WEBVTT

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<v ->SJC-13558,</v>

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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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<v ->Okay, Mr. Mackie, you're up first.</v>

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<v ->May it please the court, my name is George Mackie</v>

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and I'm a pro se litigant in both cases.

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I am here to say

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that neither Dr. Joss nor Dr. Rouse-Weir

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should be entitled to any type of immunity whatsoever.

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There were violations of the statute

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and common law based on the contents of both reports.

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And the statute

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does not specifically state

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that they're entitled to immunity.

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And whereas the qualified examiner

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is only qualified through the Department of Corrections,

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which is 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 a qualified examiner

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can be qualified is through the Department of Corrections.

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In the case of Dr. Rouse-Weir,

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she was hired by the Worcester County District Attorney.

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Now, that particular portion of the statute

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is not a requirement

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for determination

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of SDP.

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That is based be on the fact

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of the district attorney wanting to look at that issue.

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As far as Dr. Joss,

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his immunity should not be allowed

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based on the fact that, 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 to speak to you here today,

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because the decision as SDP

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was overturned by the Appeals Court.

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The DA could have hired any psychologist

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to, you know, to present information.

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They did not.

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They chose to hire a qualified examiner

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qualified through the Department of Corrections.

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The qualified examiners also serve

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as on the CAB Board

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for the Department of Corrections,

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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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<v ->So if the qualified examiner</v>

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doesn't find the person sexually dangerous, the case ends.

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<v George Mackie>Correct.</v>

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<v ->So, they have a sort of a finality role as well</v>

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in the judicial process.

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It's quite unusual.

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<v ->Yes.</v>

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However, as in this, in my case with Dr. Joss,

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after the Appeals Court overturned the decision of SDP

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based on use of non-convictions,

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the

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we'll say the other, next two QEs

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that I interviewed with

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found me not sexually dangerous

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based on the Appeals Court's decision

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as far as what can and can't be in these reports.

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Dr. Joss has also made other errors in other cases,

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as I stated in the brief.

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Dr. Rouse-Weir removed 27 paragraphs of information

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after an interview.

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Now, in the defendant's brief,

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they claim that, you know, Dr. Rouse-Weir

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was acting on behalf of the court as an expert witness

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and based her information on,

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I don't wanna say an interview,

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I want to, based her information on an investigation.

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However, that investigation

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does not include

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an interview.

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It's all 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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<v ->[Justice Wendlandt] So, I have a question about that.</v>

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<v George Mackie>Okay.</v>

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<v ->So, she removes the 27 paragraphs,</v>

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but concludes the same conclusion.

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<v George Mackie>Correct.</v>

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<v ->How then, I guess I'm wondering,</v>

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you know, what your claim is

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as to the 27 paragraphs

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like that, you know, that she misstated,

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that she, but how did that affect you

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the removal of the 27

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paragraphs?
<v ->I believe</v>

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that she saw that as possible,

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what's the word I'm looking for?

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<v ->[Justice Wendlandt] Exculpatory.</v>

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<v ->Exculpatory evidence.</v>

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So if she removed it, she didn't have to testify to it

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because she said on the stand that she never saw it.

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However, if my, 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 Redgate,

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and I don't have the address in front of me,

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it does say qualified examiners cannot use information

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that you were not convicted of.

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And both of these,

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Dr. Rouse-Weir and Dr. Joss,

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based their decisions on those, 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

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as far as in Dr. Rouse-Weir's information.

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The argument by the defendants that the

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I did not provide information

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in my original complaint

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that allowed the judge to dismiss

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under Rule 12b6.

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I believe there was sufficient evidence,

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especially in the removal of 27 paragraphs

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and, you know, other information

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as far as 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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Made, 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 Leland

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was appointed by the Probation Department

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and not the DOC, the Appeals Court erred in both Mackie,"

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but however, the Probation Department

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does not qualify people who are allowed to testify

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at SDP cases.

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They do not-

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The Probation Department doesn't pick, you know,

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they pick the psychologist,

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but not from a small group of individuals

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who 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 allow in Chapman

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explicitly recognize that QE serve

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as though appointed by the court.

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The statute is interpreted way too overbroad

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in that situation, because nowhere in the statute

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does it say any of them are interpret,

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you know, appointed by the court.

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I'm sorry, please just trying to get through

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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 of a pedophilic disorder

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and violated my right to liberty and due process.

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Therefore, if any immunity was entitled,

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it would be abandoned due to the constitutional violation.

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And that also,

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you know, that's if any immunity,

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you know, you decide immunity,

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I mean, in the case of Annie Dookan

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and Farouk

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and the I believe the district attorney,

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all of their immunity was wiped out

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because of the violation

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of the statute in the drug cases.

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And I think there was an issue raised by the Appeals Court

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that she, the...

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I believe I found a case that said that there was,

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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

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is that the common law

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would decide that it would be equal.

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In other words, the civil law would cover the criminal law.

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The criminal law would 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 this or not,

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but I would like to object

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to the presentation

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of the Department of Corrections amicus brief

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based on the fact that it parallels

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the defendant's

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brief in its of itself.

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There are similar case laws used

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to make certain arguments in both issues.

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And in saying that, I would also like to object

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to her testimony here today.

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Okay.

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I don't know if I have to do that in writing

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or I can do it before or after, how that works,

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but I'd like to make that known.

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Are there any questions?

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<v Justice>I think we're all set.</v>

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<v ->All set?</v>

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<v Justice>All set.</v>

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Thank you.
<v ->Okay, thank you.</v>

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<v ->Okay, Attorney Walton.</v>

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<v ->Thank you.</v>

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May it please the court, my name is Ken Walton

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and together with my partner Patricia Gary,

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we represent Dr. Robert Joss,

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Dr. Katrin Rouse-Weir.

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And initially, Your Honors, I'd like to point out

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that we have agreed to split our time

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with attorney Mary Murray 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 any questions,

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and then turn it over to Attorney Murray.

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As set forth in the brief,

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I think there are numerous independent grounds

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supporting the Superior Court's dismissal of the lawsuits

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against both Dr. Joss and Dr. Rouse-Weir,

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both of whom 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.

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Dr. Rouse Weir for over 25 years.

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Initially, I'll start with the Rule 12b9 standard,

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which this court has articulated in the Lanier case,

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in the Sachs case.

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And then, of course, the Encinino case

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by the Supreme Court of the United States.

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Every plaintiff, whether they are representative,

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represented or pro se, has the obligation

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to set forth a clear statement of their case

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with, to quote,

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"plausibly suggesting an entitlement to relief."

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<v ->So, the issue in this case</v>

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is this kind of hybrid model

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because, clearly, they're paid for

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by the DOC and similar to that of a expert witness

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hired by the government in say a NGI

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or criminal responsibility case,

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but they are also statutorily appointed or mandated.

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And you can't get a SDP case without two QEs,

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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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<v ->Thank you, Your Honor.</v>

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So on that question, in this case to be clear,

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Dr. Joss was a QE.

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That was his job.

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Dr. Rouse-Weir was hired by the District Attorney's Office

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to assist with the probable cause procedure or hearing

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that precedes the actual former hearing.

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But I think it's important,

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and this court articulated it in the Bruno case,

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that both of those roles are statutorily required.

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Now is the district attorney's retention of an expert

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articulated explicitly in the statute?

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No, it's not.

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However, it is a necessary element

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for the district attorney

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to be able to get over the probable cause standard.

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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 of these things

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for the district attorney to get through

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the probable cause finding

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and then also-
<v ->But the difference</v>

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00:16:32.100 --> 00:16:34.590
between the two is that the QE,

268
00:16:34.590 --> 00:16:38.940
regardless of the outcome

269
00:16:38.940 --> 00:16:40.800
of their investigation

270
00:16:40.800 --> 00:16:44.580
and whether they conclude that the person

271
00:16:44.580 --> 00:16:49.170
is an SDP or not, must submit that report to the court.

272
00:16:49.170 --> 00:16:51.630
Whereas the probable cause expert,

273
00:16:51.630 --> 00:16:53.850
the DA can keep hiring whoever they want to

274
00:16:53.850 --> 00:16:55.657
until they get somebody who will say,

275
00:16:55.657 --> 00:16:59.130
"Yeah, this person's an SDP."

276
00:16:59.130 --> 00:17:00.150
<v ->That's very true.</v>

277
00:17:00.150 --> 00:17:03.360
<v ->So, that makes them different in kind to me.</v>

278
00:17:03.360 --> 00:17:06.840
So, the QE seems more like in a court-appointed expert

279
00:17:06.840 --> 00:17:10.648
because you, the DA, don't control

280
00:17:10.648 --> 00:17:13.620
whether that report comes to the court or not.

281
00:17:13.620 --> 00:17:16.200
<v ->I think that that distinction is true.</v>

282
00:17:16.200 --> 00:17:20.890
However, the immunities that provide expert witnesses

283
00:17:21.930 --> 00:17:24.600
immunity not only in this context,

284
00:17:24.600 --> 00:17:28.290
but in really any civil case or criminal case.

285
00:17:28.290 --> 00:17:32.040
Because if you have a case going to trial on the civil level

286
00:17:32.040 --> 00:17:35.670
or the criminal level, you're going to have two experts.

287
00:17:35.670 --> 00:17:38.640
They are going to have two different opinions.

288
00:17:38.640 --> 00:17:41.160
That's just the nature of the beast.

289
00:17:41.160 --> 00:17:45.990
So if the new standard is that you can sue an expert

290
00:17:45.990 --> 00:17:48.150
because you don't like their opinion,

291
00:17:48.150 --> 00:17:50.820
because you don't agree with their opinion,

292
00:17:50.820 --> 00:17:53.280
then the floodgates will open

293
00:17:53.280 --> 00:17:54.210
because in
<v ->So, are you</v>

294
00:17:54.210 --> 00:17:56.620
arguing litigation privilege?

295
00:17:56.620 --> 00:17:59.640
<v ->I have multiple arguments</v>

296
00:17:59.640 --> 00:18:02.160
starting with the qualified...

297
00:18:02.160 --> 00:18:04.200
I would argue, Your Honor, to start

298
00:18:04.200 --> 00:18:07.140
that with the qualified judicial immunity

299
00:18:07.140 --> 00:18:10.080
that they're entitled to because they-

300
00:18:10.080 --> 00:18:12.510
<v ->Why is the probable cause expert entitled</v>

301
00:18:12.510 --> 00:18:14.730
to quasi-judicial immunity?

302
00:18:14.730 --> 00:18:18.180
<v ->Because what, and this actually rolls</v>

303
00:18:18.180 --> 00:18:21.540
into the prosecutorial immunity,

304
00:18:21.540 --> 00:18:23.730
which is also argued in the brief

305
00:18:23.730 --> 00:18:27.870
because they are serving as an arm of the prosecutor.

306
00:18:27.870 --> 00:18:29.520
<v ->Okay, so not quasi-judicial,</v>

307
00:18:29.520 --> 00:18:30.600
but prosecutorial

308
00:18:30.600 --> 00:18:31.433
immunity?
<v ->Yes.</v>

309
00:18:31.433 --> 00:18:32.266
<v ->Okay.</v>

310
00:18:32.266 --> 00:18:35.790
So, Dr. Weir might be entitled to prosecutorial immunity.

311
00:18:35.790 --> 00:18:38.490
How do you get around the Kalina case?

312
00:18:38.490 --> 00:18:41.520
<v ->Well, the Kalina case</v>

313
00:18:41.520 --> 00:18:44.490
is all about whether the witness

314
00:18:44.490 --> 00:18:47.040
is a complaining witness.

315
00:18:47.040 --> 00:18:48.390
That's the standard.

316
00:18:48.390 --> 00:18:50.100
And what happened in that case,

317
00:18:50.100 --> 00:18:53.520
the district attorney filed an application.

318
00:18:53.520 --> 00:18:58.230
He filed an affidavit basically with factual allegations

319
00:18:58.230 --> 00:18:59.415
that the court said, you know,

320
00:18:59.415 --> 00:19:03.030
"This isn't even necessary for this filing

321
00:19:03.030 --> 00:19:04.050
by a district attorney."

322
00:19:04.050 --> 00:19:06.840
It's unusual for the district attorney

323
00:19:06.840 --> 00:19:10.380
to file this type of affidavit with factual statements.

324
00:19:10.380 --> 00:19:12.720
So really, he took himself

325
00:19:12.720 --> 00:19:16.290
out of the role of a district attorney and became-

326
00:19:16.290 --> 00:19:18.210
<v ->Was it, just to clarify,</v>

327
00:19:18.210 --> 00:19:20.400
'cause you were more familiar with this than I am,

328
00:19:20.400 --> 00:19:23.040
but I thought Kalina

329
00:19:23.040 --> 00:19:27.390
was about the necessity of the prosecutor

330
00:19:27.390 --> 00:19:30.510
being the signatory to the affidavit,

331
00:19:30.510 --> 00:19:34.083
not whether or not the affidavit was required at all.

332
00:19:35.276 --> 00:19:38.823
It seemed like there needed to be an affidavit, right?

333
00:19:39.720 --> 00:19:40.553
<v Attorney Walton>Correct.</v>

334
00:19:40.553 --> 00:19:43.620
<v ->Okay, so it was the role of the prosecutor</v>

335
00:19:43.620 --> 00:19:47.443
as the signatory to the affidavit that was problematic?

336
00:19:47.443 --> 00:19:48.630
<v ->That's correct, Your Honor.</v>

337
00:19:48.630 --> 00:19:49.463
<v ->And I-</v>
<v ->And that-</v>

338
00:19:49.463 --> 00:19:50.296
<v ->That's what I-</v>
<v ->And so why</v>

339
00:19:50.296 --> 00:19:51.543
isn't that more like Rouse-Weir?

340
00:19:52.590 --> 00:19:56.460
<v ->Because in Rouse-Weir, as I mentioned,</v>

341
00:19:56.460 --> 00:20:01.460
the Bruno case requires experts for these two roles.

342
00:20:01.500 --> 00:20:03.420
The DA needs an expert

343
00:20:03.420 --> 00:20:06.270
or they don't get by the probable cause hearing.

344
00:20:06.270 --> 00:20:09.060
It's a necessary prosecutorial function.

345
00:20:09.060 --> 00:20:11.550
<v ->It's you separate the prosecutorial function</v>

346
00:20:11.550 --> 00:20:14.790
by whether or not there's a court role

347
00:20:14.790 --> 00:20:16.980
versus an investigative role.

348
00:20:16.980 --> 00:20:20.070
For one, if you act like a cop, you get sued like a cop.

349
00:20:20.070 --> 00:20:22.050
That's how I was always told.

350
00:20:22.050 --> 00:20:23.370
<v Attorney Walton>Yes.</v>

351
00:20:23.370 --> 00:20:25.053
<v ->And cops only get qualified.</v>

352
00:20:26.160 --> 00:20:27.860
<v ->Right, because the investigatory</v>

353
00:20:28.860 --> 00:20:31.920
<v ->And, Your Honor, I apologize if I missed your question.</v>

354
00:20:31.920 --> 00:20:36.630
<v ->No, so the question is when we look at Rouse-Weir</v>

355
00:20:36.630 --> 00:20:39.790
under prosecutorial immunity, isn't the issue

356
00:20:39.790 --> 00:20:42.750
of whether or not she's fulfilling a court role?

357
00:20:42.750 --> 00:20:46.170
She's testifying in a probable cause hearing, right?

358
00:20:46.170 --> 00:20:49.650
<v ->Well, I think that the standard</v>

359
00:20:49.650 --> 00:20:52.200
for prosecutorial immunity

360
00:20:52.200 --> 00:20:54.960
or the best case on that particular issue

361
00:20:54.960 --> 00:20:58.230
is the CM case by this case where,

362
00:20:58.230 --> 00:20:59.850
by this court, excuse me,

363
00:20:59.850 --> 00:21:03.750
where the court held that absolute prosecutorial immunity

364
00:21:03.750 --> 00:21:05.340
protects the social worker

365
00:21:05.340 --> 00:21:08.370
initiating a care and protection proceeding.

366
00:21:08.370 --> 00:21:11.580
And that case is almost identical procedurally.

367
00:21:11.580 --> 00:21:14.430
I mean, it's, you know, you change the names

368
00:21:14.430 --> 00:21:16.830
and obviously, this involves doctors

369
00:21:16.830 --> 00:21:18.240
and that involves the social worker,

370
00:21:18.240 --> 00:21:21.600
but it's right on point and in-

371
00:21:21.600 --> 00:21:24.420
<v ->But Rouse-Weir didn't initiate this proceeding.</v>

372
00:21:24.420 --> 00:21:27.390
She was an expert on behalf of the Commonwealth

373
00:21:27.390 --> 00:21:28.920
that initiated the proceeding.

374
00:21:28.920 --> 00:21:29.753
<v ->I agree.</v>

375
00:21:29.753 --> 00:21:33.630
But she, her role, the proceeding

376
00:21:33.630 --> 00:21:36.270
never could have gotten to where it got to.

377
00:21:36.270 --> 00:21:39.060
<v ->Yeah, the Commonwealth couldn't meet its burden of proof</v>

378
00:21:39.060 --> 00:21:40.080
without her.

379
00:21:40.080 --> 00:21:40.980
<v ->Right, which</v>

380
00:21:40.980 --> 00:21:41.910
wraps her-
<v ->And so,</v>

381
00:21:41.910 --> 00:21:45.810
any evidence submitted to meet the burden of proof

382
00:21:45.810 --> 00:21:49.320
is immune under prosecutorial immunity?

383
00:21:49.320 --> 00:21:51.420
<v ->If it's done in good faith.</v>

384
00:21:51.420 --> 00:21:52.253
I mean a,

385
00:21:52.253 --> 00:21:53.670
an expert-
<v ->If he alleges</v>

386
00:21:53.670 --> 00:21:55.950
it was malicious, not in good faith.

387
00:21:55.950 --> 00:21:59.730
<v ->But what I would say that is there are no allegations</v>

388
00:21:59.730 --> 00:22:00.810
to support that.

389
00:22:00.810 --> 00:22:03.210
If you're gonna make an allegation against somebody,

390
00:22:03.210 --> 00:22:07.140
a professional, and say you did something malicious

391
00:22:07.140 --> 00:22:11.100
or intentional wrong, then you have to come up with more

392
00:22:11.100 --> 00:22:15.360
in your complaint or somewhere to support those allegations.

393
00:22:15.360 --> 00:22:17.460
In saying that Dr. Rouse-Weir

394
00:22:17.460 --> 00:22:20.220
because she allegedly, she says she didn't,

395
00:22:20.220 --> 00:22:22.950
but I'll accept that is true for here

396
00:22:22.950 --> 00:22:26.370
that because that's the Rule 12b9 Standard.

397
00:22:26.370 --> 00:22:30.573
If she deleted 27 pages,

398
00:22:31.440 --> 00:22:33.960
that's we all write expert reports

399
00:22:33.960 --> 00:22:36.030
or experts write expert reports.

400
00:22:36.030 --> 00:22:37.740
Sometimes they add information,

401
00:22:37.740 --> 00:22:40.546
sometimes they take information away.

402
00:22:40.546 --> 00:22:44.580
I'm sure Your Honor's write opinions where you add parts

403
00:22:44.580 --> 00:22:46.350
and you take parts away.

404
00:22:46.350 --> 00:22:51.330
There's gotta be more to rise to the level of bad,

405
00:22:51.330 --> 00:22:55.500
allegedly bad conduct by a professional than what's

406
00:22:55.500 --> 00:22:56.333
alleged-
<v ->So I was</v>

407
00:22:56.333 --> 00:22:58.080
a little confused by that because I thought

408
00:22:58.080 --> 00:22:59.940
you were arguing absolute immunity,

409
00:22:59.940 --> 00:23:03.960
which doesn't matter if it was good faith, bad faith,

410
00:23:03.960 --> 00:23:06.750
maliciously, intentionally, it doesn't matter.

411
00:23:06.750 --> 00:23:09.900
Now it sounds like your move to qualified immunity,

412
00:23:09.900 --> 00:23:12.450
which in which those kind of things do matter.

413
00:23:12.450 --> 00:23:16.410
<v ->Well, my, in what I was getting to</v>

414
00:23:16.410 --> 00:23:19.860
is that in my view, all of these immunities,

415
00:23:19.860 --> 00:23:22.020
not every single immunity that exists,

416
00:23:22.020 --> 00:23:24.600
but the ones that we've talked about in our brief,

417
00:23:24.600 --> 00:23:26.520
they are all independent grounds.

418
00:23:26.520 --> 00:23:28.710
So, the court may not agree with me

419
00:23:28.710 --> 00:23:30.510
on one of the immunities,

420
00:23:30.510 --> 00:23:33.300
but there is, there's another immunity exists.

421
00:23:33.300 --> 00:23:35.880
So, that was the next argument I was gonna make,

422
00:23:35.880 --> 00:23:38.340
which is absolute immunity.

423
00:23:38.340 --> 00:23:40.350
In this court, in the Schreiber case,

424
00:23:40.350 --> 00:23:42.870
I wrote this quote down exactly

425
00:23:42.870 --> 00:23:45.577
because I think it applies exactly held that,

426
00:23:45.577 --> 00:23:48.780
"Statements made by a party counsel or witness

427
00:23:48.780 --> 00:23:51.120
in the institution of or during the course

428
00:23:51.120 --> 00:23:54.090
of a judicial proceeding

429
00:23:54.090 --> 00:23:57.480
are absolutely privileged and protected,

430
00:23:57.480 --> 00:24:00.900
provided such statements relate to that proceeding."

431
00:24:00.900 --> 00:24:02.760
<v ->Now that was my question to you initially,</v>

432
00:24:02.760 --> 00:24:03.840
which is why, you know,

433
00:24:03.840 --> 00:24:05.610
are you arguing litigation privilege,

434
00:24:05.610 --> 00:24:07.740
which is what that Schreiber case is all about.

435
00:24:07.740 --> 00:24:08.970
It sounds like yes, you are.

436
00:24:08.970 --> 00:24:09.803
<v Attorney Walton>Yes.</v>

437
00:24:09.803 --> 00:24:11.840
<v ->And was that an argument that you raised below?</v>

438
00:24:13.050 --> 00:24:15.613
<v ->We did not raise that below.</v>

439
00:24:15.613 --> 00:24:17.820
<v ->[Justice Wendlandt] Given that posture, what do we do?</v>

440
00:24:17.820 --> 00:24:22.357
<v ->Well, I think the Covidien case also by this court says</v>

441
00:24:22.357 --> 00:24:24.630
"That it is well established that on appeal,

442
00:24:24.630 --> 00:24:28.020
the SJC may consider any ground

443
00:24:28.020 --> 00:24:31.080
apparent on the record that supports the result

444
00:24:31.080 --> 00:24:32.880
reached in the lower court."

445
00:24:32.880 --> 00:24:34.860
That's the case I would cite too.

446
00:24:34.860 --> 00:24:39.474
And so, the lower court got it right.

447
00:24:39.474 --> 00:24:41.970
They reached the right result.

448
00:24:41.970 --> 00:24:45.690
They did not address and perhaps counsel did not address

449
00:24:45.690 --> 00:24:49.110
every single immunity that is now discussed in our brief.

450
00:24:49.110 --> 00:24:54.110
And you know, that's obviously a very legitimate question

451
00:24:54.360 --> 00:24:57.153
but I think the Covidien case saves it.

452
00:24:58.140 --> 00:24:59.040
And I would conclude

453
00:24:59.040 --> 00:25:02.500
just 'cause I don't wanna cut off Attorney Murray

454
00:25:03.420 --> 00:25:06.562
that I do believe all of these immunities

455
00:25:06.562 --> 00:25:08.250
that are discussed in our brief

456
00:25:08.250 --> 00:25:12.780
and in the 12b9 standard provide independent basis

457
00:25:12.780 --> 00:25:15.450
to support the lower court's decision.

458
00:25:15.450 --> 00:25:16.410
Before I sit down,

459
00:25:16.410 --> 00:25:18.993
are there any more questions for me, Your Honors?

460
00:25:19.890 --> 00:25:20.850
<v Justice>I don't think so.</v>

461
00:25:20.850 --> 00:25:21.720
<v ->Thank you.</v>

462
00:25:21.720 --> 00:25:24.780
<v ->And Mr. Mackie, I think you were asking,</v>

463
00:25:24.780 --> 00:25:29.670
your motion was for Attorney Murray not to?

464
00:25:29.670 --> 00:25:30.503
<v George Mackie>Testify.</v>

465
00:25:30.503 --> 00:25:32.303
<v ->Okay, so I'm going to deny that</v>

466
00:25:32.303 --> 00:25:33.843
motion.
<v ->Okay.</v>

467
00:25:33.843 --> 00:25:36.760
(faintly speaking)

468
00:25:39.630 --> 00:25:41.220
<v ->Good morning and may it please the court,</v>

469
00:25:41.220 --> 00:25:43.740
Mary Murray for Amicus Department of Correction.

470
00:25:43.740 --> 00:25:45.420
Thank you for extending the invitation

471
00:25:45.420 --> 00:25:49.260
on our motion to be permitted to argue.

472
00:25:49.260 --> 00:25:52.406
Two grounds in the Joss case

473
00:25:52.406 --> 00:25:55.230
support affirming the superior court.

474
00:25:55.230 --> 00:25:57.930
First, I'll pick up with the litigation privilege.

475
00:25:57.930 --> 00:26:01.440
The litigation privilege applies

476
00:26:01.440 --> 00:26:06.000
regardless of malice, bad faith,

477
00:26:06.000 --> 00:26:08.970
or nefarious motive according to the facetious decision

478
00:26:08.970 --> 00:26:13.687
cited in the department's papers 490 Mass. at 150.

479
00:26:15.420 --> 00:26:19.710
Judge Donatelli in the Superior Court, in her opinion,

480
00:26:19.710 --> 00:26:22.800
appears at page 53 of amicus brief,

481
00:26:22.800 --> 00:26:26.430
in footnote 4, indicates

482
00:26:26.430 --> 00:26:29.580
that it appears Dr. Joss' statements

483
00:26:29.580 --> 00:26:31.890
in the SDP probable cause hearing and jury trial

484
00:26:31.890 --> 00:26:34.110
are protected by the litigation privilege.

485
00:26:34.110 --> 00:26:38.643
So she, Judge Donatelli herself, raised that issue.

486
00:26:39.630 --> 00:26:41.190
The litigation privilege, of course,

487
00:26:41.190 --> 00:26:43.833
protects all of the witnesses,

488
00:26:45.840 --> 00:26:49.080
lay witnesses, expert witnesses,

489
00:26:49.080 --> 00:26:50.940
the parties and counsel.

490
00:26:50.940 --> 00:26:53.610
Otherwise, where would it end?

491
00:26:53.610 --> 00:26:56.220
If Dr. Joss and Dr. Rouse-Weir

492
00:26:56.220 --> 00:26:59.250
unhappy with the outcome of, if they prevail,

493
00:26:59.250 --> 00:27:02.790
can they turn and sue Mr. Mackie for defamation?

494
00:27:02.790 --> 00:27:05.760
If there's no litigation privilege, what would stop them?

495
00:27:05.760 --> 00:27:07.800
And then, somebody's unhappy with that

496
00:27:07.800 --> 00:27:11.133
and we have more litigation about litigation.

497
00:27:12.540 --> 00:27:14.790
And there's no need for that here,

498
00:27:14.790 --> 00:27:19.350
because Chapter 123A's own robust procedures

499
00:27:19.350 --> 00:27:24.350
protect against wrongful incorrect commitments

500
00:27:24.990 --> 00:27:27.480
as detailed in amicus is brief.

501
00:27:27.480 --> 00:27:29.820
There are the right to counsel,

502
00:27:29.820 --> 00:27:32.850
the right to receive the reports.

503
00:27:32.850 --> 00:27:35.880
And indeed you heard in the earlier arguments

504
00:27:35.880 --> 00:27:37.500
with respect to Dr. Rouse-Weir,

505
00:27:37.500 --> 00:27:39.720
that there were 27 paragraphs missing.

506
00:27:39.720 --> 00:27:40.650
The way that that's known

507
00:27:40.650 --> 00:27:43.020
is because both reports were turned over.

508
00:27:43.020 --> 00:27:44.670
If otherwise, you wouldn't know

509
00:27:44.670 --> 00:27:48.060
that there were this allegation about that.

510
00:27:48.060 --> 00:27:50.280
The reports are made available.

511
00:27:50.280 --> 00:27:53.010
Particularly the QE reports by statute are completed

512
00:27:53.010 --> 00:27:56.910
within 45 days of the finding of probable cause.

513
00:27:56.910 --> 00:27:59.310
They're filed with their court. They're made available.

514
00:27:59.310 --> 00:28:03.060
The individual has the right to call his own experts

515
00:28:03.060 --> 00:28:06.453
to cross-examine, to appeal,

516
00:28:07.350 --> 00:28:09.900
to have process issued, to secure witnesses

517
00:28:09.900 --> 00:28:12.663
and funds for lawyers and experts if indigent.

518
00:28:13.590 --> 00:28:15.420
Robust procedures.

519
00:28:15.420 --> 00:28:18.870
Turning to the question of quasi-judicial immunity.

520
00:28:18.870 --> 00:28:22.173
This court said in Johnstone,

521
00:28:23.550 --> 00:28:26.790
within Chapter 123A's statutory scheme,

522
00:28:26.790 --> 00:28:29.827
the qualified examiners are, and I quote,

523
00:28:29.827 --> 00:28:34.827
"established as independent court appointed experts."

524
00:28:34.830 --> 00:28:37.440
A few paragraphs later, this court pointed out

525
00:28:37.440 --> 00:28:41.310
the QE are the only experts appointed by the court

526
00:28:41.310 --> 00:28:43.440
under Chapter 123A.

527
00:28:43.440 --> 00:28:48.440
And the question of who pays them is immaterial,

528
00:28:48.645 --> 00:28:52.964
because in Leland where the psychiatrist

529
00:28:52.964 --> 00:28:55.350
performing the probate court evaluation

530
00:28:55.350 --> 00:28:59.460
of family members 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 --> 00:29:16.170
by the Attorney General to represent the Commonwealth.

538
00:29:16.170 --> 00:29:18.450
And the Attorney General, of course, has the authority

539
00:29:18.450 --> 00:29:19.860
to make such a designation

540
00:29:19.860 --> 00:29:24.150
under her statutory right and authority.

541
00:29:24.150 --> 00:29:25.470
But the department is not,

542
00:29:25.470 --> 00:29:28.500
the department only has the right to file a petition.

543
00:29:28.500 --> 00:29:30.390
And when that petition is filed,

544
00:29:30.390 --> 00:29:32.381
if the department thinks it's appropriate,

545
00:29:32.381 --> 00:29:35.700
the court still has to appoint QEs

546
00:29:35.700 --> 00:29:37.560
and order their evaluations.

547
00:29:37.560 --> 00:29:39.720
And the QEs conduct their evaluations

548
00:29:39.720 --> 00:29:42.450
only 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 chapter, 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 QEs.

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 QEs.

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 --> 00:30:06.060
<v ->The Rouse-Weir is entitled to litigation privilege.</v>

558
00:30:06.060 --> 00:30:09.150
and Joss is entitled to quasi-judicial?

559
00:30:09.150 --> 00:30:11.670
<v ->Yes, and litigation privilege.</v>

560
00:30:11.670 --> 00:30:13.380
And there may be some other privileges,

561
00:30:13.380 --> 00:30:15.493
but those were the ones the court invited Amicus to address

562
00:30:15.493 --> 00:30:18.450
and those, and that's what we addressed in the Joss case.

563
00:30:18.450 --> 00:30:20.130
Absolutely.

564
00:30:20.130 --> 00:30:22.980
Given the consistency and longevity of this court

565
00:30:22.980 --> 00:30:26.250
saying that the QEs conduct court appointed evaluations

566
00:30:26.250 --> 00:30:31.250
Sheridan, 1992, Connors, 2006, Sergeant, 2007,

567
00:30:31.380 --> 00:30:35.700
Johnstone, 2009, Ganji, 2012,

568
00:30:35.700 --> 00:30:36.533
this court said,

569
00:30:36.533 --> 00:30:39.210
"That the QEs are court appointed experts,

570
00:30:39.210 --> 00:30:40.860
but the Commonwealth must make sure

571
00:30:40.860 --> 00:30:41.820
that the treatment center

572
00:30:41.820 --> 00:30:44.517
gets the reports done on time."

573
00:30:45.360 --> 00:30:46.860
It impose that burden on the Commonwealth

574
00:30:46.860 --> 00:30:48.780
to keep the case moving forward,

575
00:30:48.780 --> 00:30:49.890
which is reasonable enough.

576
00:30:49.890 --> 00:30:51.520
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
<v ->I think, if anybody...</v>

579
00:30:57.570 --> 00:30:58.403
We're all set.