-: SJC 13645, Commonwealth versus Lewis c. Cabrera.
-: Okay, Attorney LeClair.
-: Good morning, Chief Justice Budd,
and may it please the court,
Jessica LeClair for Lewis Cabrera.
This case is about finality.
At a certain point, a judicial officer's decision
must be deemed final and binding on the parties,
especially where that decision has the effect
of terminating a prosecution.
In this case, where the Commonwealth
did not seek judicial redetermination
of that first magistrate's decision,
did not seek a 2113 petition,
did not resubmit that complaint with new evidence,
or ask the first magistrate
to reconsider his interpretation of the statute,
and offered no explanation for the close to three year delay
before refiling a second application for complaint,
we are long past the point of finality,
and it is our position that that first magistrate's decision
is now final. (multiple people respond)
-: Do you have case law for that? What do you have to offer?
-: This is a unique situation,
but I would point the court to Commonwealth v Williams,
and that's 431 Mass 71, it's cited in my brief
where the Commonwealth failed to take steps
to seek judicial review of a decision,
denying a motion to suppress, and instead,
dismiss the case and then refile for an indictment
that that decision was final
because the Commonwealth had an opportunity
to review the decision and chose not to.
-: Counsel, assume for the sake of argument,
that they could have taken an appeal to a judge.
If you're within the statute of limitations,
you don't suggest that if a grand jury no bills a case
that the Commonwealth can't represent
to the grand jury, do you?
-: No, Your Honor- -: So how would this fit
within that if there's no probable cause
and a magistrate looks at it this time around,
and I understand that there was an intermediate step
that they could take.
Why can't they just go back in with another application
if it's within the statute of limitations?
-: The reason is, first of all,
the statute of limitations serves a different interest.
-: It does, but I'm just saying,
if you're not outside of the statute of limitations,
why can't they just go back in like they did?
If you can go back in and re-indict
or re-present to the grand jury,
why should this be any different than that?
-: The reason is that if you do that,
then you're endorsing what happened here,
which is rendering that first magistrate's decision
essentially optional.
And the collateral estoppel doctrine
serves the interests of reliance on adjudication.
The legislature says this is a judicial officer
who is vested with discretion and required
to make a initial determination of probable cause
that will either terminate the prosecution
or allow it to proceed.
And we want the parties to obey that decision and follow-
Judge: Could the DA have indicted the case?
-: We do not dispute that the Commonwealth
could have sought an indictment.
Judge: Okay then, how is it final?
-: The decision by the magistrate,
finding no probable cause, is final.
The Commonwealth could have indicted-
-: Okay, let's talk about the word final.
You agree that the magistrate
finds no probable cause, right?
And there's no appeal. You say it's final.
You also agree that the DA could have said, "Okay,
we're gonna go to the grand jury,
and we're gonna indict for the exact same offense,
and the person would be hauled into superior court
and arraigned.
Where's the finality?
-: The finality is because the Commonwealth didn't do that,
first of all, but second, they had an-
-: I'm asking you about the finality
of the magistrate's decision
where you concede that the case could continue
as a superior court case.
-: I would concede that it could have continued
within a reasonable time, whether-
Justice Gaziano: Being the statute of limitations.
-: But my client's interest in finality-
-: I'm not saying this wasn't harsh.
The question is whether it's precluded
by collateral estoppel.
Collateral estoppel requires finality,
and as I'm hearing your argument and you concede
that the case could have been indicted,
I'm not getting finality from this.
-: Well, the grand jury is an independent body,
it's not a judicial body, and so that grand jury,
the Commonwealth could have presented this to a grand jury.
Whether that grand jury would've indicted, we don't know,
but we have a magistrate,
a judicial officer who did make a decision.
We have a legal-
-: So the judicial officer's decision is not final
for purposes of the grand jury,
but it is final for purposes of refiling in that same court?
-: Yes. -: Where is that?
What's the legal authority for that proposition,
that finality would be determined
on whether you go back to the same clerk magistrate
or a new grand jury, separate path?
-: I think the finality comes in because-
-: No, what's the legal authority for your position
that a decision can be final in one context,
but not in another, where it's the same party, same issue?
-: I would point the court, again, to Commonwealth v Williams
where they said the decision was final
because the Commonwealth did not pursue judicial review
in the proper forum.
-: When you talk about a judicial determination
at the inception of no probable cause,
what about the old fashioned probable cause hearing?
Right, so back in the old days,
they used to have probable cause hearings.
Probable cause hearing, a district court judge says,
"No probable cause."
Does that preclude the Commonwealth
from going to the grand jury and seeking an indictment?
-: No, the Commonwealth,
I mean the part of the Commonwealth's interests
aren't really harmed by a ruling in my client's favor
but what we want to impress is reliance on adjudication.
We don't want the Commonwealth-
-: Well, I'm not saying they did a good job,
and I'm not saying it's not harsh.
The question is when it's barred by collateral estoppel.
-: And I think that the reason it's barred is because-
-: There's no attaboy to counsel over there.
They should have appealed.
-: Right, and if they don't appeal, then there's no reason
why they would need to go to a grand jury.
They can just keep presenting this
to a different magistrate.
We have a concern about forum shopping, in essence.
In other words, let's say that they did have
a show cause hearing, the magistrate denied probable cause-
-: The magistrate, in this case,
was legally wrong about an element, correct?
-: I would agree that the statute, I mean,
I raised the question of whether there was probable cause.
I think it's ambiguous and the rule of laity
may entitle my client to relief if this case were to proceed
to a direct appeal on that question.
But I think the Commonwealth
could have asked that magistrate
to reconsider their interpretation of the statute.
-: Sorry, excuse me.
Collateral estoppel only applies
where an issue was necessarily decided
in the prior proceeding.
So on the basis of the record before us,
what is your position as to what we know
was necessarily decided, and particularly,
what, if any, factual issue was necessarily decided?
-: The factual issue decided in our position
is that the magistrate looked at the facts
alleged by the Commonwealth,
which was my client was on his porch with a firearm,
and appeared to be under the influence.
And those factual circumstances
did not satisfy the elements of the 10-H statute
that he was charged with.
So that would be the factual application
of the legal standard to those facts,
and that was what was decided.
And once that magistrate made that decision, yes,
the Commonwealth could have...
Well let's, they could go to the grand jury,
but they could also appeal, and there's rules that say
they have to seek judicial review.
We do not want a system where-
-: May I ask you about that last statement?
So I don't know which rules you're referring to
that mandates further judicial review.
I see the complaint standard that you put in your addendum.
It didn't look like it was a mandatory requirement.
Am I correct? -: Yes. I misspoke.
-: And also, right,
and 2113 is not mandatory, right?
It's not mandatory to seek 2113 review.
And my question is, with respect to either of those,
is there a time limit for seeking redetermination by a judge
under the complaint standard rules?
-: I believe the complaint standards say,
or suggest, a reasonable time for seeking judicial-
-: [Justice Wolohojian] Do they have a deadline?
-: But there's no- -: Is there a deadline on 2113?
-: [Attorney LeClair] I'm not aware of a deadline on 2113.
-: Right, so if there's no deadline,
then what weight can we give to the fact
that they didn't seek, or they haven't yet sought,
review under either of those mechanisms?
I mean, in terms of determining whether
the clerk magistrate's determination was final.
-: So our position is that they have to seek review
within a reasonable amount of time
because the defendant has an interest
in the finality of the decision.
-: That's usually why we have a statute of limitations. No?
-: But the statute of limitations
serves a different interest.
The interest served by the statute of limitations
is we don't want somebody charged with a crime,
we don't want this delay before they initiate a prosecution.
But here, we have a prosecution was already initiated,
we have a judge or a judicial officer who said,
"We're done here, you can go home.
You are not charged with a crime."
My client has an interest in that decision, that to him,
he reasonably believed that magistrate was correct,
that the litigation had terminated.
The legislature, in 218, section 35 says,
"One year after a magistrate says there's no probable cause,
we are going to destroy the records
of that application for complaint."
And that's because it's to protect the accused
from having these public documents available
when there really hasn't been that legal standard satisfied.
And so that would suggest that after one year,
the defendant is entitled to rely on that judicial decision,
and if the Commonwealth doesn't take some action
within that period of time, then the defendant's interest
in the finality of that decision
has essentially vested or crystallized.
And this court speaks to that concept
in Commonwealth v. Selavka
where there was an illegal sentence,
and it's similar to the suggestion here
that maybe this magistrate-
Justice Gaziano: But Selavka,
they served the illegal sentence.
-: And the probation period started,
and it was after one year
that the Commonwealth wanted to impose GPS,
and what this court said is,
that finality interest has vested, and-
-: The finality in Selavka, in the cases that follow Selavka,
had to do with imposition of a sentence.
Much different than non-charges, right?
-: I understand it's different,
but the doctrine of collateral estoppel
does protect that same interest,
the defendant's interest in finality,
the defendant's interest in relying on-
-: Which assumes it's the final judgment. That's the problem.
It's a chicken and egg issue.
It assumes finality in your answer.
(several people speaking)
-: I apologize. -: No, I was gonna move along
to the due process issue, so-
-: There's one other issue with the collateral estoppel,
if I could before we move on.
So one of the things that we talk about with the finality,
but it's also what is final.
And when we're talking about collateral estoppel,
you're talking about an ultimate fact that was determined.
That isn't that, right?
A probable cause determination, how does that fit
when they're not making a determination
on the merits of the underlying complaint?
It's just probable cause.
-: Well, I think collateral estoppel
has historically been given broad application,
and so you could say the same of a motion to suppress.
A judge is deciding whether this legal standard
has been satisfied by applying that legal standard to facts.
And so the magistrate, at that first hearing,
is making what would be called
a mixed question of facts and law,
looking at the facts that are alleged in the police report,
assuming those facts are true,
and then asking whether they satisfy the elements.
So we do think there's a factual question there
that's being resolved.
And in fact, that decision is ultimately what decides
whether the prosecution will go forward or not.
So historically, there hasn't been these carve outs
to the doctrine of collateral estoppel
as to any particular proceeding.
It applies broadly.
It does have stringent requirements
to satisfy it and to win, but I do think it applies
to all of the criminal proceeding.
-: Counsel, what is the rationale, if you know,
for our jurisprudence that allows,
in the context of what Justice Gaziano was talking about,
the old probable cause hearings, allows the prosecution,
if it fails to meet probable cause at the district court
to then refile to convene a grand jury.
What's the rationale behind that?
-: Well, I think the rationale is that
if they're invested in the prosecution,
there's possibility of wanting to proceed.
The grand jury is a check on the prosecution,
but the Commonwealth has the opportunity to error correct
the district court's denial of probable cause,
but they also have the discretion to seek an indictment
if this is a serious offense
that they think there was an error.
So the rationale is
they have extraordinary discretion in this area.
And I think that the rationale for allowing a grand jury
to make a second presentment to a grand jury
is that there's no opportunity for an appeal
when a grand jury declines to indict.
And so the court has said,
"We are gonna allow them to represent to the grand jury
because there's no other avenue for error correction
in case that first grand jury got it wrong."
But the court has also said,
"More than that would require some judicial oversight."
But I think the main point I wanna make is that
the Commonwealth isn't really harmed by holding us
to the rule that the magistrate's decision must be obeyed.
We don't want the Commonwealth to have an incentive
to refile the same application
to a different clerk magistrate to wait two or three years.
-: That's a little weird to me because I think,
if there's no deadline on filing the 2113,
or seeking redetermination by a district court judge,
then they are being harmed
because it's basically a procedural choice.
They decided to go back and start afresh
rather than seeking appellate review,
which they could have done at the same time,
since there was no time limit.
-: I think that the legislature
has indicated that the defendant
in that statute 218, section 35
has indicated that there is a time limit
beyond which a defendant does have a finality interest
that is vested in a decision that says, "You're done.
You don't have to be prosecuted."
-: [Justice Wolohojian] Okay, I'm gonna just ask
Justice Dewar if you still wanted to ask a question.
-: Just briefly, did you wanna address the ruling
of the trial court that the due process claim failed
because the defendant had not shown harm
from the three year delay?
The judge acknowledged
that the three year delay was lengthy,
but fell within the statute of limitations,
and did you wanna address that point?
-: Well, I would say that our due process argument
is tied to our collateral estoppel argument
and collateral estoppel doesn't require
a finding of prejudice other than the prejudice adherent
in having your being brought back into court
to re-litigate an issue that's already been litigated.
If this case goes back to the trial court
and we do not prevail here, I think we would have a basis
to seek further relief for delay
that would require an evidentiary hearing
where both sides would be able to present evidence
on the prejudice question.
-: Under rule 36, correct?
The last prior rule 36,
you could bring the delay claim, right?
-: [Attorney LeClair] I believe we'd have that issue.
Yes Your Honor.
-: Okay. Thank you. -: Thank you.
-: Okay, Attorney Lynch.
-: Morning, may I please the court,
Travis Lynch for the Commonwealth,
asking that the 2113 petition in this case be denied.
There's the threshold question about whether 2113,
or these claims are even reviewable under 2113,
which we haven't talked about yet today.
And in our view, the claims aren't reviewable
under chapter 211, section three
in this interlocutory posture
because they are not the functional equivalent
of a right not to be tried.
Because fundamentally, even if there's some problem
with the district court proceedings,
the Commonwealth could just get an indictment.
So just like the NM case,
the claim really is, maybe, at best for them.
I have a right not to be proceeded against
in district court by a complaint,
but that type of claim doesn't get through on 2113.
And I understand that it's reserved and reported
by the state justice- -: Where's the remedy
for the Commonwealth negligence, at least in this case?
-: Well, I think the defendant would need to show
some concrete prejudice from that if-
-: You would concede,
the prosecution was negligent in this case, right?
-: I would certainly say that it wasn't best practice
to wait this long, and I agree that-
Justice Gaziano: Well, not appealing.
-: Well we don't have to do that.
That's not a necessary part of the process, but-
-: But you can't wait until the guy, the defendant,
asked for his firearm back and then go back to refile.
Right? I mean there is something untoward about that.
-: Well, I would say that that's based
on a one-sided affidavit- -: Well that's what we have.
-: That's what the defendant says.
We didn't agree to those facts.
That's not part of the agreed- -: The timeline though is odd.
-: I mean it is odd. I mean, you can't run from that.
I mean certainly in seven years in the BMC
I'd never seen this, right?
I mean, you don't get PC, you appeal to the judge.
That's the standard operating procedure.
So there's something odd about here.
Whether there's something unlawful is another question.
-: Sure, it might be odd,
but I don't think that it's unlawful not to use
the optional district court practice manual option.
It's an option. It's not something that's mandatory.
It's not even a statutorily created process.
-: It's not, but as to the term untoward,
it does feel like it's shopping, right?
And that's one of the things that certainly,
as a judicial officer, you're not going to countenance
that folks are not getting probable cause or either finding
a more favorable assistant clerk magistrate,
or waiting for, you know, the preferred judge
in the first session to take the appeal.
We can't be part and parcel of that.
-: Well...
I think...
Right, but that's not a collateral estoppel issue.
-: [Justice Wendlandt] Right,
so why don't we turn to the merits?
-: Okay. So-
-: So on the collateral estoppel issue,
what's the rationale for allowing the Commonwealth,
if they fail in the district court,
to establish probable cause for whatever reason,
and then allowing the Commonwealth, then,
to go convene a grand jury to seek an indictment?
-: So the old bind over cases.
So...
You know, to be honest with you,
I'm not exactly sure what the rationale for that is-
-: Isn't that important why, in our jurisprudence,
we allow the Commonwealth to go convene a grand jury
when they've failed to establish probable cause?
For this case.
-: The Commonwealth can always choose to proceed
by way of indictment in the Superior Court
because that's the court that has general jurisdiction
over criminal offenses, but-
-: But that's not responsive.
I'm wondering what the rationale is for,
if at first you don't succeed in the district court,
you can go convene a grand jury.
-: Well in Burke, didn't the court say
that the reason why you can go to the grand jury
after no bind over was because there's no appellate right?
-: Right. You're right.
There is no appellate right- -: Right,
which is the opposite of what happens here.
There is an appellate right. -: Well, I would say-
-: Well there's not a statutory appellate right,
but there's a means of appeal through that.
-: There is a means to obtain some degree of review,
but I would submit that it's not truly an appeal.
I think the court- -: So if the rationale
is that you didn't have an appellate right under Burke,
and here you do have an appellate option,
what's the rationale for allowing the Commonwealth
to do what it has done in this case?
-: Because that's not really a statutorily created process-
-: So you think under Burke,
you need a statute that tells you you can appeal,
and it's not enough that we have in arduous prudence
created a 35A appeal.
-: I think the court recognizes a 35A appeal.
I think in Bradford against Knights,
it talks about how it was a practice of the district court
that the court describes,
but one of the things that I would point out is in,
I believe Boston Globe partners,
the court says it's not really an appeal.
It's an appeal in scare quotes because the judge
doesn't actually have to pass on the merits.
The judge can do whatever they want with the appeal.
It's not really an appeal in the sense that
the higher court has to review the merits.
So it's not truly an appeal.
-: So, but I guess I'm trying to figure out
why the Commonwealth doesn't have to
at least try to activate that avenue of appeal,
which you call a faux appeal.
And if it becomes not a real appeal,
then maybe you can go seek an indictment, or retry again,
but why don't you have to at least try
that appellate process
if the rationale for allowing option B to be triggered
when option A doesn't work is the lack of an appeal.
-: Again, I mean, I don't want to not answer your question,
but again, I would say it's not really an appeal.
That's my answer to that.
-: [Justice Wendlandt] So you don't have to even try it.
-: You don't have to, no,
there's nothing that says that we have to.
It's not a statutorily created process.
It's similar, I mean in the grand jury context,
the rationale for allowing us to present the same case
to a second grand jury is
there's no statute that says we can't take that approach.
And at least in this case- -: It's not because
you can't appeal the failure of the grand jury to indict?
-: It's because the legislature hasn't created a limitation.
And at least on the facts of that McCravy case,
the court declined to create a limitation,
at least in the situation where it's only two presentations.
And here, we've only done two presentations,
or sorry, the police department did two presentations.
-: I have a question about that.
I mean, are you really suggesting
that the police didn't cooperate with the ADA
in seeking this application and the decision
on whether or not to appeal the first one?
'Cause it seems like the record was pretty clear
that Officer Vet, Vight? -: I believe that's right.
-: Was cooperating with the ADA?
Got bad advice, maybe, from the first ADA
and then reconvened with the second ADA and got more advice?
Attorney Lynch: So...
-: I mean this wasn't an application
by the officer individually, it was in his official capacity
in cooperation with the ADA, right?
-: I don't know if the record is that clear
as to what the ADA's role was
when the initial complaint was applied for.
I don't know if the record is that clear,
but as the judge said, as the lower court judge,
the experienced district court judge says,
as a practical matter, the district attorney
doesn't usually actually appear at the show cause hearings.
And that's one of the factors to consider
in whether there's mutuality of parties,
which is another necessary element of collateral estoppel.
-: Do you think that there's a problem
with the defendant's collateral estoppel case
because this is really a legal issue
as opposed to a factual issue
that's been determined by anybody?
whether that this particular crime
requires the motor vehicle or not?
-: I'm not sure the answer to your question, respectfully.
-: [Justice Wendlandt] Okay, that's fair.
-: But as a matter of due process,
the clerk magistrate obviously got it wrong in this case.
The magistrate said you need a motor vehicle,
you need to be in a motor vehicle,
basically, to commit this crime.
The plain text seems to say if you're carrying a firearm
while intoxicated, sorry,
a loaded firearm while intoxicated,
or you have it under your control in a motor vehicle,
it's an either or, and in this case,
the complaint application shows the defendant is intoxicated
while having a gun on his person.
So to the extent that there's a due process concern
here in the abstract,
I think it's significantly lessened in this case,
given the nature of the magistrate's first denial,
because the first magistrate
just didn't understand the statute.
It's not as if she discredited the police officers
at the first hearing.
She didn't make a negative credibility call against them,
which I suppose, theoretically, is a possible way
for her to have denied the complaint.
But it seems as though it's a legal error
that was the basis for her denial.
And on a level of due process, I would say,
where the first decision was clearly wrong,
there's just no basis to say we can't get a complaint now.
-: Well, you're speculating, right,
when you say that the clerk magistrate
didn't discredit the police officers, correct?
-: Well, I would- -: Because you know, the clerk-
-: Inference respectfully. -: You're drawing an inference,
but the clerk magistrate could have
listened to the police officers,
or police officer, I think it was singular,
and thought to herself, "I don't believe this,"
and then just written down, you know, said like,
"You haven't met the requirements of the statute,"
just to be polite, or something.
We'd have no idea what, we don't have a written,
we don't know, correct?
Like the notation on the docket
is not a written decision, is it, or is it?
-: Well, that's the closest thing we have
to a decision on the merits in this case.
And the only thing we have that go on
is her misinterpretation of the statute.
But all of what you just said would also tend to suggest
is not really a fully reasoned decision,
which would also weigh against
it having collateral estoppel effect,
not fully reasoned decision, which I would say
robs it of any finality value that it might have.
-: [Justice Wendlandt] What prong
of collateral estoppel is that?
-: If you get a 25B determination by a judge,
they make the wrong call and not fully reasoned,
you still have a problem, right?
Attorney Lynch: Well that's a double jeopardy problem.
-: Right. -: We're not,
the double jeopardy in this case-
-: Your criteria of fully reasoned.
-: Right, but the Commonwealth
also can't do anything about that,
and we have no right of appeal from that decision,
and we're just out because of double jeopardy,
but double jeopardy's different from collateral estoppel.
-: Right. I get that. -: Right.
This is not a double jeopardy case, obviously.
So at least where, to date,
the Commonwealth can present the same case
to two different grand juries, and that's still good law,
and at least on this fact pattern
where the magistrate denied the complaint application
because she didn't understand the statute,
there's no due process issue in this case.
And I don't think that the court needs to go any further
than the facts of this case.
-: [Justice Wendlandt] Have you looked for any records
from that first clerk magistrate's decision?
-: I have not, and it's been represented
that they don't exist anymore.
-: Is that because of the one year destruction deadline?
-: I infer that that's the case, but I honestly don't-
-: [Justice Wendlandt] What do we do about that?
-: The fact that we don't have a record from that...
-: How does that weigh
in the collateral estoppel analysis, if at all?
-: I don't think it does because, I mean,
the district court is following a statutory procedure
for record retention.
I don't think that that,
at least where the statute of limitations
for this offense is six years,
I don't see why an interaction
between that record retention statute
and the statute of limitation does anything.
We're clearly- -: Can you address
counsel's argument that the statute of limitations
protects the interest in when prosecution can be commenced
as opposed to any sort of vested finality interest
that the defendant may have in the first decision?
-: Well, given that the legislature has said
that the general statute of limitations is six years,
I would say that the defendant's reliance on a one year,
essentially statute of limitations, is misplaced.
The legislature has made a policy judgment
that the Commonwealth gets to start a criminal prosecution
six years after the incident, so-
-: But what do we do with the fact that the Commonwealth
tried to start within the six years?
How many at bats (laughs) does the Commonwealth get?
-: I don't think you need to go further than saying
we get at least two,
which is what the court also did in McCravy.
-: The delay in this case, when we started talking
about how the government hasn't covered itself in glory,
at the very end of council's argument,
she mentioned dismissal under Rule 36, correct?
The last part of Rule 36 for delay.
-: Yes, she talked about that. -: Right.
So that would be a means to vindicate
the defendant's interest in delay here, right?
Or punish the Commonwealth for unreasonable delay?
Attorney Lynch: Of rules, well, there's a constitutional-
-: There's a dismissal.
-: Well, I don't think Rule 30,
are you talking about non prejudice-based rule 36?
-: Right. -: Well,
there's never a return date, so-
-: Well there's timeliness under rule 36
of bringing charges when you know the charges, correct?
-: I believe you're right.
But- -: Let's assume I am.
-: Sure. -: All right.
That would be a way to vindicate the defendant's interest
in this unreasonable delay, correct?
-: It's possible, yes,
but that's not the issue that's here right now.
Unless there's any further questions,
I'd ask the petition be denied.
-: Okay. -: Thank you.