WEBVTT

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<v ->SJC 13614, in the matter of an impounded case.</v>

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<v ->Okay, Attorney Jellison, whenever you're ready.</v>

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<v ->Let's see what we got.</v>

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Good morning, and may it please the court.

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With the 2018 Criminal Justice Reform Act,

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the legislature made a policy decision

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that children under the age of 12

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do not have the capacity to commit crime,

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and it therefore decriminalized their conduct.

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It did so with the explicit intent

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to ensure that criminal records

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did not generate from that conduct

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because the legislature believed

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that they did more harm than good.

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That's the context in which we're answering the question

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of what the meaning of no longer a crime

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in General Law 276, section 100K(a)(2) means.

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And I'm asking the court to hold

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that that language makes eligible for expungement

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juvenile records generated from the conduct

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of children under the age of 12.

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I believe that both the plain meaning of that language

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and the legislative intent back up

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the request for that holding.

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So I would say, in 2013, when my client was alleged

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to have engaged in this conduct-

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<v ->Can I ask you just to deal</v>

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with the rest of that sentence,

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which at the time of expungement

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is no longer a crime except in cases

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where the elements of the original criminal offense

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continue to be a crime under a different designation.

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So that doesn't take us to,

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okay, this is a rape if he's not a juvenile?

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<v ->So I don't think so.</v>

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And I think that in that, the rest of that sentence,

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the thing that's doing the most work

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are the words under a different designation.

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So the crime is still the same,

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it's still under the same designation.

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And my assumption of what the legislature

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meant by that language is statutes are recodified.

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A statute is recodified, it's a different number,

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but it's the same conduct.

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A statute uses different language.

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So for example, we used to use the outdated

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and offensive terminology mental retardation

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in a lot of our statutes.

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We've now changed that to intellectual disability.

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I don't think someone could come in and say,

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I wanna expunge my conviction of assault and battery

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on a person who is mentally retarded

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using the outdated language,

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because that's changed to now intellectual disability.

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So it's my contention that that language

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is talking about something else.

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It's not talking about this situation

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where the age of the person is really the thing

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that makes it not a crime.

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And I think to the extent that that language

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makes this ambiguous in any way,

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we have to turn to the intent of the legislature.

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<v ->Can I ask you to stick with the plain meaning though,</v>

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because assault and battery is still a crime.

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And I think your opposing counsel says,

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and you agree with that, right?

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<v ->Yes.</v>
<v ->All right,</v>

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and what your opposing counsel says

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is that what the amendments do

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is provide a capacity kind of defense.

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You can't commit assault and battery

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or be charged for it until you're 12.

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<v ->That's correct.</v>

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<v ->So how does that fit with the</v>

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plain meaning of the statute?

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You're saying you win under plain meaning, you say.

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<v ->Yes.</v>

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<v ->But can you explain that to me?</v>

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<v ->Yes, so my argument under plain meaning,</v>

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and I think that even if this does not carry the day,

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it is certainly plausible

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and that we would move to the ambiguity.

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But my argument under plain meaning

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is that the conduct that my client

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was alleged to have engaged in in 2013,

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if he engaged in that conduct,

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meaning he is an 11-year-old,

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engaged in that conduct in 2023,

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it would no longer be a crime.

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It would not be criminalized.

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He could not be charged.

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There would be no record generated.

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<v ->Isn't that different than,</v>

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it would still be a crime.

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He could not be charged.

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Is there a difference there?

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<v ->So I don't think so.</v>

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And I wanna point to the fact that

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the change to section 52, 119 section 52,

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the term jurisdictional doesn't come up in that statute.

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I know that we see it as a jurisdictional statute.

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But it is really the definition of delinquent child.

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And to me, that's saying that capacity,

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subject matter jurisdiction and what's a crime

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are very tied up in one another.

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So we don't have subject matter jurisdiction

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or the court doesn't have subject matter jurisdiction

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over something unless it is a crime.

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And I think what they're saying is that

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when children this young are engaging in conduct,

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that is their conduct.

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Their conduct at that age is not a crime.

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And I'm looking to that,

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the fact that we're talking about the conduct

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of those children and less what that conduct is.

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<v ->If an 11-year-old kills somebody, that's not a crime.</v>

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Is that what you're saying?

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<v ->And so I thought if I might get this question,</v>

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I don't believe so.

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And given that there's no jurisdiction

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over children under 12,

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but I haven't looked at the particular murder statute

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under 119, so I would say I'm not sure.

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But any other conduct, 'cause there are special rules

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when it comes to murder,

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but any other conduct would not be a crime.

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<v ->So what do we do with the language,</v>

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'cause I'm also very interested in the second clause

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of that section that points to,

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it doesn't just say where it's not a crime.

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It says where the elements

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of the original criminal offense continue to be a crime

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under a different designation.

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This seems to me to be a conduct-based definition,

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and you're steering away from that.

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What are we supposed to do with the language

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that refers to elements of the original offense?

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<v ->Yeah, and I think I alluded to this.</v>

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Yes, I agree with you that it says elements.

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I agree that that relates to conduct,

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but I think that the end of the sentence matters there,

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and I think that when it says

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under a different designation,

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they're trying to say something with that.

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So I didn't read it to be as applicable

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to the situation because of that.

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I really think they were looking at where

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there's some sort of-

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<v ->So because rape is, these elements</v>

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of the original offense are still called rape?

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<v ->Right.</v>
<v ->Then that's-</v>

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<v ->And are still under the same code numbers.</v>

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That was my interpretation of it.

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But I think that where, as I said,

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I think that where there's at least a plausible,

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I think that where my interpretation is at least plausible,

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I think you really do have to go to the legislative intent.

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<v ->Can we look at context of this type of expungement</v>

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versus other types in the carve-out

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that you find for Chapter 265 offenses

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that's not included in K, but it's included in other?

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<v ->Sure.</v>

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<v ->If we look at that, is the argument that</v>

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the legislature, when they wanted to,

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carved out these crimes of violence

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for other types of expungement,

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but for K, because it's special,

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it may have been just intended for the marijuana cases,

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but K, because it's special,

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doesn't have the same restrictions.

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<v ->I would agree that that would support my argument,</v>

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that it's explicit in other statutes,

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but it's not explicit in this one, certainly.

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I believe that supports my argument.

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<v ->K is basically broader than the other expungements.</v>

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<v ->Absolutely, K is broader.</v>

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And I think there's good reason for that.

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I think if we delve into the legislative intent,

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the legislature is treating children under 12

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very differently than it's treating children over 12.

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It's providing very limited second chances

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for children over 12.

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It's providing very limited expungement

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for children over 12.

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But for children under 12,

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it is removing them from the system.

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And the language, to me, this court's language

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in Laszlo L., and I'm moving to the legislative intent,

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and if you want me to move back to the plain meaning,

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please let me know.

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But I'm moving on to the legislative intent,

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and this court has held that the legislature

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intended to make sure that for children under 12

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that their conduct doesn't result in a juvenile record

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that may later adversely affect a child.

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The legislature's goal of giving children

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in their position a second chance

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by removing the possibility of juvenile court adjudications

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with all of its intended consequences.

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The goal of protecting children under 12

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and children with a minor misdemeanor

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is from the long-lasting effects of involvement

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in the juvenile justice system.

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The language that Senator Brownsberger used

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when he talked about this,

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that they were decriminalizing childhood behaviors

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in an effort to cut the chains that hold people down

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when they're trying to get back up on their feet.

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You know, I think that one of the best indications

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that the legislature was not worried

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about these records no longer being in existence

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is that they will never be in existence.

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A child under the age of 12 cannot be charged.

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A record will not issue, and none of the reasons

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that you could use a record in the future

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would be, you'd be able to use for these children under 12.

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So these records will not exist anymore.

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I think if the legislature was concerned about that,

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they may have done something different.

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But instead, they removed these children entirely

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from the criminal legal system.

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They don't allow them to be charged with crimes.

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They don't allow them to be prosecuted.

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And they very explicitly said

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that they did not want these children to have records.

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They found that having juvenile records

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from this type of conduct where the child

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did not have capacity to commit a crime

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don't have any predictive value,

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and that they're more harmful than they are good.

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So to the extent that my reading

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of the statute is plausible,

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and I think perhaps there could be

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some different plausible readings of it,

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you look to the intent of the legislature,

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and the intent of the legislature is beyond clear.

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They did not wish for these children

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to be caught up in the juvenile legal system.

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They did not wish for these children

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to have the attendant consequences

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of the juvenile legal system,

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which include these records.

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<v ->I just wanna clarify.</v>

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So there are two issues, right?

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Whether or not he's entitled to try for expungement,

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and then whether he gets expungement.

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<v ->Correct, yes.</v>
<v ->Okay, so you're just saying,</v>

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right now you're just saying

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he should have the opportunity to apply?

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<v ->Yes, he should be eligible under 100(k)(a)(2),</v>

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and then, I mean, I would ask this court to remand

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to the juvenile court for a consideration

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of best interest of justice,

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and I think that some of the commonwealth's arguments,

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the venue for those is really within

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that best interest of justice step of this process.

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So, yes, I'm simply asking that children

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who had records created for conduct

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when they were under 12 be eligible for expungement

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under 100(k)(a)(2), and that the decisions

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of whether or not that's in the best interest of justice

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be made by a juvenile court judge upon petition,

263
00:11:38.160 --> 00:11:40.030
and that's what would happen in this case.

264
00:11:40.030 --> 00:11:42.350
<v ->I think there seems to be a little bit of dispute</v>

265
00:11:42.350 --> 00:11:46.170
in the briefing about records

266
00:11:46.170 --> 00:11:47.970
that are eligible for expungement

267
00:11:47.970 --> 00:11:50.700
and records that are not eligible for expungement,

268
00:11:50.700 --> 00:11:52.920
such that they will continue to exist

269
00:11:52.920 --> 00:11:56.070
even if your client were to be able

270
00:11:56.070 --> 00:11:58.830
to obtain expungement of expungeable records.

271
00:11:58.830 --> 00:12:01.950
Can you speak to what records will continue to exist

272
00:12:01.950 --> 00:12:03.390
versus what will not?

273
00:12:03.390 --> 00:12:06.090
I know you, in your brief, spoke about,

274
00:12:06.090 --> 00:12:10.170
wrote about the possible use of these in SDP proceedings,

275
00:12:10.170 --> 00:12:12.030
but I was interested in the arguments

276
00:12:12.030 --> 00:12:16.050
about arrest records and so forth in 4198(f).

277
00:12:16.050 --> 00:12:18.030
<v ->Yeah, so I think the best I can do</v>

278
00:12:18.030 --> 00:12:22.710
is point you to GLC 276, section 100(e),

279
00:12:22.710 --> 00:12:24.780
which gives a definition of expungement.

280
00:12:24.780 --> 00:12:27.540
So this is what's supposed to happen,

281
00:12:27.540 --> 00:12:29.760
the permanent erasure or destruction of a record

282
00:12:29.760 --> 00:12:33.450
so that no record, the record is no longer accessible to

283
00:12:33.450 --> 00:12:36.750
or maintained by the court, any criminal justice agencies,

284
00:12:36.750 --> 00:12:40.920
or other state agency, municipal agency, or county agency.

285
00:12:40.920 --> 00:12:43.890
So I think that that covers most records.

286
00:12:43.890 --> 00:12:48.890
I don't know internally what police officers do,

287
00:12:50.580 --> 00:12:53.490
like what police stations do, but from my reading

288
00:12:53.490 --> 00:12:55.680
of the definition of expungement in this statute,

289
00:12:55.680 --> 00:12:58.590
it would be that all records

290
00:12:58.590 --> 00:13:01.110
for criminal justice agencies would be

291
00:13:01.110 --> 00:13:03.243
either destroyed or no longer accessible.

292
00:13:04.140 --> 00:13:05.040
In some way, shape, or form,

293
00:13:05.040 --> 00:13:06.100
I don't know the mechanics of that,

294
00:13:06.100 --> 00:13:08.460
and I don't know if that answers your question well enough.

295
00:13:08.460 --> 00:13:09.293
<v ->Thanks.</v>

296
00:13:12.450 --> 00:13:13.590
<v ->Well, if there are no further questions,</v>

297
00:13:13.590 --> 00:13:14.823
then I'll wrap up.

298
00:13:15.680 --> 00:13:18.000
I think, for me, the touchstone of this

299
00:13:18.000 --> 00:13:20.520
is that the legislature made it

300
00:13:20.520 --> 00:13:22.860
so that these records will no longer exist.

301
00:13:22.860 --> 00:13:25.893
They were very clear about their reasons for doing that.

302
00:13:26.740 --> 00:13:31.200
And when you read this provision together,

303
00:13:31.200 --> 00:13:33.000
when you're looking at an ambiguous statute,

304
00:13:33.000 --> 00:13:35.130
you're looking at the legislative intent,

305
00:13:35.130 --> 00:13:37.380
you're looking at the fact that this is a remedial statute

306
00:13:37.380 --> 00:13:39.780
and needs to have liberal construction.

307
00:13:39.780 --> 00:13:42.990
If you look to the matter of impoundment case

308
00:13:42.990 --> 00:13:45.330
where this court looked,

309
00:13:45.330 --> 00:13:48.960
even when it was construing 276-100 A and B,

310
00:13:48.960 --> 00:13:53.130
it looked to 119 section 53

311
00:13:53.130 --> 00:13:55.860
to interpret the statute to the benefit of juveniles.

312
00:13:55.860 --> 00:13:57.900
And I think that when you look at all of that together,

313
00:13:57.900 --> 00:13:58.740
if we're seeing this,

314
00:13:58.740 --> 00:14:01.020
if I have a plausible reading of this statute

315
00:14:01.020 --> 00:14:02.490
and it is ambiguous,

316
00:14:02.490 --> 00:14:05.340
the intent, the fact that it's a remedial statute,

317
00:14:05.340 --> 00:14:09.580
and section 53 compels you to allow these types of matters

318
00:14:09.580 --> 00:14:11.460
to be eligible for expungement,

319
00:14:11.460 --> 00:14:12.963
and I would ask for a remand.

320
00:14:13.920 --> 00:14:15.113
Thank you.
<v ->Thank you.</v>

321
00:14:16.410 --> 00:14:17.243
Attorney Lee.

322
00:14:21.630 --> 00:14:22.463
<v ->Good morning.</v>

323
00:14:22.463 --> 00:14:23.310
May it please the court.

324
00:14:23.310 --> 00:14:25.110
Mary Lee, Assistant District Attorney

325
00:14:25.110 --> 00:14:27.690
from the Bristol District for the Commonwealth.

326
00:14:27.690 --> 00:14:30.420
The juvenile who was charged in this case

327
00:14:30.420 --> 00:14:32.340
is seeking a reversal of the denial

328
00:14:32.340 --> 00:14:35.130
of the motion for expungement.

329
00:14:35.130 --> 00:14:36.720
The standard of review is de novo

330
00:14:36.720 --> 00:14:38.820
because it is a question of law.

331
00:14:38.820 --> 00:14:43.643
And section 276, section 100 K itself requires

332
00:14:44.760 --> 00:14:47.610
that the person seeking expungement

333
00:14:47.610 --> 00:14:49.220
show clear and convincing evidence

334
00:14:49.220 --> 00:14:51.870
that the offense meets the provision.

335
00:14:51.870 --> 00:14:56.250
So the juvenile has moved under 100 K, A2,

336
00:14:56.250 --> 00:14:58.920
which is, in layman's terms,

337
00:14:58.920 --> 00:15:00.330
it was a crime when it was charged

338
00:15:00.330 --> 00:15:01.803
and it's no longer a crime.

339
00:15:02.640 --> 00:15:05.460
And I agree it doesn't just apply to marijuana,

340
00:15:05.460 --> 00:15:06.810
but the Commonwealth's position is that

341
00:15:06.810 --> 00:15:09.150
it does not apply to things that are still crimes,

342
00:15:09.150 --> 00:15:11.010
like rape and assault and battery,

343
00:15:11.010 --> 00:15:13.980
or assault and battery with substantial bodily injury,

344
00:15:13.980 --> 00:15:15.450
as in this case.

345
00:15:15.450 --> 00:15:17.200
And that if the legislature had meant

346
00:15:17.200 --> 00:15:20.670
to include the records that the juvenile

347
00:15:20.670 --> 00:15:22.200
was asking for, it would've been very easy

348
00:15:22.200 --> 00:15:26.010
for them to do so, either in 100 K,

349
00:15:26.010 --> 00:15:29.820
by saying anyone who was charged with an offense,

350
00:15:29.820 --> 00:15:32.850
who at the time of the crime was under the age of 12,

351
00:15:32.850 --> 00:15:34.740
may have their records expunged,

352
00:15:34.740 --> 00:15:37.470
or to do so in the same statute,

353
00:15:37.470 --> 00:15:39.600
in the statute that we're creating at the same time

354
00:15:39.600 --> 00:15:44.130
in the 2018 Act, section 100 F,

355
00:15:44.130 --> 00:15:45.600
where they actually talked about

356
00:15:45.600 --> 00:15:47.970
expunging juvenile records.

357
00:15:47.970 --> 00:15:49.380
When they talk about expunging,

358
00:15:49.380 --> 00:15:52.080
so the Commonwealth's point is,

359
00:15:52.080 --> 00:15:54.320
here, it is by no means clear

360
00:15:54.320 --> 00:15:57.390
that the defendant's position is correct.

361
00:15:57.390 --> 00:15:58.223
In fact, they have to put-

362
00:15:58.223 --> 00:16:00.180
<v ->But all the defendant needs to do</v>

363
00:16:00.180 --> 00:16:03.060
to get to the legislative intent

364
00:16:03.060 --> 00:16:05.910
and remedial statutes is to come up

365
00:16:05.910 --> 00:16:08.160
with a plausible reading.

366
00:16:08.160 --> 00:16:10.770
<v ->Right, to show some ambiguity, is that what you mean?</v>

367
00:16:10.770 --> 00:16:11.603
<v ->That's right.</v>

368
00:16:11.603 --> 00:16:14.250
<v ->So here, the legislature did not make</v>

369
00:16:14.250 --> 00:16:17.970
a clear statement in 100 K that would include

370
00:16:17.970 --> 00:16:20.190
the juvenile, because he has to bring in

371
00:16:20.190 --> 00:16:22.740
what they did to 119, section 52,

372
00:16:22.740 --> 00:16:24.720
the definition of delinquent child.

373
00:16:24.720 --> 00:16:27.210
But they did make a very clear statement

374
00:16:27.210 --> 00:16:30.180
in the juvenile expungement statute, 100 F,

375
00:16:30.180 --> 00:16:35.180
that says it has to comply with 100 I and 100 J.

376
00:16:35.490 --> 00:16:39.180
And 100 J says no sexual assaults against children,

377
00:16:39.180 --> 00:16:41.343
among many other serious crimes.

378
00:16:42.480 --> 00:16:44.400
<v ->That's the problem I had,</v>

379
00:16:44.400 --> 00:16:46.950
because when you read K, it's broad,

380
00:16:46.950 --> 00:16:49.050
and it could be ambiguous.

381
00:16:49.050 --> 00:16:50.790
But then when you go to the other,

382
00:16:50.790 --> 00:16:53.130
you go to 100 F, et cetera,

383
00:16:53.130 --> 00:16:55.800
it does have the car votes for serious crimes.

384
00:16:55.800 --> 00:16:57.990
And I just wonder if that works against you, actually.

385
00:16:57.990 --> 00:17:00.630
I know you're gonna say opposite, but just tell me.

386
00:17:00.630 --> 00:17:02.640
<v ->I understand that the inference you were drawing,</v>

387
00:17:02.640 --> 00:17:05.760
that that hurts me, and hurts the Commonwealth's position.

388
00:17:05.760 --> 00:17:06.990
And I disagree.

389
00:17:06.990 --> 00:17:09.060
The legislature has spoken specifically

390
00:17:09.060 --> 00:17:12.090
about what juvenile records may be expunged.

391
00:17:12.090 --> 00:17:13.560
When you have a specific statute

392
00:17:13.560 --> 00:17:17.100
versus a more general statute, which would be 100 K,

393
00:17:17.100 --> 00:17:19.800
you're governed by the specific statute, 100 F,

394
00:17:19.800 --> 00:17:22.740
which says you have to meet 100 J.

395
00:17:22.740 --> 00:17:24.030
<v ->So is your argument,</v>

396
00:17:24.030 --> 00:17:26.550
if we're looking at intent of the legislature,

397
00:17:26.550 --> 00:17:28.770
we should consider the entire expungement statute,

398
00:17:28.770 --> 00:17:30.420
the intent of the legislature

399
00:17:30.420 --> 00:17:33.960
is not to expunge child rape cases?

400
00:17:33.960 --> 00:17:34.793
<v ->Right.</v>

401
00:17:34.793 --> 00:17:35.850
And so this is important.

402
00:17:35.850 --> 00:17:39.210
First of all, under Doane's, this court's case in Doane's,

403
00:17:39.210 --> 00:17:40.860
it says you don't read in things.

404
00:17:40.860 --> 00:17:42.750
And the juvenile can only win here

405
00:17:42.750 --> 00:17:45.360
if you read in something that's not there.

406
00:17:45.360 --> 00:17:49.470
And if you ignore the explicit language

407
00:17:49.470 --> 00:17:51.660
of the legislature in 100 F.

408
00:17:51.660 --> 00:17:54.960
And I agree, this statute is to protect juveniles,

409
00:17:54.960 --> 00:17:57.960
it's to help juveniles, but not just juvenile defendants.

410
00:17:57.960 --> 00:18:01.170
It's also out there to protect sexual assault victims

411
00:18:01.170 --> 00:18:03.540
and the juvenile sexual assault victim here.

412
00:18:03.540 --> 00:18:05.490
And this 2018 act,

413
00:18:05.490 --> 00:18:07.350
there are many provisions throughout the act,

414
00:18:07.350 --> 00:18:09.870
and I'm sorry to have included such a large addendum.

415
00:18:09.870 --> 00:18:14.870
<v ->But going forward, as your opposing counsel points out,</v>

416
00:18:16.170 --> 00:18:18.330
there's never gonna be a record ever again

417
00:18:18.330 --> 00:18:20.940
for a kid under 11, or 11 and under, right?

418
00:18:20.940 --> 00:18:25.940
So going forward, there are never records here to expunge

419
00:18:26.880 --> 00:18:28.080
'cause they're not gonna be any, right?

420
00:18:28.080 --> 00:18:29.370
<v ->Right.</v>

421
00:18:29.370 --> 00:18:30.990
<v ->So we're dealing with this,</v>

422
00:18:30.990 --> 00:18:35.020
did the legislature intend to maintain

423
00:18:35.020 --> 00:18:38.310
all these old records

424
00:18:38.310 --> 00:18:41.280
when going forward, they're saying never,

425
00:18:41.280 --> 00:18:43.680
we're just not gonna have, if you're under 11,

426
00:18:43.680 --> 00:18:45.300
we don't want you to keep these things.

427
00:18:45.300 --> 00:18:47.010
Does that really make sense?

428
00:18:47.010 --> 00:18:49.410
<v ->I think it does make sense.</v>

429
00:18:49.410 --> 00:18:53.250
One, because the juvenile and the amicus brief

430
00:18:53.250 --> 00:18:54.960
is talking about, well, they should be treated the same.

431
00:18:54.960 --> 00:18:57.840
And it's like a repugnancy argument under Laszlo L.

432
00:18:57.840 --> 00:18:59.370
Of course, the legislature must have meant

433
00:18:59.370 --> 00:19:00.840
all these old records would be there.

434
00:19:00.840 --> 00:19:03.700
But the legislature knew

435
00:19:03.700 --> 00:19:06.540
that those old records would be there.

436
00:19:06.540 --> 00:19:10.650
And the legislature created an expungement provision

437
00:19:10.650 --> 00:19:12.930
in 100(f) for juvenile records,

438
00:19:12.930 --> 00:19:15.000
which would include people under 11.

439
00:19:15.000 --> 00:19:17.430
And yet they still put in that carve out,

440
00:19:17.430 --> 00:19:20.970
but not these types of cases, they're too serious.

441
00:19:20.970 --> 00:19:23.310
And so the legislature has struck that balance.

442
00:19:23.310 --> 00:19:24.930
And most respectfully,

443
00:19:24.930 --> 00:19:27.570
I certainly don't mean any disrespect to this court,

444
00:19:27.570 --> 00:19:30.360
but it is the legislature that determines

445
00:19:30.360 --> 00:19:31.620
where that line gets drawn.

446
00:19:31.620 --> 00:19:33.780
And the legislature determines what the balance is.

447
00:19:33.780 --> 00:19:36.120
And they said, don't expunge sexual assault cases.

448
00:19:36.120 --> 00:19:38.313
<v ->I'm confused though, just going forward.</v>

449
00:19:39.240 --> 00:19:42.220
And again, you know this much better than I do.

450
00:19:42.220 --> 00:19:47.220
If a 10-year-old sexually assaults going forward,

451
00:19:49.500 --> 00:19:53.100
there's never gonna be a record to expunge, right?

452
00:19:53.100 --> 00:19:54.450
'Cause they're all gonna be outside

453
00:19:54.450 --> 00:19:56.310
the juvenile justice system, right?

454
00:19:56.310 --> 00:19:58.290
Or is there gonna be records?

455
00:19:58.290 --> 00:19:59.670
<v ->So there are gonna be records</v>

456
00:19:59.670 --> 00:20:01.740
because if it gets reported to the police,

457
00:20:01.740 --> 00:20:03.330
even though charges can't be taken out,

458
00:20:03.330 --> 00:20:05.160
the police could create a report.

459
00:20:05.160 --> 00:20:07.800
There's gonna be probably DCF records

460
00:20:07.800 --> 00:20:09.630
if the system is working correctly.

461
00:20:09.630 --> 00:20:10.830
There will be records out there

462
00:20:10.830 --> 00:20:12.940
and DCF reports to the DA's office

463
00:20:12.940 --> 00:20:16.440
when there are crimes against children that are serious.

464
00:20:16.440 --> 00:20:18.480
And so the DA's office will have records.

465
00:20:18.480 --> 00:20:21.540
So even if the juveniles are taken out of the system,

466
00:20:21.540 --> 00:20:22.560
there are gonna be records.

467
00:20:22.560 --> 00:20:24.240
And then I just wanna speak to something

468
00:20:24.240 --> 00:20:25.950
my sister said to be clear.

469
00:20:25.950 --> 00:20:27.120
In terms of expungement,

470
00:20:27.120 --> 00:20:29.200
the records that are going to be expunged

471
00:20:29.200 --> 00:20:32.020
are the court records, the probation records,

472
00:20:32.020 --> 00:20:33.900
and then you get to CJIS.

473
00:20:33.900 --> 00:20:35.940
And that's the big difference

474
00:20:35.940 --> 00:20:39.300
between what is currently available publicly for juveniles

475
00:20:39.300 --> 00:20:40.680
and what is not.

476
00:20:40.680 --> 00:20:42.750
The juvenile in this case appears to be

477
00:20:42.750 --> 00:20:47.190
trying to prevent CJIS from reporting to DCF,

478
00:20:47.190 --> 00:20:49.280
to the early childhood for summer camps

479
00:20:49.280 --> 00:20:53.130
and early childhood matters,

480
00:20:53.130 --> 00:20:54.420
law enforcement, and the courts.

481
00:20:54.420 --> 00:20:57.390
Because everything else for juvenile stuff

482
00:20:57.390 --> 00:21:02.130
is already confidential by statute.

483
00:21:02.130 --> 00:21:03.150
In addition to that,

484
00:21:03.150 --> 00:21:06.300
this court in Attorney General versus District Attorney

485
00:21:06.300 --> 00:21:09.210
of the Plymouth District said that police records

486
00:21:09.210 --> 00:21:13.140
and district attorney's records do not get expunged.

487
00:21:13.140 --> 00:21:14.640
They do not get redacted.

488
00:21:14.640 --> 00:21:15.990
We get to keep our records.

489
00:21:15.990 --> 00:21:19.500
We just can't show them to anyone under 100Q

490
00:21:19.500 --> 00:21:20.670
of the new statute,

491
00:21:20.670 --> 00:21:22.680
which I'm not sure that statute was in place

492
00:21:22.680 --> 00:21:24.480
at the time of AG, I can't remember.

493
00:21:24.480 --> 00:21:26.910
It should, yes, it would have been.

494
00:21:26.910 --> 00:21:29.610
What gets expunged is the court records,

495
00:21:29.610 --> 00:21:33.660
commissioner probation, police records in the public log,

496
00:21:33.660 --> 00:21:37.500
which is 4198F, but sexual assault cases

497
00:21:37.500 --> 00:21:39.000
are not supposed to be in the public log.

498
00:21:39.000 --> 00:21:41.973
It should be in 4197D, already non-public.

499
00:21:43.640 --> 00:21:46.140
What I'm suggesting to the court

500
00:21:46.140 --> 00:21:48.840
is that not all the records get expunged.

501
00:21:48.840 --> 00:21:51.630
Additionally, because the record's about two people

502
00:21:51.630 --> 00:21:55.440
and not just one person, redaction is used

503
00:21:55.440 --> 00:21:57.720
rather than total expungement of the record

504
00:21:57.720 --> 00:21:59.940
so you'd take out information about the juvenile

505
00:21:59.940 --> 00:22:03.330
who's seeking expungement and not the victim himself.

506
00:22:03.330 --> 00:22:05.550
So the victim, I guess, could move for expungement

507
00:22:05.550 --> 00:22:07.320
of the entire record if he wanted to.

508
00:22:07.320 --> 00:22:10.320
<v ->Even with your qualification where you just said it,</v>

509
00:22:10.320 --> 00:22:13.950
going forward, there'll never be,

510
00:22:13.950 --> 00:22:14.940
the records we're dealing with

511
00:22:14.940 --> 00:22:16.380
for the expungement purposes,

512
00:22:16.380 --> 00:22:17.910
there's never gonna be a record

513
00:22:17.910 --> 00:22:22.757
for a 10-year-old sexual assault, nor, right?

514
00:22:25.050 --> 00:22:27.720
So going forward, we're never gonna have this issue.

515
00:22:27.720 --> 00:22:29.700
<v ->In court records.</v>
<v ->But we're gonna,</v>

516
00:22:29.700 --> 00:22:31.440
but that's what we're dealing with, right?

517
00:22:31.440 --> 00:22:33.090
<v ->Yes.</v>

518
00:22:33.090 --> 00:22:36.240
<v ->But you're saying, okay, the legislature intended</v>

519
00:22:36.240 --> 00:22:38.790
that to be the case going forward,

520
00:22:38.790 --> 00:22:42.060
but going backwards, we're gonna keep those things,

521
00:22:42.060 --> 00:22:44.100
even though, okay, I'm just trying to make sure

522
00:22:44.100 --> 00:22:44.933
I understand the practicality.

523
00:22:44.933 --> 00:22:46.050
<v ->That is my position,</v>

524
00:22:46.050 --> 00:22:48.210
because if the legislature wanted to say that,

525
00:22:48.210 --> 00:22:50.320
they would've carved that out

526
00:22:51.220 --> 00:22:53.550
in the juvenile expungement statute.

527
00:22:53.550 --> 00:22:55.530
<v ->So the legislature, can you respond to the argument?</v>

528
00:22:55.530 --> 00:22:58.383
I think it might be clearest in the reply brief,

529
00:22:59.820 --> 00:23:03.180
that an alternate, obviously the legislature

530
00:23:03.180 --> 00:23:08.180
essentially decriminalized everything for the under 12s

531
00:23:08.280 --> 00:23:12.810
through adjusting the jurisdiction of the juvenile court,

532
00:23:12.810 --> 00:23:15.120
but they equally could've put in a provision

533
00:23:15.120 --> 00:23:18.300
into every single statutory criminal law saying,

534
00:23:18.300 --> 00:23:20.400
except that it shall not be a crime

535
00:23:20.400 --> 00:23:22.080
if it's committed by someone under 12,

536
00:23:22.080 --> 00:23:23.490
and then had a separate statute

537
00:23:23.490 --> 00:23:24.930
about common law crimes, I suppose.

538
00:23:24.930 --> 00:23:27.090
And would you agree that if the legislature

539
00:23:27.090 --> 00:23:29.580
had done it that way, had amended every single criminal law

540
00:23:29.580 --> 00:23:33.093
to exempt children, that this would apply?

541
00:23:36.200 --> 00:23:38.490
<v ->I'm sorry, I have to take issue with your question,</v>

542
00:23:38.490 --> 00:23:41.610
because it's not our position that decriminalizes

543
00:23:41.610 --> 00:23:44.790
these actions, the conduct is still criminal.

544
00:23:44.790 --> 00:23:47.250
<v ->Oh, sorry, I totally understand your point on that,</v>

545
00:23:47.250 --> 00:23:49.260
but I just meant, they made it impossible

546
00:23:49.260 --> 00:23:53.730
to prosecute these offenses by virtue of adjusting

547
00:23:53.730 --> 00:23:55.500
the jurisdiction of the juvenile court,

548
00:23:55.500 --> 00:23:58.890
which is a very simple and easy way of doing that,

549
00:23:58.890 --> 00:24:01.020
and an alternative way would've put a note

550
00:24:01.020 --> 00:24:02.940
in every single criminal law, correct?

551
00:24:02.940 --> 00:24:05.430
<v ->So the way the legislature could've done this</v>

552
00:24:05.430 --> 00:24:10.430
is put in either 100F, where they've created

553
00:24:10.950 --> 00:24:12.780
the expungement for juvenile records,

554
00:24:12.780 --> 00:24:14.820
that all records of children under 12

555
00:24:14.820 --> 00:24:17.580
should be expunged, or can be expunged.

556
00:24:17.580 --> 00:24:20.640
Or they could've put another provision in 100KA

557
00:24:20.640 --> 00:24:25.640
to say all records of people under 12 can be expunged.

558
00:24:26.070 --> 00:24:27.570
But they didn't do either of those things.

559
00:24:27.570 --> 00:24:29.370
Instead, they created a statute that said

560
00:24:29.370 --> 00:24:31.080
juvenile records can be expunged,

561
00:24:31.080 --> 00:24:34.440
except for here, on sexual assault cases.

562
00:24:34.440 --> 00:24:37.900
And the reason would be that the 2018 Act

563
00:24:37.900 --> 00:24:42.900
is also a proponent of helping the investigation

564
00:24:43.470 --> 00:24:45.180
and resolution of sexual assault cases,

565
00:24:45.180 --> 00:24:47.253
and even gave sexual assault victims,

566
00:24:48.750 --> 00:24:50.070
gave them a Bill of Rights,

567
00:24:50.070 --> 00:24:52.710
and allowed them to find out the status of their cases,

568
00:24:52.710 --> 00:24:54.480
even when closed for many years.

569
00:24:54.480 --> 00:24:58.200
So someday, when this juvenile victim is an adult,

570
00:24:58.200 --> 00:25:01.230
he can go and look at his records at the police station,

571
00:25:01.230 --> 00:25:03.810
he can look at the records at the DA's office,

572
00:25:03.810 --> 00:25:07.020
and if they are expunged, he can't see them,

573
00:25:07.020 --> 00:25:10.110
or he can't see them with his cousin's name in them,

574
00:25:10.110 --> 00:25:12.810
if it's ordered expunged, despite his rights

575
00:25:12.810 --> 00:25:15.660
that are being given in 4197D,

576
00:25:15.660 --> 00:25:18.000
that's still in existence,

577
00:25:18.000 --> 00:25:22.520
and his right under the Victim's Right Statute in 250AB,

578
00:25:22.520 --> 00:25:26.380
and the 2018 Act itself that gives him a right

579
00:25:26.380 --> 00:25:28.710
to know the status of his case,

580
00:25:28.710 --> 00:25:31.440
because the legislature drew this balance.

581
00:25:31.440 --> 00:25:36.150
The legislature decided these specific things in 100KA2,

582
00:25:36.150 --> 00:25:38.970
no more, I'm sorry, 100K, no more than those,

583
00:25:38.970 --> 00:25:42.330
can be expunged, and juvenile records can be expunged

584
00:25:42.330 --> 00:25:45.720
if they meet 100J, which this does not,

585
00:25:45.720 --> 00:25:48.340
and we wanna make sure sexual assault victims

586
00:25:48.340 --> 00:25:51.210
get their fair shake in terms of getting access

587
00:25:51.210 --> 00:25:52.920
to their records or getting access to the status of a case.

588
00:25:52.920 --> 00:25:55.830
<v ->You mean those were the crime occurred</v>

589
00:25:55.830 --> 00:25:58.893
before the statute went into effect?

590
00:25:59.730 --> 00:26:03.300
I mean, 'cause those victims going forward

591
00:26:03.300 --> 00:26:06.240
aren't gonna have that ability, right?

592
00:26:06.240 --> 00:26:07.980
<v ->So victims going forward would be able</v>

593
00:26:07.980 --> 00:26:10.170
to get whatever records are at DCF

594
00:26:10.170 --> 00:26:12.510
or the police station or the DA's office

595
00:26:12.510 --> 00:26:13.650
because they don't fall within

596
00:26:13.650 --> 00:26:15.420
the expungement statutes at all.

597
00:26:15.420 --> 00:26:18.300
So going forward, records will be created,

598
00:26:18.300 --> 00:26:19.830
and they'll be in different places,

599
00:26:19.830 --> 00:26:23.733
not at CEGIS, not at the court, not at-

600
00:26:25.860 --> 00:26:28.990
<v ->So can the victims get that information</v>

601
00:26:31.770 --> 00:26:34.020
even if this is expunged?
<v ->If this is expunged?</v>

602
00:26:34.020 --> 00:26:35.610
<v ->Yeah, from other places?</v>
<v ->So that's my problem.</v>

603
00:26:35.610 --> 00:26:38.010
I included my record appendix, which I redacted

604
00:26:38.010 --> 00:26:40.650
because I wanted to make sure the juveniles

605
00:26:40.650 --> 00:26:43.050
are both protected, and also there was a graphic picture.

606
00:26:43.050 --> 00:26:45.120
I'm happy to provide an unredacted version

607
00:26:45.120 --> 00:26:46.983
to the court if you need it.

608
00:26:48.240 --> 00:26:51.450
The picture showed the injury that was in this case.

609
00:26:51.450 --> 00:26:54.210
So here, we have those records.

610
00:26:54.210 --> 00:26:57.000
If these get expunged, and we have to take out

611
00:26:57.000 --> 00:27:02.000
all reference to the juvenile, then in 10 years,

612
00:27:02.940 --> 00:27:05.550
the juvenile wants to come to us and say,

613
00:27:05.550 --> 00:27:07.920
oh, I'm sorry, the juvenile victim comes to us and says,

614
00:27:07.920 --> 00:27:11.070
oh, hey, I'm having, whatever, I'm going through therapy,

615
00:27:11.070 --> 00:27:13.830
or I'm fighting with my family, or I'm being gaslighted.

616
00:27:13.830 --> 00:27:14.910
I wanna see the records.

617
00:27:14.910 --> 00:27:16.860
And we're like, we can only show you the records

618
00:27:16.860 --> 00:27:19.290
that have no reference to the perpetrator

619
00:27:19.290 --> 00:27:21.330
because that's all been expunged.

620
00:27:21.330 --> 00:27:25.650
And he can't get them from us because of a 100(q).

621
00:27:25.650 --> 00:27:27.270
So we keep the records-
<v ->But are they,</v>

622
00:27:27.270 --> 00:27:29.170
they're not in other places right now?

623
00:27:30.360 --> 00:27:31.560
You said-
<v ->I have,</v>

624
00:27:31.560 --> 00:27:33.900
the DA's office has them, the court has that,

625
00:27:33.900 --> 00:27:35.040
and the police department would have it.

626
00:27:35.040 --> 00:27:37.470
The only people who would have to redact

627
00:27:37.470 --> 00:27:38.850
is the court.

628
00:27:38.850 --> 00:27:40.800
<v ->I'm confused, though, because you said that,</v>

629
00:27:40.800 --> 00:27:42.960
pursuant to the district attorney,

630
00:27:42.960 --> 00:27:45.090
to AG versus district attorney case,

631
00:27:45.090 --> 00:27:47.800
that the records that are held by the DA's office

632
00:27:47.800 --> 00:27:50.070
do not have to be expunged.

633
00:27:50.070 --> 00:27:51.930
So why do they fall within 100(q),

634
00:27:51.930 --> 00:27:56.070
which says no person shall make records expunged

635
00:27:56.070 --> 00:27:58.680
pursuant to, da, da, da, da, da, available for inspection

636
00:27:58.680 --> 00:27:59.850
in any form by any person?

637
00:27:59.850 --> 00:28:02.370
Why would those records be covered by 100(q)?

638
00:28:02.370 --> 00:28:05.040
<v ->So we get to keep those records unexpunged.</v>

639
00:28:05.040 --> 00:28:06.570
We don't have to go and destroy our records,

640
00:28:06.570 --> 00:28:08.580
but we can't show them to anybody under 100(q).

641
00:28:08.580 --> 00:28:10.290
That's what I read 100(q) to say.

642
00:28:10.290 --> 00:28:11.733
<v ->But they weren't expunged.</v>

643
00:28:13.360 --> 00:28:15.720
<v ->We have the unexpunged version of them.</v>

644
00:28:15.720 --> 00:28:18.210
We can't show the unexpunged version even to the victim

645
00:28:18.210 --> 00:28:19.770
if these get expunged.

646
00:28:19.770 --> 00:28:22.593
<v ->Because you read that-</v>
<v ->That's how I read that.</v>

647
00:28:23.850 --> 00:28:26.073
That we're prohibited from giving those out.

648
00:28:27.750 --> 00:28:30.870
<v ->So they're both expunged and not expunged.</v>

649
00:28:30.870 --> 00:28:33.570
<v ->They're unexpunged, so we have access to them,</v>

650
00:28:33.570 --> 00:28:34.890
the police have access to them,

651
00:28:34.890 --> 00:28:37.170
but we can't give them out to anybody,

652
00:28:37.170 --> 00:28:38.880
I think, including other law enforcement.

653
00:28:38.880 --> 00:28:40.677
That's how I'm reading 100(q).

654
00:28:43.000 --> 00:28:46.590
So the idea, I see my time is running out.

655
00:28:46.590 --> 00:28:50.340
The idea that just because there are no court records

656
00:28:50.340 --> 00:28:51.960
made for people who are under 12

657
00:28:51.960 --> 00:28:53.940
doesn't mean there won't be records.

658
00:28:53.940 --> 00:28:56.250
But those records that get created in the future

659
00:28:56.250 --> 00:28:57.910
won't even be subject to any expungement.

660
00:28:57.910 --> 00:29:00.090
<v ->Those records don't cause any problems</v>

661
00:29:00.090 --> 00:29:04.500
'cause they can't be distributed to, you know,

662
00:29:04.500 --> 00:29:08.040
anyone else, you know, if he's arrested,

663
00:29:08.040 --> 00:29:09.480
the police can look at it, but-

664
00:29:09.480 --> 00:29:12.273
<v ->The police can share it with the DA's office and DCF,</v>

665
00:29:13.110 --> 00:29:15.423
but I don't know that we could share it.

666
00:29:16.470 --> 00:29:18.120
I don't actually know that there's a provision

667
00:29:18.120 --> 00:29:20.550
covering just arrest records.

668
00:29:20.550 --> 00:29:23.460
Prior to the 2018 Act, there was no expungement statute,

669
00:29:23.460 --> 00:29:26.610
there was, the sealing statutes covered it,

670
00:29:26.610 --> 00:29:29.490
and juvenile records were not considered quarry,

671
00:29:29.490 --> 00:29:30.660
but they were still protected

672
00:29:30.660 --> 00:29:34.590
because of Chapter 119, Section 60A.

673
00:29:34.590 --> 00:29:36.030
So I'm not sure that those records

674
00:29:36.030 --> 00:29:38.280
would even fall within protections,

675
00:29:38.280 --> 00:29:41.370
except for the police, because they fall under 4197(d),

676
00:29:41.370 --> 00:29:42.240
they're not public record

677
00:29:42.240 --> 00:29:44.033
when they're sexual assault records.

678
00:29:45.510 --> 00:29:46.410
<v ->Okay.</v>
<v ->If there are any</v>

679
00:29:46.410 --> 00:29:48.840
other questions, I'm happy to answer them.

680
00:29:48.840 --> 00:29:50.850
Otherwise, I would ask that the judge's decision

681
00:29:50.850 --> 00:29:52.100
be affirmed in this case.