge Donatelli in the Superior Court, in her opinion,
appears at page 53 of amicus brief,
in footnote 4, indicates
that it appears Dr. Joss' statements
in the SDP probable cause hearing and jury trial
are protected by the litigation privilege.
So she, Judge Donatelli herself, raised that issue.
The litigation privilege, of course,
protects all of the witnesses,
lay witnesses, expert witnesses,
the parties and counsel.
Otherwise, where would it end?
If Dr. Joss and Dr. Rouse-Weir
unhappy with the outcome of, if they prevail,
can they turn and sue Mr. Mackie for defamation?
If there's no litigation privilege, what would stop them?
And then, somebody's unhappy with that
and we have more litigation about litigation.
And there's no need for that here,
because Chapter 123A's own robust procedures
protect against wrongful incorrect commitments
as detailed in amicus is brief.
There are the right to counsel,
the right to receive the reports.
And indeed you heard in the earlier arguments
with respect to Dr. Rouse-Weir,
that there were 27 paragraphs missing.
The way that that's known
is because both reports were turned over.
If otherwise, you wouldn't know
that there were this allegation about that.
The reports are made available.
Particularly the QE reports by statute are completed
within 45 days of the finding of probable cause.
They're filed with their court. They're made available.
The individual has the right to call his own experts
to cross-examine, to appeal,
to have process issued, to secure witnesses
and funds for lawyers and experts if indigent.
Robust procedures.
Turning to the question of quasi-judicial immunity.
This court said in Johnstone,
within Chapter 123A's statutory scheme,
the qualified examiners are, and I quote,
"established as independent court appointed experts."
A few paragraphs later, this court pointed out
the QE are the only experts appointed by the court
under Chapter 123A.
And the question of who pays them is immaterial,
because in Leland where the psychiatrist
performing the probate court evaluation
of family members relative to a visiting scheduling issue
was paid by the father, one of the parties.
The Department of Correction is not a party
in an SDP proceeding.
The Commonwealth is the party.
I know that it sometimes confuses people,
because department attorneys have been asked
by the Attorney General to represent the Commonwealth.
And the Attorney General, of course, has the authority
to make such a designation
under her statutory right and authority.
But the department is not,
the department only has the right to file a petition.
And when that petition is filed,
if the department thinks it's appropriate,
the court still has to appoint QEs
and order their evaluations.
And the QEs conduct their evaluations
only in the context of a pending proceeding
under court order.
The statute in chapter, in the initial commitment cases,
once probable cause is found,
the court shall order evaluation by two QEs.
When a Section 9 petition is filed,
the court shall order evaluation by QEs.
And there are other protections.
The qualified examiners have to follow-
-: The Rouse-Weir is entitled to litigation privilege.
and Joss is entitled to quasi-judicial?
-: Yes, and litigation privilege.
And there may be some other privileges,
but those were the ones the court invited Amicus to address
and those, and that's what we addressed in the Joss case.
Absolutely.
Given the consistency and longevity of this court
saying that the QEs conduct court appointed evaluations
Sheridan, 1992, Connors, 2006, Sergeant, 2007,
Johnstone, 2009, Ganji, 2012,
this court said,
"That the QEs are court appointed experts,
but the Commonwealth must make sure
that the treatment center
gets the reports done on time."
It impose that burden on the Commonwealth
to keep the case moving forward,
which is reasonable enough.
It's the Commonwealth's petition
Chapman in Green-
-: I think, if anybody...
We're all set.