WEBVTT
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SJC-13625,
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in the matter of an impounded case.
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Okay, Attorney Russell.
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Good morning. Good morning, Your Honors.
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May I please the court, Lauren Russell,
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for the juvenile appellant.
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Children accused of committing delinquent acts,
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admit to sufficient facts
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and agree to abide by conditions of probation,
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imposed through a continuance without a finding
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for a variety of reasons.
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Among others, to secure their release
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from the Department of Youth Services,
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or to be able to return to school
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or to protect their parents
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from having to attend multiple court dates
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leading up to a trial date.
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Through that process, they do not admit guilt,
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and a judge does not determine guilt,
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even if a judge scrupulously honors the procedures required
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to protect the validity
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of the waiver of the rights they're making.
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Counsel, can I press you on something?
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Sure.
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So in Wallace W. we said,
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if this was after a delinquency adjudication
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and there was a CWOF that it would count, right?
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So all of those, the parade of horribles
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that you just described, that wasn't this case.
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This case was on for trial,
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it was on for bench trial, right?
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[Attorney Russell] Well, first it was on for arraignment.
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No, no.
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The day of the CWOF, it was on for trial.
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It was on for an arraignment
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when the CWOF had already been dismissed, a CWOF-
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I'm talking about the CWOF at issue.
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The one when he was 16,
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it was on for trial.
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[Attorney Russell] I actually don't know
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that the CARI wasn't clear to me on that fact that-
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Did you listen to the colloquy?
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Did you listen to the proceeding?
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I did not.
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The Wareham Juvenile Court case
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that resulted in a CWOF in December 20,
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sorry, June, 2022.
Yeah.
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I did not listen to.
That's the one
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we're talking about, right?
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Well, all that was known
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when my client was faced arraignment
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for a minor misdemeanor 18 months later,
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all that was known to anyone
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was that he had a CWOF on his record.
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And I don't think there was any information
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provided to the court by the Commonwealth
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which was the party (faintly speaks).
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But at least as we're sitting here today
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and trying to resolve this case,
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don't we have to look at what happened
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with that prior CWOF?
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I think that this court should set a rule
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for what to do when a CARI
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is before the court,
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which is really all that will most likely be,
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before the court when the Commonwealth moves
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for arraignment on a minor misdemeanor.
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Okay, well, let me just,
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let's say I disagree with you,
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but let's just say,
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let's just talk about the CWOF.
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Okay, so he was on for trial
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and prior to bench trial,
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the Commonwealth and the juvenile's lawyer come in
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and say, we have, a disparate tender on disposition,
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but we have an agreement as to the index CWOF.
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And in Wallace W. we said,
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if that matter had gone to trial
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and he was found adjudicated delinquent,
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and the court after the delinquency finding
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imposes a CWOF, that would count for Wallace W. purposes.
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Yes.
Why is it
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that it makes any practical sense
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that because it happened a half an hour before,
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where during the course,
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and I know you dismissed the procedural safeguards,
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but during the hearing, his mother's there,
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he's represented by counsel.
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The juvenile court judge goes through
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all of the important constitutional rights
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that he's giving up,
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his right to be convicted
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by a jury unanimously, or a judge,
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his right to cross examine
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and confront the witnesses,
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his right to present his own defense
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and testify in his own behalf.
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She gave all of the immigrate, all of the things,
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and importantly, the Commonwealth read into the record
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what they would have proven had the matter gone to trial.
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And he had to allocute to that,
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and he does allocute
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and says that he agrees
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with the Commonwealth's recitation of the facts
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underlying the assault and battery.
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Why isn't that tantamount to what we said in Wallace W.
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has to be proven beyond a reasonable doubt
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because he could be found guilty on that allocution?
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Well, I think, if that was the stipulation that was made,
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I'm not sure that that's an admission to sufficient facts.
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An admission to sufficient facts
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is by definition not an explicit acknowledgement of guilt.
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As someone who's practiced in juvenile court,
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I've seen an awful lot of admissions to sufficient facts
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that proceed by the prosecutor reciting the facts
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that they anticipate being able to prove at trial.
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And the juvenile being asked,
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"Do you agree that if this case went to trial,
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you could be found delinquent?"
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And the juvenile by saying yes to that
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is not stipulating to the truth of the facts,
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is not saying that he wouldn't have a defense
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that he would present at trial.
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He's saying that he's waiving the right,
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one of the rights that Your Honor did not mention
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is the right to be convicted
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based on proof beyond a reasonable doubt.
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So he's waiving that right by tendering a plea.
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And he agreed to that.
Right.
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He agreed in colloquy.
But,
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by waiving the right
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to proof beyond a reasonable doubt
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to this charge,
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one could not be waiving their right
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to jurisdiction on a future charge.
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You can't, jurisdiction can't be conferred through waiver.
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So in Wallace W. this court said,
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that proof beyond a reasonable doubt is critical.
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And when a CWOF follows from a trial verdict
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or a delinquent plea, where the stipulation is not,
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I agree that if this case went to be meant to trial,
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I could be found delinquent.
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But yes, I agree that those are the facts.
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I stipulate to the truth of those facts alleged
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by the Commonwealth during the plea colloquy.
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That's a different story.
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That's not a CWOF after an admission to sufficient facts.
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Well, at least as a practical matter,
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help me with this then.
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The whole point that we've said in Wallace W.
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in the criminal justice reform was,
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we didn't want juveniles
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because of their impetuous nature
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and the fact that they're not,
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their heads aren't fully formed, their cognitive abilities,
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that we want to be able to give them a strike essentially.
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And the whole point of that
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is that they get enough of a taste
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that they say, "I never want to come back here."
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And in this case,
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the index case we're talking about
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is an assault and battery
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with a slap across the face of the victim,
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which is what was read into the record
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during the colloquy.
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He's 16 years old.
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And we say, okay then that for purposes
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of don't come back,
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let's just assume for the sake of argument.
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But now he's back
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and now he's back,
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he's back on this two count delinquency complaint.
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And that prior case was adjudicated with this colloquy,
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it was on for trial for this colloquy.
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Why does that fit with what we said was the policy rationale
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behind Wallace W.
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where he got everything he was supposed to get?
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Right,
The taste.
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[Attorney Russell] And Wallace W. Himself
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also had multiple charges.
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Sure.
Very similar.
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Actually, the record was very similar
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to my clients when he came in
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and again, probable cause wasn't enough,
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proof beyond a reasonable doubt was required.
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And proof beyond a reasonable doubt is supplied
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when a CWOF enters after a delinquent plea,
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which is what this court said,
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and Wallace W. but a CWOF entered
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after an admission sufficient facts is different.
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It's not.
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But, why is it different?
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That's what I'm getting at.
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Because in this case,
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if we were to go back,
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it's a one witness case,
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and I'm not gonna hazard
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how long the Commonwealth would've put their case on,
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but I imagine the thing would've been 45 minutes.
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So if you're telling me that we put one witness on
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to testify to X, Y, and Z about the slap,
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because the recitation
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of the facts was about 30 seconds long.
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So, you're saying as a practical matter,
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Wallace W. would apply
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after a half an hour of a somebody testifying to a slap
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and the court finding delinquency
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and adjudication on delinquency,
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but because it happened before,
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when we go through all
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of the important constitutional rights he's waiving
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and we go through the recitation
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of what the Commonwealth would've proved.
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We go through all of the immigration consequences,
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we go through all of the waiver of motions to suppress,
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and after all of that process,
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it doesn't count.
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Why does that make sense?
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Because in the case of a trial,
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he's had the opportunity to present a defense
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and to challenge the evidence
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and in the case of a-
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Knowing intelligent waiver
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of that right,
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Yes.
is not enough?
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Right, because he can waive the right to that
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in order to dispose of the case
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without a continuance without a finding.
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Okay.
If,
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Go ahead.
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If we were to accept your position,
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I'm having a hard time understanding
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why the relief would be, as you suggest,
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to vacate the adjudication of delinquency
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on the disorderly conduct charge.
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Why wouldn't it simply be
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to remand for a Wallace W. hearing
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with respect to the earlier charge,
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the CWOF charge?
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Well, I think it's, I don't know
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that it's mutually exclusive in that, I think,
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that the Commonwealth could still proceed
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if they elected to retry my client
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for the disorderly conduct trial.
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Not retry.
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He's already been tried once.
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I'm saying, why wouldn't we just remand
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and say, now you have a Wallace W.
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inquiry hearing with respect to the earlier CWOF charge,
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Right.
the conclusion,
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let's say for all the reasons
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Justice Georges has pointed out,
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judge determines, oh, there, you know,
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there was evidence beyond a reasonable doubt that,
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that earlier offense had been committed
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and the delinquency adjudication
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on the disorderly conduct would stand,
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I mean, I don't understand
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why that wouldn't be the proper relief
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even if we were to accept your argument.
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Well, I agree that there would have to be,
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there would be the Wallace hearing
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on the continuance without a finding case.
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The Commonwealth, I think, could either establish
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that there was, that it did follow from a delinquent plea
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by listening to the transcript
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and proving that there was a stipulation
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to guilt beyond a reasonable doubt
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in that case is not entitled
So why isn't
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for Wallace W. hearing-
Okay, so,
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00:10:16.860 --> 00:10:20.700
why isn't all of the procedure
272
00:10:20.700 --> 00:10:22.953
and protections that accompany,
273
00:10:25.320 --> 00:10:30.240
a dismissal accompanied by a CWOF,
274
00:10:30.240 --> 00:10:32.850
accompanied by an admission to sufficient facts,
275
00:10:32.850 --> 00:10:37.470
why isn't that essentially the functional equivalent
276
00:10:37.470 --> 00:10:39.453
of a Wallace W. hearing?
277
00:10:43.650 --> 00:10:44.790
Well, I think the,
278
00:10:44.790 --> 00:10:47.550
to establish whether a CWOF flowed
279
00:10:47.550 --> 00:10:49.050
from an admission to sufficient facts
280
00:10:49.050 --> 00:10:50.730
or a delinquent plea
281
00:10:50.730 --> 00:10:52.800
is somewhat functionally equivalent
282
00:10:52.800 --> 00:10:54.600
to a Wallace W. hearing.
283
00:10:54.600 --> 00:10:56.340
I think that the, at Wallace W. hearing,
284
00:10:56.340 --> 00:10:59.190
the Commonwealth could choose
285
00:10:59.190 --> 00:11:00.780
to prove beyond a reasonable doubt
286
00:11:00.780 --> 00:11:01.710
the allegations
287
00:11:01.710 --> 00:11:04.320
or to prove that this particular CWOF
288
00:11:04.320 --> 00:11:08.610
came through circumstances that themselves supplied,
289
00:11:08.610 --> 00:11:09.630
proof beyond reasonable doubt,
290
00:11:09.630 --> 00:11:10.950
which would be after a trial verdict
291
00:11:10.950 --> 00:11:13.050
or after a delinquent plea.
292
00:11:13.050 --> 00:11:14.790
Isn't it gonna be the same thing though?
293
00:11:14.790 --> 00:11:16.290
Because we've said in,
294
00:11:16.290 --> 00:11:18.570
was it Nicholas N. that the rules
295
00:11:18.570 --> 00:11:22.650
of evidence don't apply to the strictly to the Wallace W.,
296
00:11:22.650 --> 00:11:25.200
here we have admission to all the sufficient facts.
297
00:11:26.253 --> 00:11:27.086
Right.
So isn't it gonna be
298
00:11:27.086 --> 00:11:30.337
sort of pointless redo
299
00:11:32.430 --> 00:11:33.990
and let me add another layer to it.
300
00:11:33.990 --> 00:11:38.990
After Wallace W., the first offense of a minor misdemeanor
301
00:11:40.050 --> 00:11:42.510
should not be even CWOF'd, right?
302
00:11:42.510 --> 00:11:44.010
It should just be dismissed.
303
00:11:44.010 --> 00:11:46.020
There's no jurisdiction,
304
00:11:46.020 --> 00:11:51.020
so we shouldn't have any of these things going forward.
305
00:11:51.203 --> 00:11:52.036
Well, there could still be
There are, sort of,
306
00:11:52.036 --> 00:11:54.000
historic relics, right?
307
00:11:54.000 --> 00:11:54.833
I don't think so,
308
00:11:54.833 --> 00:11:55.800
'cause there could still be CWOF
309
00:11:55.800 --> 00:11:59.070
on major misdemeanors or felonies in a client's past,
310
00:11:59.070 --> 00:12:00.840
which could be the alleged predicate
311
00:12:00.840 --> 00:12:02.130
for a minor misdemeanor.
312
00:12:02.130 --> 00:12:03.120
I gotcha. Okay.
313
00:12:03.120 --> 00:12:07.200
So that's how, that it would be CWOF on major misdemeanors
314
00:12:07.200 --> 00:12:08.033
Right.
that this would come by-
315
00:12:08.033 --> 00:12:09.480
Going forward, I think that's right
316
00:12:09.480 --> 00:12:13.140
and I think that most CWOFs,
317
00:12:13.140 --> 00:12:16.260
I think, at least in my experience,
318
00:12:16.260 --> 00:12:19.050
many continuances without findings have flowed
319
00:12:19.050 --> 00:12:21.240
from admissions to sufficient facts,
320
00:12:21.240 --> 00:12:22.830
not delinquent plea.
321
00:12:22.830 --> 00:12:24.840
So I don't think that it's gonna be
322
00:12:24.840 --> 00:12:25.673
Say that again.
323
00:12:25.673 --> 00:12:27.071
You lost me on that. Go ahead.
324
00:12:27.071 --> 00:12:28.740
I said that in my experience,
325
00:12:28.740 --> 00:12:30.420
most CWOFs that are entered,
326
00:12:30.420 --> 00:12:32.790
are entered when there's a plea.
327
00:12:32.790 --> 00:12:34.770
They're entered after an admission to sufficient facts,
328
00:12:34.770 --> 00:12:35.603
not a delinquent plea.
329
00:12:35.603 --> 00:12:37.050
Right.
The question,
330
00:12:37.050 --> 00:12:40.530
is usually framed as an admission to sufficient facts
331
00:12:40.530 --> 00:12:42.510
and the juvenile,
332
00:12:42.510 --> 00:12:44.390
and that's what results in a CWOF.
333
00:12:44.390 --> 00:12:46.500
So I don't think that it's gonna be,
334
00:12:46.500 --> 00:12:49.140
like the majority of cases going this way.
335
00:12:49.140 --> 00:12:51.747
Well, knowing again that you didn't say this,
336
00:12:51.747 --> 00:12:55.680
and I have communicated my request to the clerk
337
00:12:55.680 --> 00:12:57.960
because it should have been in the record,
338
00:12:57.960 --> 00:12:59.830
but I did get the hearing
339
00:13:01.380 --> 00:13:03.150
and did listen to the hearing,
340
00:13:03.150 --> 00:13:06.270
but a transcript of the hearing wasn't provided
341
00:13:06.270 --> 00:13:07.950
and neither was the tender of plea,
342
00:13:07.950 --> 00:13:09.480
which it should have been.
343
00:13:09.480 --> 00:13:12.300
So assume for the sake of argument
344
00:13:12.300 --> 00:13:15.030
that we follow what you just said a few minutes ago,
345
00:13:15.030 --> 00:13:16.590
if we were to look at
346
00:13:16.590 --> 00:13:18.690
what would be in front of a juvenile court judge
347
00:13:18.690 --> 00:13:21.570
or whomever would be holding the Wallace W. hearing,
348
00:13:21.570 --> 00:13:23.370
why can't we look at the plea,
349
00:13:23.370 --> 00:13:24.203
listen to it,
350
00:13:24.203 --> 00:13:25.320
look at the tender
351
00:13:25.320 --> 00:13:27.660
and make the determination as to whether or not
352
00:13:27.660 --> 00:13:30.003
it was tantamount to a Wallace W. hearing?
353
00:13:31.861 --> 00:13:33.210
I think because I think
354
00:13:33.210 --> 00:13:35.040
that would be sweeping under the rug,
355
00:13:35.040 --> 00:13:36.390
a jurisdictional defect.
356
00:13:36.390 --> 00:13:38.400
I think he had the right to jurisdiction
357
00:13:38.400 --> 00:13:39.540
during the proceedings
358
00:13:39.540 --> 00:13:43.290
and by everyone in the room missing unfortunately
359
00:13:43.290 --> 00:13:45.210
that this included a minor misdemeanor
360
00:13:45.210 --> 00:13:46.710
in this multi-count complaint.
361
00:13:48.300 --> 00:13:49.470
There was not jurisdiction,
362
00:13:49.470 --> 00:13:52.350
the proceedings and the judgment that resulted are void.
363
00:13:52.350 --> 00:13:54.990
So I don't think that can be fixed at this stage,
364
00:13:54.990 --> 00:13:57.210
in the manner that Your Honor suggests.
365
00:13:57.210 --> 00:13:58.290
Even with the CARI
366
00:13:58.290 --> 00:14:00.420
and knowing what in order for the CWOF
367
00:14:00.420 --> 00:14:01.830
to have been entered.
368
00:14:01.830 --> 00:14:02.790
Again, I know you say
369
00:14:02.790 --> 00:14:05.370
that the procedural safeguards aren't enough,
370
00:14:05.370 --> 00:14:08.490
but we know that the procedural safeguards are in there,
371
00:14:08.490 --> 00:14:11.670
or at least we can infer that they're there from the CARI
372
00:14:11.670 --> 00:14:14.790
'cause the CWOF entered, that's not enough?
373
00:14:14.790 --> 00:14:15.870
No, I think that it would have
374
00:14:15.870 --> 00:14:18.330
to happen in the juvenile court in the first instance.
375
00:14:18.330 --> 00:14:21.810
And I think that if the court found
376
00:14:21.810 --> 00:14:24.660
that he was not entitled to a Wallace hearing,
377
00:14:24.660 --> 00:14:27.600
I don't think that the trial that proceeded is enough.
378
00:14:27.600 --> 00:14:29.340
I think he's entitled to a retrial.
379
00:14:29.340 --> 00:14:30.333
Why, why not?
380
00:14:31.410 --> 00:14:32.370
Can you explain that?
381
00:14:32.370 --> 00:14:34.560
Because the jurisdiction of the juvenile court
382
00:14:34.560 --> 00:14:37.050
is over delinquent child.
383
00:14:37.050 --> 00:14:40.770
The Wallace W. hearing is just a way of figuring out
384
00:14:40.770 --> 00:14:44.130
whether or not the child qualifies.
385
00:14:44.130 --> 00:14:45.870
Right, and he was not alleged
386
00:14:45.870 --> 00:14:48.750
to be a delinquent child when he went to trial.
387
00:14:48.750 --> 00:14:51.453
Whatever the allegations may have been,
388
00:14:52.560 --> 00:14:56.190
isn't it enough to fix it post-talk?
389
00:14:56.190 --> 00:14:57.050
No, because I think he had a-
390
00:14:57.050 --> 00:14:58.410
To make the determination
391
00:14:58.410 --> 00:15:00.240
as to whether or not there was jurisdiction.
392
00:15:00.240 --> 00:15:02.700
Because if there was jurisdiction,
393
00:15:02.700 --> 00:15:05.793
this was not the first minor misdemeanor,
394
00:15:06.840 --> 00:15:10.500
then the court had jurisdiction the entire trial.
395
00:15:10.500 --> 00:15:11.970
Well, but I,
Regardless of,
396
00:15:11.970 --> 00:15:13.410
whether they did the Wallace W.,
397
00:15:13.410 --> 00:15:15.600
the Wallace W. is just a mechanism
398
00:15:15.600 --> 00:15:17.820
for figuring out whether or not
399
00:15:17.820 --> 00:15:19.470
the juvenile court had jurisdiction.
400
00:15:19.470 --> 00:15:21.900
Right, I think that in many instances
401
00:15:21.900 --> 00:15:23.850
it's not going to be perfectly clear
402
00:15:23.850 --> 00:15:26.040
so that the juvenile should have the opportunity
403
00:15:26.040 --> 00:15:28.980
to present evidence on this case.
404
00:15:28.980 --> 00:15:29.813
On the,
I'm just wondering
405
00:15:29.813 --> 00:15:31.380
about Justice Wolohojian's suggestion
406
00:15:31.380 --> 00:15:34.773
that the remedy here is a remand to determine,
407
00:15:35.640 --> 00:15:37.620
to have the Wallace W. hearing to determine
408
00:15:37.620 --> 00:15:39.903
if that first CWOF was,
409
00:15:41.220 --> 00:15:42.630
could be proved beyond a reasonable doubt.
410
00:15:42.630 --> 00:15:44.610
Right, I think it's to dismiss
411
00:15:44.610 --> 00:15:47.550
the disorderly conduct count as it stands now
412
00:15:47.550 --> 00:15:49.650
and allow the Commonwealth to either
413
00:15:49.650 --> 00:15:50.970
conduct a Wallace W. hearing.
Yeah, so that's my question.
414
00:15:50.970 --> 00:15:54.990
Why would one dismiss the count now?
415
00:15:54.990 --> 00:15:57.420
Because the judgment that results from proceedings
416
00:15:57.420 --> 00:15:59.280
conducted without jurisdiction are void.
417
00:15:59.280 --> 00:16:02.520
Right, so the question is, was there jurisdiction?
418
00:16:02.520 --> 00:16:04.110
If there was jurisdiction
419
00:16:04.110 --> 00:16:06.750
because one can prove beyond a reasonable doubt
420
00:16:06.750 --> 00:16:08.520
that the first CWOF entered,
421
00:16:08.520 --> 00:16:10.920
then the whole conviction is fine.
422
00:16:10.920 --> 00:16:12.000
Right, but I don't think there's,
423
00:16:12.000 --> 00:16:13.740
the answer to whether or not
424
00:16:13.740 --> 00:16:15.660
there is jurisdiction can be answered
425
00:16:15.660 --> 00:16:17.640
without the juvenile having an opportunity
426
00:16:17.640 --> 00:16:19.787
to present evidence to the juvenile court judge.
427
00:16:19.787 --> 00:16:20.620
[Justice Wolohojian] That's why you'd have
428
00:16:20.620 --> 00:16:22.140
the Wallace W. hearing
429
00:16:22.140 --> 00:16:24.778
Right at the Wallace W. hearing, so.
430
00:16:24.778 --> 00:16:26.963
[Justice Wendlandt] But it doesn't have to happen before.
431
00:16:28.380 --> 00:16:31.170
No, I think that if the Commonwealth established
432
00:16:31.170 --> 00:16:33.450
and there was no dispute that the adjudication
433
00:16:33.450 --> 00:16:36.000
that the CWOF entered after a trial verdict
434
00:16:36.000 --> 00:16:37.830
or a delinquency plea,
435
00:16:37.830 --> 00:16:39.930
then there would not have to be a Wallace W. hearing.
436
00:16:39.930 --> 00:16:41.490
In any other circumstances
437
00:16:41.490 --> 00:16:45.060
where there's any lack of clarity
438
00:16:45.060 --> 00:16:47.040
about how the CWOF arose,
439
00:16:47.040 --> 00:16:48.597
then there should be a Wallace hearing
440
00:16:48.597 --> 00:16:51.030
and the juvenile should have the opportunity
441
00:16:51.030 --> 00:16:51.863
to present evidence.
442
00:16:51.863 --> 00:16:53.790
And if it's determined
443
00:16:53.790 --> 00:16:55.660
that the Wallace hearing should have
444
00:16:56.610 --> 00:16:59.490
or that there was proof beyond reasonable doubt
445
00:16:59.490 --> 00:17:00.720
for the predicate offense,
446
00:17:00.720 --> 00:17:03.360
I still think that the disorderly conduct charge
447
00:17:03.360 --> 00:17:04.650
should have a retrial,
448
00:17:04.650 --> 00:17:06.930
if the Commonwealth is moving ahead with that.
449
00:17:06.930 --> 00:17:08.913
Why?
Because,
450
00:17:09.921 --> 00:17:10.830
I think that the juries,
451
00:17:10.830 --> 00:17:12.363
the proceedings were,
452
00:17:13.410 --> 00:17:15.750
I think it's sweeping it under the rug otherwise.
453
00:17:15.750 --> 00:17:18.810
No, I think with all due respect,
454
00:17:18.810 --> 00:17:21.273
there was either jurisdiction or there wasn't.
455
00:17:22.140 --> 00:17:24.840
The problem you've brought to us,
456
00:17:24.840 --> 00:17:26.610
the way I understand it
457
00:17:26.610 --> 00:17:28.863
is that that inquiry was not made,
458
00:17:31.140 --> 00:17:34.380
but if there was jurisdiction,
459
00:17:34.380 --> 00:17:36.030
then there's no problem
460
00:17:36.030 --> 00:17:38.190
with the delinquency adjudication
461
00:17:38.190 --> 00:17:40.500
on the disorderly conduct charge.
462
00:17:40.500 --> 00:17:43.620
If there wasn't jurisdiction then there was,
463
00:17:43.620 --> 00:17:46.500
but that question needs to be answered somehow.
464
00:17:46.500 --> 00:17:50.670
And it seems to me either we could say,
465
00:17:50.670 --> 00:17:51.823
as a matter of law,
466
00:17:51.823 --> 00:17:53.760
a CWOF prior to an adjudication
467
00:17:53.760 --> 00:17:56.430
of delinquency that never qualifies.
468
00:17:56.430 --> 00:17:57.780
We could say as a matter of law,
469
00:17:57.780 --> 00:17:59.970
an adjudication of delinquency
470
00:17:59.970 --> 00:18:02.520
of a CWOF prior to an adjudication
471
00:18:02.520 --> 00:18:04.860
of delinquency always qualifies.
472
00:18:04.860 --> 00:18:08.400
Or we could say and is let's say the functional equivalent
473
00:18:08.400 --> 00:18:10.590
of a Wallace W. hearing
474
00:18:10.590 --> 00:18:13.290
or we could remand for a Wallace W. hearing.
475
00:18:13.290 --> 00:18:14.760
I think those are the three options,
476
00:18:14.760 --> 00:18:16.660
unless you can think of one other one.
477
00:18:17.550 --> 00:18:18.900
No, I think that's right.
478
00:18:20.130 --> 00:18:22.930
Counsel, can you give your best answer for why
479
00:18:24.540 --> 00:18:27.570
the legislature would not consider a CWOF
480
00:18:27.570 --> 00:18:29.220
of the type of your clients
481
00:18:29.220 --> 00:18:31.230
to be an prior offense
482
00:18:31.230 --> 00:18:34.920
while at the same time your client could be sentenced
483
00:18:34.920 --> 00:18:36.210
on that offense
484
00:18:36.210 --> 00:18:40.050
and actually be sentenced on that offense
485
00:18:40.050 --> 00:18:41.343
without anything further?
486
00:18:42.390 --> 00:18:44.070
Right, I think once the,
487
00:18:44.070 --> 00:18:46.710
if a CWOF upon a violation of probation,
488
00:18:46.710 --> 00:18:48.090
if the CWOF was converted
489
00:18:48.090 --> 00:18:49.950
to a delinquency adjudication,
490
00:18:49.950 --> 00:18:52.380
I think it may be a logical corollary
491
00:18:52.380 --> 00:18:54.663
from the Wallace decision that would count.
492
00:18:55.620 --> 00:18:57.210
I also think there's some tension
493
00:18:57.210 --> 00:18:58.620
because there's no additional proof
494
00:18:58.620 --> 00:18:59.610
beyond a reasonable doubt
495
00:18:59.610 --> 00:19:01.940
to get from the CWOF to the adjudication
496
00:19:01.940 --> 00:19:03.903
as Your Honor has stated.
497
00:19:04.800 --> 00:19:06.090
But again, going forward,
498
00:19:06.090 --> 00:19:08.460
you're not gonna have that go,
499
00:19:08.460 --> 00:19:10.230
if it's your first offense
500
00:19:10.230 --> 00:19:11.730
and it's a minor misdemeanor
501
00:19:11.730 --> 00:19:14.250
as opposed to a major misdemeanor, right.
502
00:19:14.250 --> 00:19:16.410
It's gonna be dismissed,
503
00:19:16.410 --> 00:19:19.050
we aren't gonna have CWOF on those, right.
504
00:19:19.050 --> 00:19:21.150
Mm-hmm.
They're supposed to go away.
505
00:19:21.150 --> 00:19:25.653
So we're really only dealing with major misdemeanors, right?
506
00:19:27.444 --> 00:19:31.890
And historic pre Wallace W. type of findings, right?
507
00:19:31.890 --> 00:19:35.130
Right, this would be if a major misdemeanor or a felony
508
00:19:35.130 --> 00:19:36.626
were to be continued without a finding.
509
00:19:36.626 --> 00:19:37.740
Can I ask a question?
510
00:19:37.740 --> 00:19:39.780
Is an assault and bat, I should know this, I don't.
511
00:19:39.780 --> 00:19:42.150
Is an assault and battery, the CWOF has it,
512
00:19:42.150 --> 00:19:44.040
was that a major or minor misdemeanor?
513
00:19:44.040 --> 00:19:46.200
Major Misdemeanor.
Okay. So that's fine.
514
00:19:46.200 --> 00:19:47.033
Okay, I gotcha.
Yeah.
515
00:19:47.033 --> 00:19:47.866
Okay.
516
00:19:49.890 --> 00:19:51.660
Okay, if there are no further questions,
517
00:19:51.660 --> 00:19:52.493
I'd rest in my briefs.
518
00:19:52.493 --> 00:19:53.610
Thank you.
Thank you.
519
00:19:55.740 --> 00:19:57.183
Okay, Attorney Moriarty.
520
00:19:58.650 --> 00:19:59.910
Good morning.
521
00:19:59.910 --> 00:20:01.200
Your Honors may please the court,
522
00:20:01.200 --> 00:20:03.330
Eileen Connors Moriarty
523
00:20:03.330 --> 00:20:04.950
for the Commonwealth Assistant District Attorney
524
00:20:04.950 --> 00:20:06.600
from the Cape and Islands District Attorney's office
525
00:20:06.600 --> 00:20:07.890
in charge of the juvenile court
526
00:20:07.890 --> 00:20:10.200
and joined a council table by Elizabeth Sweeney,
527
00:20:10.200 --> 00:20:11.520
Chief of Appeals for the Cape and Islands
528
00:20:11.520 --> 00:20:13.020
District Attorney's office.
529
00:20:13.020 --> 00:20:14.130
In addressing the issues here,
530
00:20:14.130 --> 00:20:16.440
I wanna direct you back to the guiding principle,
531
00:20:16.440 --> 00:20:20.280
the law that governs the juvenile court 119 Section 53
532
00:20:20.280 --> 00:20:22.080
that talks about the care and discipline of children
533
00:20:22.080 --> 00:20:23.910
before the court should approximate
534
00:20:23.910 --> 00:20:26.100
what they would receive from their own parents
535
00:20:26.100 --> 00:20:28.383
as far as practical and not as criminals,
536
00:20:29.250 --> 00:20:31.170
but as children in need of aid,
537
00:20:31.170 --> 00:20:32.640
encouragement and guidance.
538
00:20:32.640 --> 00:20:35.280
The criminal justice reform in 2018 came out
539
00:20:35.280 --> 00:20:37.593
and said that children get a first chance.
540
00:20:38.490 --> 00:20:39.510
The cases that have come
541
00:20:39.510 --> 00:20:40.890
from the court Wallace and Nick N.,
542
00:20:40.890 --> 00:20:42.600
also talk about the importance of the fact
543
00:20:42.600 --> 00:20:44.910
that repeat minor misdemeanor offenses
544
00:20:44.910 --> 00:20:46.740
are intended to be prosecuted
545
00:20:46.740 --> 00:20:48.540
for both the protection of the public
546
00:20:48.540 --> 00:20:50.460
and for rehabilitation of the juvenile.
547
00:20:50.460 --> 00:20:51.570
And also that it's important
548
00:20:51.570 --> 00:20:52.800
that such proceedings occur
549
00:20:52.800 --> 00:20:55.080
in a timely and efficient manner.
550
00:20:55.080 --> 00:20:57.690
The question that comes here today
551
00:20:57.690 --> 00:21:00.570
is whether or not, a CWOF counts.
552
00:21:00.570 --> 00:21:02.730
And I would suggest to you that,
553
00:21:02.730 --> 00:21:04.620
if that the Commonwealth agrees
554
00:21:04.620 --> 00:21:07.410
with the central purpose of that legislation
555
00:21:07.410 --> 00:21:08.280
and court decisions,
556
00:21:08.280 --> 00:21:10.200
that it's to preserve the juvenile's right
557
00:21:10.200 --> 00:21:11.730
to a second chance.
558
00:21:11.730 --> 00:21:13.530
And for those reasons,
559
00:21:13.530 --> 00:21:15.150
suggesting that a CWOF doesn't count,
560
00:21:15.150 --> 00:21:16.440
does in fact, the opposite.
561
00:21:16.440 --> 00:21:18.870
It's important that we have progressive discipline,
562
00:21:18.870 --> 00:21:21.150
in regards to dealing with our children.
563
00:21:21.150 --> 00:21:24.570
Making CWOF not count would go against the spirit of that
564
00:21:24.570 --> 00:21:26.070
and would make them harder to get,
565
00:21:26.070 --> 00:21:27.420
make them more akin to something like,
566
00:21:27.420 --> 00:21:29.130
pretrial probation.
567
00:21:29.130 --> 00:21:30.180
CWOFs are good for kids.
568
00:21:30.180 --> 00:21:32.550
They understand, they understand incentives,
569
00:21:32.550 --> 00:21:33.750
they understand that if you go ahead
570
00:21:33.750 --> 00:21:35.670
and do what was asked of you,
571
00:21:35.670 --> 00:21:36.930
that could be dismissed.
572
00:21:36.930 --> 00:21:39.030
That's the difference for a juvenile between-
573
00:21:39.030 --> 00:21:40.030
But at least here,
574
00:21:42.030 --> 00:21:44.580
the issue isn't necessarily whether CWOFs count.
575
00:21:44.580 --> 00:21:46.590
It's when you get the CWOF.
576
00:21:46.590 --> 00:21:49.893
And so the discrete issue here is,
577
00:21:51.300 --> 00:21:54.960
I guess my question listening to your sister's argument is,
578
00:21:54.960 --> 00:21:59.010
is there nothing to be made of all of the rights
579
00:21:59.010 --> 00:22:01.710
that the juvenile waives
580
00:22:01.710 --> 00:22:04.950
during a predispositional CWOF
581
00:22:04.950 --> 00:22:07.020
versus a postdispositional CWOF?
582
00:22:07.020 --> 00:22:10.890
Because your sister seems to suggest that it's of no import,
583
00:22:10.890 --> 00:22:14.340
that he waives his right to counsel about to trial.
584
00:22:14.340 --> 00:22:17.340
He waives his right to present evidence in his own behalf.
585
00:22:17.340 --> 00:22:19.680
The Commonwealth gives a recitation of the facts
586
00:22:19.680 --> 00:22:21.120
they would've proved at trial.
587
00:22:21.120 --> 00:22:22.557
He admits to that.
588
00:22:22.557 --> 00:22:24.210
And this, in this case, I believe the,
589
00:22:24.210 --> 00:22:25.597
the judge asked him specifically,
590
00:22:25.597 --> 00:22:27.330
"Do you agree that that happened?"
591
00:22:27.330 --> 00:22:28.677
And he says, "Yes."
592
00:22:28.677 --> 00:22:30.180
And it seems to me
593
00:22:30.180 --> 00:22:32.190
that if the Wallace W. standard of
594
00:22:32.190 --> 00:22:34.440
beyond a reasonable doubt,
595
00:22:34.440 --> 00:22:36.840
that this is it,
596
00:22:36.840 --> 00:22:39.360
that he's saying, you could find me guilty
597
00:22:39.360 --> 00:22:40.620
beyond a reasonable doubt,
598
00:22:40.620 --> 00:22:43.110
but the court doesn't enter guilty
599
00:22:43.110 --> 00:22:44.670
or a delinquency file,
600
00:22:44.670 --> 00:22:47.100
the adjudication against him.
601
00:22:47.100 --> 00:22:48.090
I agree, I would suggest
602
00:22:48.090 --> 00:22:51.750
that it's Mass General Law 278 Section 18 that says the,
603
00:22:51.750 --> 00:22:52.800
that the plea for CWOF
604
00:22:52.800 --> 00:22:54.210
and a delinquency are guilty
605
00:22:54.210 --> 00:22:55.200
is essentially the same.
606
00:22:55.200 --> 00:22:56.520
And that by entering into that plea,
607
00:22:56.520 --> 00:22:58.530
he had the functional equivalent of a Wallace hearing.
608
00:22:58.530 --> 00:22:59.793
And that's what governs,
609
00:23:01.080 --> 00:23:03.360
and that's what's in the best interest of the children
610
00:23:03.360 --> 00:23:05.760
for understanding the process and not retrying
611
00:23:05.760 --> 00:23:08.633
and regoing back through things they've already admitted to.
612
00:23:15.352 --> 00:23:16.470
What do we do with all our jurisprudence
613
00:23:16.470 --> 00:23:19.920
that distinguishes these admission to sufficient facts
614
00:23:19.920 --> 00:23:21.390
and says they're not convictions?
615
00:23:21.390 --> 00:23:22.653
Does that matter?
616
00:23:23.970 --> 00:23:25.280
What do we do with all those cases?
617
00:23:25.280 --> 00:23:26.520
It matters, but it's different.
618
00:23:26.520 --> 00:23:28.770
The juvenile court is a creature of the legislature
619
00:23:28.770 --> 00:23:30.900
as the juvenile's brief points out.
620
00:23:30.900 --> 00:23:31.890
And it's different.
621
00:23:31.890 --> 00:23:33.510
It's different than everything else.
622
00:23:33.510 --> 00:23:35.070
So it's not that we're saying that doesn't count.
623
00:23:35.070 --> 00:23:36.450
We're saying for these circumstances
624
00:23:36.450 --> 00:23:37.800
in this particular situation,
625
00:23:37.800 --> 00:23:40.694
this is the best way to do it.
626
00:23:40.694 --> 00:23:43.200
Only again, only is, it should only apply
627
00:23:43.200 --> 00:23:45.480
to a major misdemeanor.
628
00:23:45.480 --> 00:23:47.070
It shouldn't be a minor misdemeanor,
629
00:23:47.070 --> 00:23:48.630
'cause again, the minor misdemeanor should be
630
00:23:48.630 --> 00:23:50.107
dismissed without a CWOF, right?
631
00:23:50.107 --> 00:23:51.690
[Attorney Moriarty] Well, but that's only the first,
632
00:23:51.690 --> 00:23:54.960
The first minor misdemeanor should be dismissed
633
00:23:54.960 --> 00:23:55.793
without a CWOF.
634
00:23:55.793 --> 00:23:56.626
We don't want to use this
635
00:23:56.626 --> 00:23:59.040
as a work around the statute, right?
636
00:23:59.040 --> 00:23:59.873
Correct.
Right.
637
00:23:59.873 --> 00:24:01.022
I would agree.
638
00:24:01.022 --> 00:24:02.880
It's the first minor misdemeanor is gonna be dismissed
639
00:24:02.880 --> 00:24:03.990
on its own, on its face.
640
00:24:03.990 --> 00:24:04.823
It's going back.
641
00:24:04.823 --> 00:24:05.970
But I do think minor misdemeanors,
642
00:24:05.970 --> 00:24:08.430
CWOF and minor misdemeanors should count
643
00:24:08.430 --> 00:24:10.470
because it's going back to the language in Wallace
644
00:24:10.470 --> 00:24:13.260
and Nick N. that talks about repeat misdemeanor offenses.
645
00:24:13.260 --> 00:24:15.660
This whole, you know, second chance that was created
646
00:24:15.660 --> 00:24:17.250
by the legislature is wonderful,
647
00:24:17.250 --> 00:24:19.050
but what they did was they inserted it
648
00:24:19.050 --> 00:24:21.750
into the middle of the system from the way I see it,
649
00:24:21.750 --> 00:24:23.310
because when the police,
650
00:24:23.310 --> 00:24:24.240
if there's an incident
651
00:24:24.240 --> 00:24:25.200
and the police get involved,
652
00:24:25.200 --> 00:24:26.880
the police can charge or not charge,
653
00:24:26.880 --> 00:24:27.960
they can file a complaint.
654
00:24:27.960 --> 00:24:29.190
The clerk can issue that complaint
655
00:24:29.190 --> 00:24:30.690
or not issue that complaint.
656
00:24:30.690 --> 00:24:32.490
Then the district in some counties,
657
00:24:32.490 --> 00:24:34.050
district attorney's offices have diversion.
658
00:24:34.050 --> 00:24:35.340
We have that on the Cape.
659
00:24:35.340 --> 00:24:36.660
We can go ahead and divert them.
660
00:24:36.660 --> 00:24:39.060
If we choose not to divert them, the judge can,
661
00:24:39.060 --> 00:24:40.140
through the criminal justice reform,
662
00:24:40.140 --> 00:24:41.970
now we have pretrial judicial diversion
663
00:24:41.970 --> 00:24:43.320
that is prior to arraignment.
664
00:24:43.320 --> 00:24:44.790
Then when a case comes forward,
665
00:24:44.790 --> 00:24:46.080
then we can give it pretrial provision.
666
00:24:46.080 --> 00:24:48.390
Right, I understand the generalities,
667
00:24:48.390 --> 00:24:50.310
but it's just Justice Wolohojian's question
668
00:24:50.310 --> 00:24:52.080
that sort of intrigues me here though,
669
00:24:52.080 --> 00:24:55.020
which is, okay, so the first,
670
00:24:55.020 --> 00:24:57.990
we all agree the first minor misdemeanor
671
00:24:57.990 --> 00:24:58.890
should be dismissed.
672
00:24:58.890 --> 00:25:00.630
There's no jurisdiction.
673
00:25:00.630 --> 00:25:03.513
Then we've got the second minor misdemeanor.
674
00:25:04.530 --> 00:25:05.820
Do you have to have,
675
00:25:05.820 --> 00:25:08.580
that's there's an admission to sufficient facts
676
00:25:08.580 --> 00:25:10.650
on the second minor misdemeanor, right?
677
00:25:10.650 --> 00:25:12.360
Mm-hmm.
Do we need to have
678
00:25:12.360 --> 00:25:17.360
a Wallace W. hearing on the first one to do that one?
679
00:25:18.630 --> 00:25:19.463
How does that work?
680
00:25:19.463 --> 00:25:21.691
[Attorney Moriarty] I would suggest we should not,
681
00:25:21.691 --> 00:25:22.524
that it's a, it's-
682
00:25:22.524 --> 00:25:26.110
That's a little inconsistent with what we've said about
683
00:25:27.120 --> 00:25:28.800
we need you to prove something
684
00:25:28.800 --> 00:25:32.670
before you can prosecute
685
00:25:32.670 --> 00:25:35.227
and record a minor misdemeanor.
686
00:25:35.227 --> 00:25:36.990
[Attorney Moriarty] Wouldn't that CWOF count?
687
00:25:36.990 --> 00:25:39.210
Wouldn't that be the proof if there was already
688
00:25:39.210 --> 00:25:40.424
No, you're, that's the second one.
689
00:25:40.424 --> 00:25:41.257
You see, you're,
690
00:25:41.257 --> 00:25:42.570
I'm trying
You're going back
691
00:25:42.570 --> 00:25:43.920
to the first one.
692
00:25:43.920 --> 00:25:45.600
Given that we keep getting these
693
00:25:45.600 --> 00:25:47.130
and we're gonna get the next one.
694
00:25:47.130 --> 00:25:49.350
I'm trying to anticipate it a little bit here
695
00:25:49.350 --> 00:25:51.570
and make sure I understand what you're arguing.
696
00:25:51.570 --> 00:25:54.220
Mm-hmm.
So, again, the second
697
00:25:55.710 --> 00:25:58.500
he's, this is, let's take a hypothetical,
698
00:25:58.500 --> 00:26:00.330
Okay,
The first time
699
00:26:00.330 --> 00:26:02.400
he does this minor misdemeanor,
700
00:26:02.400 --> 00:26:04.140
everyone agrees it should be dismissed.
701
00:26:04.140 --> 00:26:06.090
Yes.
You now have said
702
00:26:06.090 --> 00:26:09.510
you can have a second minor misdemeanor
703
00:26:09.510 --> 00:26:12.270
and admit to sufficient facts
704
00:26:12.270 --> 00:26:15.840
without having a Wallace W. hearing on the first one.
705
00:26:15.840 --> 00:26:18.217
That's what I thought you just said, or no, maybe not.
706
00:26:18.217 --> 00:26:19.190
[Attorney Moriarty] No, but that the CWOF
707
00:26:19.190 --> 00:26:22.233
on that second one would count, going forward.
708
00:26:23.610 --> 00:26:24.960
Okay, go ahead.
That makes sense.
709
00:26:24.960 --> 00:26:28.470
I think so perhaps maybe this will help
710
00:26:28.470 --> 00:26:30.540
because I see Justice Kafker's concern
711
00:26:30.540 --> 00:26:32.940
and Justice Wolohojian's.
712
00:26:32.940 --> 00:26:35.220
So let's move this case forward.
713
00:26:35.220 --> 00:26:38.520
The initial CWOF that we're talking about, the A and B.
714
00:26:38.520 --> 00:26:39.630
Yes.
Let's put it
715
00:26:39.630 --> 00:26:41.790
not a historic Wallace W.,
716
00:26:41.790 --> 00:26:44.310
let's put it post Wallace W.,
717
00:26:44.310 --> 00:26:46.890
so when that first A and B came in,
718
00:26:46.890 --> 00:26:49.500
it just got dismissed, okay?
719
00:26:49.500 --> 00:26:52.110
That minor misdemeanor gets dismissed.
720
00:26:52.110 --> 00:26:55.230
Now you've got this two count delinquency complaint
721
00:26:55.230 --> 00:26:57.330
with the minor and the major misdemeanor.
722
00:26:57.330 --> 00:26:58.950
Nothing's been done here.
723
00:26:58.950 --> 00:27:00.450
In our case, it's different.
724
00:27:00.450 --> 00:27:02.040
There's been a CWOF on that,
725
00:27:02.040 --> 00:27:03.570
on this A and B,
726
00:27:03.570 --> 00:27:07.350
assume that this case just got jurisdictionally put out
727
00:27:07.350 --> 00:27:11.340
because Wallace W. says it's his first minor misdemeanor.
728
00:27:11.340 --> 00:27:14.010
So now on this combined complaint
729
00:27:14.010 --> 00:27:15.780
where you've got the minor and the major,
730
00:27:15.780 --> 00:27:18.600
there's never been a prior adjudication.
731
00:27:18.600 --> 00:27:22.470
So can there be an adjudication on that minor misdemeanor
732
00:27:22.470 --> 00:27:25.410
if that A and B hadn't been adjudicated
733
00:27:25.410 --> 00:27:26.763
in the Wallace W. hearing?
734
00:27:29.160 --> 00:27:32.137
Or does the court have to stop and say,
735
00:27:32.137 --> 00:27:35.190
"Before anything happens on this minor misdemeanor,
736
00:27:35.190 --> 00:27:36.720
Commonwealth, you've gotta go back
737
00:27:36.720 --> 00:27:38.130
and have a hearing on
738
00:27:38.130 --> 00:27:41.550
that dismissed out prior minor misdemeanor."
739
00:27:41.550 --> 00:27:42.450
But in that situation,
740
00:27:42.450 --> 00:27:44.490
the first assault and battery isn't a minor misdemeanor,
741
00:27:44.490 --> 00:27:46.097
it's a ma-
Oh, well, just assume that.
742
00:27:46.097 --> 00:27:47.010
So if it was a, so it was trespass.
743
00:27:47.010 --> 00:27:48.000
Oh yeah, yeah,
744
00:27:48.000 --> 00:27:50.170
assume that it was a minor misdemeanor.
745
00:27:50.170 --> 00:27:52.200
Okay, so the first one is a minor misdemeanor.
746
00:27:52.200 --> 00:27:53.127
So say it's not assault and battery
747
00:27:53.127 --> 00:27:54.800
and with him, it's trespass.
748
00:27:54.800 --> 00:27:55.633
Yeah.
And then he comes
749
00:27:55.633 --> 00:27:57.000
to Barnstable Court,
750
00:27:57.000 --> 00:27:58.200
it has the assault and battery
751
00:27:58.200 --> 00:27:59.800
and disorderly conduct.
Yeah.
752
00:28:00.720 --> 00:28:03.429
I would still think the CWOF on that.
753
00:28:03.429 --> 00:28:04.980
It hasn't been CWOF.
754
00:28:04.980 --> 00:28:05.813
Oh, it's still open.
755
00:28:05.813 --> 00:28:06.750
No, then he's entitled
No.
756
00:28:06.750 --> 00:28:08.370
to a Wallace.
It was dismissed.
757
00:28:08.370 --> 00:28:10.053
The trespass was dismissed.
758
00:28:11.044 --> 00:28:11.880
[Attorney Moriarty] Trespass was dismissed.
759
00:28:11.880 --> 00:28:13.740
So then yes, he's entitled to a Wallace hearing
760
00:28:13.740 --> 00:28:14.940
for the disorderly conduct.
761
00:28:14.940 --> 00:28:17.010
Okay, so what you're saying is,
762
00:28:17.010 --> 00:28:18.510
just so I'm clear,
763
00:28:18.510 --> 00:28:20.400
if we didn't have a situation where
764
00:28:20.400 --> 00:28:24.300
that first minor misdemeanor was adjudicated in some way
765
00:28:24.300 --> 00:28:26.850
and it was dismissed out under Wallace W.
766
00:28:26.850 --> 00:28:28.650
subsequently, like we have here,
767
00:28:28.650 --> 00:28:30.330
if you've got the minor misdemeanor
768
00:28:30.330 --> 00:28:32.850
and a major that he would be entitled
769
00:28:32.850 --> 00:28:34.800
before that it can be an adjudication
770
00:28:34.800 --> 00:28:36.660
on the minor misdemeanor
771
00:28:36.660 --> 00:28:38.550
that the Commonwealth would have to go back
772
00:28:38.550 --> 00:28:42.690
and prove that other one that's only in Mass courts
773
00:28:42.690 --> 00:28:43.947
that only the Commonwealth knows about
774
00:28:43.947 --> 00:28:45.360
and the clerks knows about
775
00:28:45.360 --> 00:28:46.260
and prove that one
776
00:28:46.260 --> 00:28:49.110
before they can be an adjudication on the subsequent one.
777
00:28:50.364 --> 00:28:51.750
I think there's that possibility
778
00:28:51.750 --> 00:28:54.150
or there's a possibility, which I think with the splitting
779
00:28:54.150 --> 00:28:57.330
of the minor and major misdemeanors in Manolo
780
00:28:57.330 --> 00:28:58.950
that it tracks behind.
781
00:28:58.950 --> 00:29:01.830
So that on that day at the arraignment in June,
782
00:29:01.830 --> 00:29:03.090
what we should have done was arraign him
783
00:29:03.090 --> 00:29:04.530
on the disorderly conduct
784
00:29:04.530 --> 00:29:06.450
Mm-hmm.
and then the, excuse me,
785
00:29:06.450 --> 00:29:07.860
arraign him on the assault and battery.
786
00:29:07.860 --> 00:29:09.480
That disorderly conduct should have tracked,
787
00:29:09.480 --> 00:29:11.700
we would've resolved that assault and battery
788
00:29:11.700 --> 00:29:14.820
and then would be left to resolve that disorderly conduct.
789
00:29:14.820 --> 00:29:16.710
That's also the procedure that's at play.
790
00:29:16.710 --> 00:29:19.608
It's not great, but it's a little bit more efficient.
791
00:29:19.608 --> 00:29:20.441
(Justice Georges chuckling)
792
00:29:20.441 --> 00:29:21.750
Can I ask you a related question
793
00:29:21.750 --> 00:29:24.450
to Justice Wolohojian, one of the options
794
00:29:24.450 --> 00:29:26.850
that she gave your sister, my view of this,
795
00:29:26.850 --> 00:29:31.850
and perhaps I'm wrong, is that we have the audio
796
00:29:31.940 --> 00:29:36.600
of the proceeding on the A and B CWOF.
797
00:29:36.600 --> 00:29:38.010
You're going to get us a transcript,
798
00:29:38.010 --> 00:29:40.140
you're going to get us the tender of plea.
799
00:29:40.140 --> 00:29:43.020
I would assume in this circumstance
800
00:29:43.020 --> 00:29:44.820
a remand wouldn't be necessary
801
00:29:44.820 --> 00:29:46.140
because we'd have everything
802
00:29:46.140 --> 00:29:49.320
that would be in front of the juvenile court
803
00:29:49.320 --> 00:29:50.850
in terms of whether or not
804
00:29:50.850 --> 00:29:54.390
that prior A and B was proved beyond a reasonable doubt.
805
00:29:54.390 --> 00:29:55.223
Correct.
806
00:29:55.223 --> 00:29:56.340
My understanding is we did,
807
00:29:56.340 --> 00:29:57.780
the Commonwealth did seek those things
808
00:29:57.780 --> 00:29:59.310
and that the tender was not available
809
00:29:59.310 --> 00:30:00.420
and we were only given access
810
00:30:00.420 --> 00:30:02.820
to the FTR within the past week.
811
00:30:02.820 --> 00:30:03.900
Okay.
But yes,
812
00:30:03.900 --> 00:30:05.040
that you would have all those things
813
00:30:05.040 --> 00:30:06.120
and be able to look at it.
814
00:30:06.120 --> 00:30:08.170
I would think that the tender could be,
815
00:30:09.261 --> 00:30:10.440
I would think that would be available
816
00:30:10.440 --> 00:30:12.127
and that would be nice for the court to have that.
817
00:30:12.127 --> 00:30:13.403
[Attorney Moriarty] We will.
818
00:30:14.833 --> 00:30:17.910
[Justice Wolohojian] Can you address the sufficiency?
819
00:30:17.910 --> 00:30:20.130
The sufficiency?
Of the evidence.
820
00:30:20.130 --> 00:30:22.830
In regards to the original case?
821
00:30:22.830 --> 00:30:25.200
The case that's, you know, up here,
822
00:30:25.200 --> 00:30:28.290
the evidence on the disorderly conduct charge?
823
00:30:28.290 --> 00:30:31.020
Yes, the evidence in regards to the disorderly conduct,
824
00:30:31.020 --> 00:30:32.040
I think kind of loops back
825
00:30:32.040 --> 00:30:32.990
into whether or not
826
00:30:34.140 --> 00:30:35.580
there was a self-defense instruction.
827
00:30:35.580 --> 00:30:38.130
The judge instructs herself read those things.
828
00:30:38.130 --> 00:30:39.840
I would suggest self-defense fails.
829
00:30:39.840 --> 00:30:42.360
So there, you know, there was no legitimate purpose
830
00:30:42.360 --> 00:30:44.100
for his behavior inside the courthouse.
831
00:30:44.100 --> 00:30:47.100
And it was certainly disorderly, certainly disrupted.
832
00:30:47.100 --> 00:30:48.060
As you see in the video,
833
00:30:48.060 --> 00:30:49.740
which I'm sure you have seen,
834
00:30:49.740 --> 00:30:52.560
you know, that the juvenile comes up the stairs
835
00:30:52.560 --> 00:30:54.183
essentially chasing the adult.
836
00:30:55.200 --> 00:30:56.730
That's disorderly in and of itself
837
00:30:56.730 --> 00:30:57.563
chasing the adult
838
00:30:57.563 --> 00:31:00.600
and then the physical altercation
839
00:31:00.600 --> 00:31:03.420
and then the melee that ensues right in the beginning
840
00:31:03.420 --> 00:31:05.400
that if there's no self-defense,
841
00:31:05.400 --> 00:31:06.870
if that's not a valid claim, then there,
842
00:31:06.870 --> 00:31:09.963
then he is delinquent, disorderly conduct.
843
00:31:11.310 --> 00:31:16.310
Does the sufficiency turn on the judge's finding
844
00:31:16.380 --> 00:31:20.640
of the defendant's mindset when he was coming up the stairs,
845
00:31:20.640 --> 00:31:23.820
the judge made a finding that he was essentially coming
846
00:31:23.820 --> 00:31:25.890
to looking for a fight?
847
00:31:25.890 --> 00:31:27.337
Yes.
It does turn on that?
848
00:31:27.337 --> 00:31:29.220
[Attorney Moriarty] I think it's, yes,
849
00:31:29.220 --> 00:31:30.053
it turns out at that way and-
850
00:31:30.053 --> 00:31:32.850
And what was the evidence to support that finding?
851
00:31:32.850 --> 00:31:34.590
When you look at the whole video,
852
00:31:34.590 --> 00:31:36.720
you see first the adult coming up the stairs.
853
00:31:36.720 --> 00:31:37.740
You see him come up the stairs,
854
00:31:37.740 --> 00:31:39.240
you see him look down.
855
00:31:39.240 --> 00:31:41.190
It appears that there's some conversation
856
00:31:41.190 --> 00:31:42.390
and it's two seconds later
857
00:31:42.390 --> 00:31:44.490
that the juvenile comes right up the stairs
858
00:31:44.490 --> 00:31:45.990
and the, you can see in the video,
859
00:31:45.990 --> 00:31:47.280
it's a short set of staircases.
860
00:31:47.280 --> 00:31:49.020
I think it's about eight or 10 steps.
861
00:31:49.020 --> 00:31:50.970
There's one that goes down and then goes down here.
862
00:31:50.970 --> 00:31:52.230
There's a hallway here.
863
00:31:52.230 --> 00:31:53.490
You can see that all in the video.
864
00:31:53.490 --> 00:31:54.750
This was a continuance.
865
00:31:54.750 --> 00:31:57.330
This wasn't the adult laying in weight upstairs,
866
00:31:57.330 --> 00:31:59.460
which when you read the facts
867
00:31:59.460 --> 00:32:00.900
that the juveniles put out suggests
868
00:32:00.900 --> 00:32:02.280
that the adult was laying in weight.
869
00:32:02.280 --> 00:32:03.150
He came up the stairs,
870
00:32:03.150 --> 00:32:04.530
was surprised, and that's what happened.
871
00:32:04.530 --> 00:32:05.640
That's not it at all.
872
00:32:05.640 --> 00:32:06.960
The video when you watch it
873
00:32:06.960 --> 00:32:08.160
shows that he comes up the stairs.
874
00:32:08.160 --> 00:32:09.420
This is a continued progression
875
00:32:09.420 --> 00:32:11.070
from what happened downstairs.
876
00:32:11.070 --> 00:32:14.310
The juveniles running in to an issue
877
00:32:14.310 --> 00:32:15.480
and then claiming self-defense,
878
00:32:15.480 --> 00:32:17.490
when in fact it would perhaps be Mr. Almida who,
879
00:32:17.490 --> 00:32:18.660
excuse me, the adult
880
00:32:18.660 --> 00:32:20.138
who would've had the better claim of self-defense.
881
00:32:20.138 --> 00:32:20.971
[Justice Wolohojian] Was there evidence
882
00:32:20.971 --> 00:32:23.400
that there had been an incident downstairs?
883
00:32:23.400 --> 00:32:25.470
I believe when-
This was a continuation?
884
00:32:25.470 --> 00:32:27.150
When you see the timing of the video
885
00:32:27.150 --> 00:32:29.310
and the timing of those two individuals coming up,
886
00:32:29.310 --> 00:32:30.630
I would suggest that that's where
887
00:32:30.630 --> 00:32:32.340
that suggestion comes from.
888
00:32:32.340 --> 00:32:36.690
I could see that an inference that they were,
889
00:32:36.690 --> 00:32:38.760
he was following him up.
890
00:32:38.760 --> 00:32:41.940
I couldn't really see how the video gave rise
891
00:32:41.940 --> 00:32:45.870
to a reasonable inference of what had happened downstairs.
892
00:32:45.870 --> 00:32:48.120
I would suggest it's the him leaning over the stairs,
893
00:32:48.120 --> 00:32:49.860
not just coming up the stairs, minding his business,
894
00:32:49.860 --> 00:32:51.510
but looking behind him, leaning over
895
00:32:51.510 --> 00:32:54.360
and looking down into that below
896
00:32:54.360 --> 00:32:56.460
and that the child comes up just behind him.
897
00:32:56.460 --> 00:32:58.203
I think it's about two seconds.
898
00:33:00.330 --> 00:33:01.770
And what do we do with the fact
899
00:33:01.770 --> 00:33:04.443
that the first person up the stairs,
900
00:33:05.640 --> 00:33:07.470
at least on the evidence that we've got,
901
00:33:07.470 --> 00:33:11.013
which is the video through the first punch,
902
00:33:12.570 --> 00:33:14.970
It's because he's being pursued by the other child
903
00:33:14.970 --> 00:33:16.200
that he's coming right up behind him.
904
00:33:16.200 --> 00:33:17.460
He's taking the stairs two at a time,
905
00:33:17.460 --> 00:33:18.810
he's running up the stairs.
906
00:33:19.740 --> 00:33:23.250
And that's how that unfolded that he came, right,
907
00:33:23.250 --> 00:33:25.050
he was confronting,
908
00:33:25.050 --> 00:33:26.670
the child was confronting the adult
909
00:33:26.670 --> 00:33:27.920
at the top of the stairs.
910
00:33:29.438 --> 00:33:32.250
But the video is very clear that the adult at the top
911
00:33:32.250 --> 00:33:34.470
of the stairs is behind the doorway.
912
00:33:34.470 --> 00:33:37.380
That you can see the juvenile coming up
913
00:33:37.380 --> 00:33:38.550
quickly up the stairs.
914
00:33:38.550 --> 00:33:39.990
The adult is behind the doorway.
915
00:33:39.990 --> 00:33:41.700
He puts up his sleeves like this,
916
00:33:41.700 --> 00:33:42.840
he pulls up his pants
917
00:33:42.840 --> 00:33:43.703
and he put, goes like this.
918
00:33:43.703 --> 00:33:45.153
Mm-hmm.
I mean, I don't,
919
00:33:46.170 --> 00:33:48.750
and then as soon as the juvenile appears,
920
00:33:48.750 --> 00:33:49.710
you see the fist.
921
00:33:49.710 --> 00:33:51.690
I mean, it's not, are you arguing
922
00:33:51.690 --> 00:33:54.750
that the juvenile is the first aggressor in this situation?
923
00:33:54.750 --> 00:33:56.400
I would suggest that from the point of view
924
00:33:56.400 --> 00:33:58.050
of where that is, that in fact you,
925
00:33:58.050 --> 00:33:59.430
he can see him when he's coming up the stairs.
926
00:33:59.430 --> 00:34:01.170
He's following, he knows he's right there.
927
00:34:01.170 --> 00:34:03.020
I thought your argument was just a,
928
00:34:04.200 --> 00:34:07.683
that he did not retreat where he could have.
929
00:34:08.850 --> 00:34:09.930
The child, he did not.
930
00:34:09.930 --> 00:34:12.180
But he also didn't need to run into the situation.
931
00:34:12.180 --> 00:34:13.170
He first following,
932
00:34:13.170 --> 00:34:16.380
there was an issue as they went up the stairs.
933
00:34:16.380 --> 00:34:18.297
So I don't, so it's both, I think.
934
00:34:18.297 --> 00:34:21.090
But I understood that was a retreat argument
935
00:34:21.090 --> 00:34:23.880
that he should have not have come up the stairs at all.
936
00:34:23.880 --> 00:34:25.920
Not an argument that he was the first aggressor
937
00:34:25.920 --> 00:34:26.973
in the situation.
938
00:34:27.840 --> 00:34:29.880
I think it depends on whether or not,
939
00:34:29.880 --> 00:34:31.110
when you look at the evidence
940
00:34:31.110 --> 00:34:32.040
that the court was presented,
941
00:34:32.040 --> 00:34:34.260
whether you think self-defense was an instruction
942
00:34:34.260 --> 00:34:35.250
that was warranted at that point.
943
00:34:35.250 --> 00:34:38.520
Well, do you need him to be the first aggressor,
944
00:34:38.520 --> 00:34:41.610
the defendant, in order to win on self-defense?
945
00:34:41.610 --> 00:34:42.623
No.
Okay.
946
00:34:47.100 --> 00:34:48.494
If nothing else, the Commonwealth rest on its brief.
947
00:34:48.494 --> 00:34:49.383
Thank you.