WEBVTT

1
00:00:00.000 --> 00:00:05.000
<v ->SJC 13645, Commonwealth versus Lewis c. Cabrera.</v>

2
00:00:06.563 --> 00:00:08.073
<v ->Okay, Attorney LeClair.</v>

3
00:00:10.170 --> 00:00:11.910
<v ->Good morning, Chief Justice Budd,</v>

4
00:00:11.910 --> 00:00:13.050
and may it please the court,

5
00:00:13.050 --> 00:00:15.393
Jessica LeClair for Lewis Cabrera.

6
00:00:16.500 --> 00:00:19.173
This case is about finality.

7
00:00:20.010 --> 00:00:23.040
At a certain point, a judicial officer's decision

8
00:00:23.040 --> 00:00:27.360
must be deemed final and binding on the parties,

9
00:00:27.360 --> 00:00:29.490
especially where that decision has the effect

10
00:00:29.490 --> 00:00:32.310
of terminating a prosecution.

11
00:00:32.310 --> 00:00:34.620
In this case, where the Commonwealth

12
00:00:34.620 --> 00:00:37.860
did not seek judicial redetermination

13
00:00:37.860 --> 00:00:40.500
of that first magistrate's decision,

14
00:00:40.500 --> 00:00:43.380
did not seek a 2113 petition,

15
00:00:43.380 --> 00:00:46.500
did not resubmit that complaint with new evidence,

16
00:00:46.500 --> 00:00:48.540
or ask the first magistrate

17
00:00:48.540 --> 00:00:51.603
to reconsider his interpretation of the statute,

18
00:00:52.620 --> 00:00:56.940
and offered no explanation for the close to three year delay

19
00:00:56.940 --> 00:01:00.180
before refiling a second application for complaint,

20
00:01:00.180 --> 00:01:04.230
we are long past the point of finality,

21
00:01:04.230 --> 00:01:08.670
and it is our position that that first magistrate's decision

22
00:01:08.670 --> 00:01:12.090
is now final.
(multiple people respond)

23
00:01:12.090 --> 00:01:16.680
<v ->Do you have case law for that? What do you have to offer?</v>

24
00:01:16.680 --> 00:01:18.360
<v ->This is a unique situation,</v>

25
00:01:18.360 --> 00:01:23.073
but I would point the court to Commonwealth v Williams,

26
00:01:25.620 --> 00:01:29.563
and that's 431 Mass 71, it's cited in my brief

27
00:01:29.563 --> 00:01:34.563
where the Commonwealth failed to take steps

28
00:01:35.610 --> 00:01:38.310
to seek judicial review of a decision,

29
00:01:38.310 --> 00:01:41.880
denying a motion to suppress, and instead,

30
00:01:41.880 --> 00:01:45.795
dismiss the case and then refile for an indictment

31
00:01:45.795 --> 00:01:47.940
that that decision was final

32
00:01:47.940 --> 00:01:49.800
because the Commonwealth had an opportunity

33
00:01:49.800 --> 00:01:53.103
to review the decision and chose not to.

34
00:01:53.103 --> 00:01:55.350
<v ->Counsel, assume for the sake of argument,</v>

35
00:01:55.350 --> 00:01:57.750
that they could have taken an appeal to a judge.

36
00:01:59.130 --> 00:02:01.440
If you're within the statute of limitations,

37
00:02:01.440 --> 00:02:04.980
you don't suggest that if a grand jury no bills a case

38
00:02:04.980 --> 00:02:07.920
that the Commonwealth can't represent

39
00:02:07.920 --> 00:02:09.810
to the grand jury, do you?

40
00:02:09.810 --> 00:02:13.530
<v ->No, Your Honor-</v>
<v ->So how would this fit</v>

41
00:02:13.530 --> 00:02:16.920
within that if there's no probable cause

42
00:02:16.920 --> 00:02:20.070
and a magistrate looks at it this time around,

43
00:02:20.070 --> 00:02:22.500
and I understand that there was an intermediate step

44
00:02:22.500 --> 00:02:24.000
that they could take.

45
00:02:24.000 --> 00:02:26.850
Why can't they just go back in with another application

46
00:02:26.850 --> 00:02:29.670
if it's within the statute of limitations?

47
00:02:29.670 --> 00:02:31.440
<v ->The reason is, first of all,</v>

48
00:02:31.440 --> 00:02:34.530
the statute of limitations serves a different interest.

49
00:02:34.530 --> 00:02:36.030
<v ->It does, but I'm just saying,</v>

50
00:02:36.030 --> 00:02:37.980
if you're not outside of the statute of limitations,

51
00:02:37.980 --> 00:02:40.110
why can't they just go back in like they did?

52
00:02:40.110 --> 00:02:42.780
If you can go back in and re-indict

53
00:02:42.780 --> 00:02:44.670
or re-present to the grand jury,

54
00:02:44.670 --> 00:02:47.250
why should this be any different than that?

55
00:02:47.250 --> 00:02:49.440
<v ->The reason is that if you do that,</v>

56
00:02:49.440 --> 00:02:52.920
then you're endorsing what happened here,

57
00:02:52.920 --> 00:02:55.560
which is rendering that first magistrate's decision

58
00:02:55.560 --> 00:02:57.540
essentially optional.

59
00:02:57.540 --> 00:03:01.050
And the collateral estoppel doctrine

60
00:03:01.050 --> 00:03:04.113
serves the interests of reliance on adjudication.

61
00:03:06.450 --> 00:03:09.480
The legislature says this is a judicial officer

62
00:03:09.480 --> 00:03:13.650
who is vested with discretion and required

63
00:03:13.650 --> 00:03:16.320
to make a initial determination of probable cause

64
00:03:16.320 --> 00:03:18.810
that will either terminate the prosecution

65
00:03:18.810 --> 00:03:20.190
or allow it to proceed.

66
00:03:20.190 --> 00:03:23.586
And we want the parties to obey that decision and follow-

67
00:03:23.586 --> 00:03:26.531
<v Judge>Could the DA have indicted the case?</v>

68
00:03:26.531 --> 00:03:30.150
<v ->We do not dispute that the Commonwealth</v>

69
00:03:30.150 --> 00:03:31.353
could have sought an indictment.

70
00:03:31.353 --> 00:03:33.203
<v Judge>Okay then, how is it final?</v>

71
00:03:34.647 --> 00:03:37.230
<v ->The decision by the magistrate,</v>

72
00:03:37.230 --> 00:03:39.720
finding no probable cause, is final.

73
00:03:39.720 --> 00:03:41.080
The Commonwealth could have indicted-

74
00:03:41.080 --> 00:03:43.080
<v ->Okay, let's talk about the word final.</v>

75
00:03:43.980 --> 00:03:46.710
You agree that the magistrate

76
00:03:46.710 --> 00:03:48.720
finds no probable cause, right?

77
00:03:48.720 --> 00:03:51.720
And there's no appeal. You say it's final.

78
00:03:51.720 --> 00:03:55.890
You also agree that the DA could have said, "Okay,

79
00:03:55.890 --> 00:03:56.723
we're gonna go to the grand jury,

80
00:03:56.723 --> 00:03:59.130
and we're gonna indict for the exact same offense,

81
00:03:59.130 --> 00:04:02.340
and the person would be hauled into superior court

82
00:04:02.340 --> 00:04:03.173
and arraigned.

83
00:04:04.050 --> 00:04:05.223
Where's the finality?

84
00:04:06.900 --> 00:04:11.850
<v ->The finality is because the Commonwealth didn't do that,</v>

85
00:04:11.850 --> 00:04:15.720
first of all, but second, they had an-

86
00:04:15.720 --> 00:04:17.280
<v ->I'm asking you about the finality</v>

87
00:04:17.280 --> 00:04:18.510
of the magistrate's decision

88
00:04:18.510 --> 00:04:21.720
where you concede that the case could continue

89
00:04:21.720 --> 00:04:23.870
as a superior court case.

90
00:04:23.870 --> 00:04:26.400
<v ->I would concede that it could have continued</v>

91
00:04:26.400 --> 00:04:28.680
within a reasonable time, whether-

92
00:04:28.680 --> 00:04:31.170
<v Justice Gaziano>Being the statute of limitations.</v>

93
00:04:31.170 --> 00:04:35.247
<v ->But my client's interest in finality-</v>

94
00:04:35.247 --> 00:04:37.920
<v ->I'm not saying this wasn't harsh.</v>

95
00:04:37.920 --> 00:04:40.140
The question is whether it's precluded

96
00:04:40.140 --> 00:04:41.964
by collateral estoppel.

97
00:04:41.964 --> 00:04:43.920
Collateral estoppel requires finality,

98
00:04:43.920 --> 00:04:46.680
and as I'm hearing your argument and you concede

99
00:04:46.680 --> 00:04:48.780
that the case could have been indicted,

100
00:04:48.780 --> 00:04:50.673
I'm not getting finality from this.

101
00:04:51.808 --> 00:04:54.900
<v ->Well, the grand jury is an independent body,</v>

102
00:04:54.900 --> 00:04:58.443
it's not a judicial body, and so that grand jury,

103
00:04:59.430 --> 00:05:03.270
the Commonwealth could have presented this to a grand jury.

104
00:05:03.270 --> 00:05:06.270
Whether that grand jury would've indicted, we don't know,

105
00:05:06.270 --> 00:05:07.920
but we have a magistrate,

106
00:05:07.920 --> 00:05:10.680
a judicial officer who did make a decision.

107
00:05:10.680 --> 00:05:11.717
We have a legal-

108
00:05:11.717 --> 00:05:15.840
<v ->So the judicial officer's decision is not final</v>

109
00:05:15.840 --> 00:05:17.520
for purposes of the grand jury,

110
00:05:17.520 --> 00:05:22.520
but it is final for purposes of refiling in that same court?

111
00:05:22.920 --> 00:05:25.050
<v ->Yes.</v>
<v ->Where is that?</v>

112
00:05:25.050 --> 00:05:27.390
What's the legal authority for that proposition,

113
00:05:27.390 --> 00:05:31.680
that finality would be determined

114
00:05:31.680 --> 00:05:36.240
on whether you go back to the same clerk magistrate

115
00:05:36.240 --> 00:05:40.233
or a new grand jury, separate path?

116
00:05:41.400 --> 00:05:44.010
<v ->I think the finality comes in because-</v>

117
00:05:44.010 --> 00:05:47.910
<v ->No, what's the legal authority for your position</v>

118
00:05:47.910 --> 00:05:51.810
that a decision can be final in one context,

119
00:05:51.810 --> 00:05:56.373
but not in another, where it's the same party, same issue?

120
00:05:58.140 --> 00:06:00.990
<v ->I would point the court, again, to Commonwealth v Williams</v>

121
00:06:00.990 --> 00:06:03.720
where they said the decision was final

122
00:06:03.720 --> 00:06:07.740
because the Commonwealth did not pursue judicial review

123
00:06:07.740 --> 00:06:09.980
in the proper forum.

124
00:06:09.980 --> 00:06:13.740
<v ->When you talk about a judicial determination</v>

125
00:06:13.740 --> 00:06:16.620
at the inception of no probable cause,

126
00:06:16.620 --> 00:06:19.620
what about the old fashioned probable cause hearing?

127
00:06:19.620 --> 00:06:22.350
Right, so back in the old days,

128
00:06:22.350 --> 00:06:23.790
they used to have probable cause hearings.

129
00:06:23.790 --> 00:06:26.317
Probable cause hearing, a district court judge says,

130
00:06:26.317 --> 00:06:28.350
"No probable cause."

131
00:06:28.350 --> 00:06:29.550
Does that preclude the Commonwealth

132
00:06:29.550 --> 00:06:33.091
from going to the grand jury and seeking an indictment?

133
00:06:33.091 --> 00:06:36.167
<v ->No, the Commonwealth,</v>

134
00:06:36.167 --> 00:06:40.830
I mean the part of the Commonwealth's interests

135
00:06:40.830 --> 00:06:44.220
aren't really harmed by a ruling in my client's favor

136
00:06:44.220 --> 00:06:49.220
but what we want to impress is reliance on adjudication.

137
00:06:49.950 --> 00:06:51.821
We don't want the Commonwealth-

138
00:06:51.821 --> 00:06:53.760
<v ->Well, I'm not saying they did a good job,</v>

139
00:06:53.760 --> 00:06:55.950
and I'm not saying it's not harsh.

140
00:06:55.950 --> 00:06:59.760
The question is when it's barred by collateral estoppel.

141
00:06:59.760 --> 00:07:01.433
<v ->And I think that the reason it's barred is because-</v>

142
00:07:01.433 --> 00:07:05.433
<v ->There's no attaboy to counsel over there.</v>

143
00:07:06.376 --> 00:07:08.043
They should have appealed.

144
00:07:09.150 --> 00:07:13.380
<v ->Right, and if they don't appeal, then there's no reason</v>

145
00:07:13.380 --> 00:07:15.120
why they would need to go to a grand jury.

146
00:07:15.120 --> 00:07:16.560
They can just keep presenting this

147
00:07:16.560 --> 00:07:17.670
to a different magistrate.

148
00:07:17.670 --> 00:07:21.360
We have a concern about forum shopping, in essence.

149
00:07:21.360 --> 00:07:25.680
In other words, let's say that they did have

150
00:07:25.680 --> 00:07:29.429
a show cause hearing, the magistrate denied probable cause-

151
00:07:29.429 --> 00:07:30.450
<v ->The magistrate, in this case,</v>

152
00:07:30.450 --> 00:07:32.913
was legally wrong about an element, correct?

153
00:07:34.031 --> 00:07:36.750
<v ->I would agree that the statute, I mean,</v>

154
00:07:36.750 --> 00:07:41.750
I raised the question of whether there was probable cause.

155
00:07:41.820 --> 00:07:43.620
I think it's ambiguous and the rule of laity

156
00:07:43.620 --> 00:07:47.940
may entitle my client to relief if this case were to proceed

157
00:07:47.940 --> 00:07:50.700
to a direct appeal on that question.

158
00:07:50.700 --> 00:07:53.670
But I think the Commonwealth

159
00:07:53.670 --> 00:07:55.050
could have asked that magistrate

160
00:07:55.050 --> 00:07:57.570
to reconsider their interpretation of the statute.

161
00:07:57.570 --> 00:07:58.520
<v ->Sorry, excuse me.</v>

162
00:08:02.640 --> 00:08:04.560
Collateral estoppel only applies

163
00:08:04.560 --> 00:08:07.020
where an issue was necessarily decided

164
00:08:07.020 --> 00:08:08.340
in the prior proceeding.

165
00:08:08.340 --> 00:08:11.040
So on the basis of the record before us,

166
00:08:11.040 --> 00:08:13.560
what is your position as to what we know

167
00:08:13.560 --> 00:08:16.380
was necessarily decided, and particularly,

168
00:08:16.380 --> 00:08:19.893
what, if any, factual issue was necessarily decided?

169
00:08:21.030 --> 00:08:23.550
<v ->The factual issue decided in our position</v>

170
00:08:23.550 --> 00:08:26.820
is that the magistrate looked at the facts

171
00:08:26.820 --> 00:08:28.140
alleged by the Commonwealth,

172
00:08:28.140 --> 00:08:31.680
which was my client was on his porch with a firearm,

173
00:08:31.680 --> 00:08:33.630
and appeared to be under the influence.

174
00:08:33.630 --> 00:08:36.795
And those factual circumstances

175
00:08:36.795 --> 00:08:41.795
did not satisfy the elements of the 10-H statute

176
00:08:42.750 --> 00:08:44.370
that he was charged with.

177
00:08:44.370 --> 00:08:47.580
So that would be the factual application

178
00:08:47.580 --> 00:08:49.500
of the legal standard to those facts,

179
00:08:49.500 --> 00:08:51.510
and that was what was decided.

180
00:08:51.510 --> 00:08:56.280
And once that magistrate made that decision, yes,

181
00:08:56.280 --> 00:08:57.950
the Commonwealth could have...

182
00:08:59.790 --> 00:09:03.180
Well let's, they could go to the grand jury,

183
00:09:03.180 --> 00:09:06.300
but they could also appeal, and there's rules that say

184
00:09:06.300 --> 00:09:08.520
they have to seek judicial review.

185
00:09:08.520 --> 00:09:10.350
We do not want a system where-

186
00:09:10.350 --> 00:09:12.783
<v ->May I ask you about that last statement?</v>

187
00:09:14.550 --> 00:09:17.750
So I don't know which rules you're referring to

188
00:09:17.750 --> 00:09:21.202
that mandates further judicial review.

189
00:09:21.202 --> 00:09:25.653
I see the complaint standard that you put in your addendum.

190
00:09:26.790 --> 00:09:30.060
It didn't look like it was a mandatory requirement.

191
00:09:30.060 --> 00:09:32.260
Am I correct?
<v ->Yes. I misspoke.</v>

192
00:09:32.260 --> 00:09:33.152
<v ->And also, right,</v>

193
00:09:33.152 --> 00:09:35.850
and 2113 is not mandatory, right?

194
00:09:35.850 --> 00:09:39.570
It's not mandatory to seek 2113 review.

195
00:09:39.570 --> 00:09:43.053
And my question is, with respect to either of those,

196
00:09:44.160 --> 00:09:48.884
is there a time limit for seeking redetermination by a judge

197
00:09:48.884 --> 00:09:52.053
under the complaint standard rules?

198
00:09:53.160 --> 00:09:56.280
<v ->I believe the complaint standards say,</v>

199
00:09:56.280 --> 00:09:59.107
or suggest, a reasonable time for seeking judicial-

200
00:09:59.107 --> 00:10:00.990
<v ->[Justice Wolohojian] Do they have a deadline?</v>

201
00:10:00.990 --> 00:10:03.693
<v ->But there's no-</v>
<v ->Is there a deadline on 2113?</v>

202
00:10:04.714 --> 00:10:05.837
<v ->[Attorney LeClair] I'm not aware of a deadline on 2113.</v>

203
00:10:05.837 --> 00:10:10.770
<v ->Right, so if there's no deadline,</v>

204
00:10:10.770 --> 00:10:14.490
then what weight can we give to the fact

205
00:10:14.490 --> 00:10:19.110
that they didn't seek, or they haven't yet sought,

206
00:10:19.110 --> 00:10:22.170
review under either of those mechanisms?

207
00:10:22.170 --> 00:10:24.810
I mean, in terms of determining whether

208
00:10:24.810 --> 00:10:29.670
the clerk magistrate's determination was final.

209
00:10:29.670 --> 00:10:33.180
<v ->So our position is that they have to seek review</v>

210
00:10:33.180 --> 00:10:36.360
within a reasonable amount of time

211
00:10:36.360 --> 00:10:40.320
because the defendant has an interest

212
00:10:40.320 --> 00:10:43.020
in the finality of the decision.

213
00:10:43.020 --> 00:10:47.190
<v ->That's usually why we have a statute of limitations. No?</v>

214
00:10:47.190 --> 00:10:50.040
<v ->But the statute of limitations</v>

215
00:10:50.040 --> 00:10:51.210
serves a different interest.

216
00:10:51.210 --> 00:10:53.340
The interest served by the statute of limitations

217
00:10:53.340 --> 00:10:56.100
is we don't want somebody charged with a crime,

218
00:10:56.100 --> 00:11:01.050
we don't want this delay before they initiate a prosecution.

219
00:11:01.050 --> 00:11:04.290
But here, we have a prosecution was already initiated,

220
00:11:04.290 --> 00:11:07.927
we have a judge or a judicial officer who said,

221
00:11:07.927 --> 00:11:10.680
"We're done here, you can go home.

222
00:11:10.680 --> 00:11:13.170
You are not charged with a crime."

223
00:11:13.170 --> 00:11:18.170
My client has an interest in that decision, that to him,

224
00:11:18.348 --> 00:11:21.213
he reasonably believed that magistrate was correct,

225
00:11:21.213 --> 00:11:23.940
that the litigation had terminated.

226
00:11:23.940 --> 00:11:27.067
The legislature, in 218, section 35 says,

227
00:11:27.067 --> 00:11:32.067
"One year after a magistrate says there's no probable cause,

228
00:11:32.380 --> 00:11:34.620
we are going to destroy the records

229
00:11:34.620 --> 00:11:36.570
of that application for complaint."

230
00:11:36.570 --> 00:11:40.590
And that's because it's to protect the accused

231
00:11:40.590 --> 00:11:44.130
from having these public documents available

232
00:11:44.130 --> 00:11:48.930
when there really hasn't been that legal standard satisfied.

233
00:11:48.930 --> 00:11:53.160
And so that would suggest that after one year,

234
00:11:53.160 --> 00:11:58.140
the defendant is entitled to rely on that judicial decision,

235
00:11:58.140 --> 00:12:01.800
and if the Commonwealth doesn't take some action

236
00:12:01.800 --> 00:12:06.690
within that period of time, then the defendant's interest

237
00:12:06.690 --> 00:12:09.750
in the finality of that decision

238
00:12:09.750 --> 00:12:12.870
has essentially vested or crystallized.

239
00:12:12.870 --> 00:12:15.390
And this court speaks to that concept

240
00:12:15.390 --> 00:12:16.980
in Commonwealth v. Selavka

241
00:12:16.980 --> 00:12:20.179
where there was an illegal sentence,

242
00:12:20.179 --> 00:12:23.310
and it's similar to the suggestion here

243
00:12:23.310 --> 00:12:24.660
that maybe this magistrate-

244
00:12:24.660 --> 00:12:26.280
<v Justice Gaziano>But Selavka,</v>

245
00:12:26.280 --> 00:12:27.930
they served the illegal sentence.

246
00:12:29.053 --> 00:12:32.400
<v ->And the probation period started,</v>

247
00:12:32.400 --> 00:12:34.530
and it was after one year

248
00:12:34.530 --> 00:12:36.900
that the Commonwealth wanted to impose GPS,

249
00:12:36.900 --> 00:12:38.613
and what this court said is,

250
00:12:39.790 --> 00:12:42.453
that finality interest has vested, and-

251
00:12:43.403 --> 00:12:47.430
<v ->The finality in Selavka, in the cases that follow Selavka,</v>

252
00:12:47.430 --> 00:12:51.180
had to do with imposition of a sentence.

253
00:12:51.180 --> 00:12:53.617
Much different than non-charges, right?

254
00:12:53.617 --> 00:12:55.680
<v ->I understand it's different,</v>

255
00:12:55.680 --> 00:12:58.770
but the doctrine of collateral estoppel

256
00:12:58.770 --> 00:13:01.200
does protect that same interest,

257
00:13:01.200 --> 00:13:03.750
the defendant's interest in finality,

258
00:13:03.750 --> 00:13:05.735
the defendant's interest in relying on-

259
00:13:05.735 --> 00:13:07.800
<v ->Which assumes it's the final judgment. That's the problem.</v>

260
00:13:07.800 --> 00:13:09.250
It's a chicken and egg issue.

261
00:13:10.517 --> 00:13:14.704
It assumes finality in your answer.

262
00:13:14.704 --> 00:13:18.090
(several people speaking)

263
00:13:18.090 --> 00:13:19.710
<v ->I apologize.</v>
<v ->No, I was gonna move along</v>

264
00:13:19.710 --> 00:13:21.210
to the due process issue, so-

265
00:13:21.210 --> 00:13:23.130
<v ->There's one other issue with the collateral estoppel,</v>

266
00:13:23.130 --> 00:13:25.140
if I could before we move on.

267
00:13:25.140 --> 00:13:28.020
So one of the things that we talk about with the finality,

268
00:13:28.020 --> 00:13:30.477
but it's also what is final.

269
00:13:30.477 --> 00:13:32.850
And when we're talking about collateral estoppel,

270
00:13:32.850 --> 00:13:37.470
you're talking about an ultimate fact that was determined.

271
00:13:37.470 --> 00:13:39.780
That isn't that, right?

272
00:13:39.780 --> 00:13:43.590
A probable cause determination, how does that fit

273
00:13:43.590 --> 00:13:46.110
when they're not making a determination

274
00:13:46.110 --> 00:13:49.500
on the merits of the underlying complaint?

275
00:13:49.500 --> 00:13:51.570
It's just probable cause.

276
00:13:51.570 --> 00:13:54.330
<v ->Well, I think collateral estoppel</v>

277
00:13:54.330 --> 00:13:56.730
has historically been given broad application,

278
00:13:56.730 --> 00:13:59.730
and so you could say the same of a motion to suppress.

279
00:13:59.730 --> 00:14:03.244
A judge is deciding whether this legal standard

280
00:14:03.244 --> 00:14:07.200
has been satisfied by applying that legal standard to facts.

281
00:14:07.200 --> 00:14:09.990
And so the magistrate, at that first hearing,

282
00:14:09.990 --> 00:14:12.750
is making what would be called

283
00:14:12.750 --> 00:14:14.580
a mixed question of facts and law,

284
00:14:14.580 --> 00:14:16.980
looking at the facts that are alleged in the police report,

285
00:14:16.980 --> 00:14:18.540
assuming those facts are true,

286
00:14:18.540 --> 00:14:20.820
and then asking whether they satisfy the elements.

287
00:14:20.820 --> 00:14:24.210
So we do think there's a factual question there

288
00:14:24.210 --> 00:14:25.380
that's being resolved.

289
00:14:25.380 --> 00:14:29.220
And in fact, that decision is ultimately what decides

290
00:14:29.220 --> 00:14:32.010
whether the prosecution will go forward or not.

291
00:14:32.010 --> 00:14:36.840
So historically, there hasn't been these carve outs

292
00:14:36.840 --> 00:14:38.970
to the doctrine of collateral estoppel

293
00:14:38.970 --> 00:14:40.980
as to any particular proceeding.

294
00:14:40.980 --> 00:14:42.270
It applies broadly.

295
00:14:42.270 --> 00:14:45.390
It does have stringent requirements

296
00:14:45.390 --> 00:14:50.390
to satisfy it and to win, but I do think it applies

297
00:14:50.460 --> 00:14:53.100
to all of the criminal proceeding.

298
00:14:53.100 --> 00:14:56.490
<v ->Counsel, what is the rationale, if you know,</v>

299
00:14:56.490 --> 00:14:59.850
for our jurisprudence that allows,

300
00:14:59.850 --> 00:15:02.700
in the context of what Justice Gaziano was talking about,

301
00:15:02.700 --> 00:15:07.047
the old probable cause hearings, allows the prosecution,

302
00:15:07.047 --> 00:15:10.800
if it fails to meet probable cause at the district court

303
00:15:10.800 --> 00:15:14.580
to then refile to convene a grand jury.

304
00:15:14.580 --> 00:15:16.230
What's the rationale behind that?

305
00:15:18.450 --> 00:15:22.650
<v ->Well, I think the rationale is that</v>

306
00:15:22.650 --> 00:15:24.840
if they're invested in the prosecution,

307
00:15:24.840 --> 00:15:27.870
there's possibility of wanting to proceed.

308
00:15:27.870 --> 00:15:31.710
The grand jury is a check on the prosecution,

309
00:15:31.710 --> 00:15:35.160
but the Commonwealth has the opportunity to error correct

310
00:15:35.160 --> 00:15:37.080
the district court's denial of probable cause,

311
00:15:37.080 --> 00:15:40.860
but they also have the discretion to seek an indictment

312
00:15:40.860 --> 00:15:43.170
if this is a serious offense

313
00:15:43.170 --> 00:15:46.047
that they think there was an error.

314
00:15:46.047 --> 00:15:51.047
So the rationale is

315
00:15:51.120 --> 00:15:54.900
they have extraordinary discretion in this area.

316
00:15:54.900 --> 00:15:57.930
And I think that the rationale for allowing a grand jury

317
00:15:57.930 --> 00:16:00.360
to make a second presentment to a grand jury

318
00:16:00.360 --> 00:16:03.540
is that there's no opportunity for an appeal

319
00:16:03.540 --> 00:16:06.030
when a grand jury declines to indict.

320
00:16:06.030 --> 00:16:07.927
And so the court has said,

321
00:16:07.927 --> 00:16:11.160
"We are gonna allow them to represent to the grand jury

322
00:16:11.160 --> 00:16:14.040
because there's no other avenue for error correction

323
00:16:14.040 --> 00:16:16.710
in case that first grand jury got it wrong."

324
00:16:16.710 --> 00:16:18.187
But the court has also said,

325
00:16:18.187 --> 00:16:22.257
"More than that would require some judicial oversight."

326
00:16:24.397 --> 00:16:29.397
But I think the main point I wanna make is that

327
00:16:29.417 --> 00:16:34.417
the Commonwealth isn't really harmed by holding us

328
00:16:34.650 --> 00:16:38.640
to the rule that the magistrate's decision must be obeyed.

329
00:16:38.640 --> 00:16:41.820
We don't want the Commonwealth to have an incentive

330
00:16:41.820 --> 00:16:43.710
to refile the same application

331
00:16:43.710 --> 00:16:48.107
to a different clerk magistrate to wait two or three years.

332
00:16:48.107 --> 00:16:52.140
<v ->That's a little weird to me because I think,</v>

333
00:16:52.140 --> 00:16:55.830
if there's no deadline on filing the 2113,

334
00:16:55.830 --> 00:16:59.310
or seeking redetermination by a district court judge,

335
00:16:59.310 --> 00:17:00.450
then they are being harmed

336
00:17:00.450 --> 00:17:03.390
because it's basically a procedural choice.

337
00:17:03.390 --> 00:17:06.480
They decided to go back and start afresh

338
00:17:06.480 --> 00:17:09.780
rather than seeking appellate review,

339
00:17:09.780 --> 00:17:11.880
which they could have done at the same time,

340
00:17:11.880 --> 00:17:13.380
since there was no time limit.

341
00:17:15.090 --> 00:17:16.680
<v ->I think that the legislature</v>

342
00:17:16.680 --> 00:17:19.530
has indicated that the defendant

343
00:17:19.530 --> 00:17:22.590
in that statute 218, section 35

344
00:17:22.590 --> 00:17:25.865
has indicated that there is a time limit

345
00:17:25.865 --> 00:17:30.600
beyond which a defendant does have a finality interest

346
00:17:30.600 --> 00:17:34.680
that is vested in a decision that says, "You're done.

347
00:17:34.680 --> 00:17:36.261
You don't have to be prosecuted."

348
00:17:36.261 --> 00:17:37.710
<v ->[Justice Wolohojian] Okay, I'm gonna just ask</v>

349
00:17:37.710 --> 00:17:40.230
Justice Dewar if you still wanted to ask a question.

350
00:17:40.230 --> 00:17:44.010
<v ->Just briefly, did you wanna address the ruling</v>

351
00:17:44.010 --> 00:17:47.400
of the trial court that the due process claim failed

352
00:17:47.400 --> 00:17:51.270
because the defendant had not shown harm

353
00:17:51.270 --> 00:17:53.070
from the three year delay?

354
00:17:53.070 --> 00:17:54.210
The judge acknowledged

355
00:17:54.210 --> 00:17:56.184
that the three year delay was lengthy,

356
00:17:56.184 --> 00:17:58.830
but fell within the statute of limitations,

357
00:17:58.830 --> 00:18:01.320
and did you wanna address that point?

358
00:18:01.320 --> 00:18:04.650
<v ->Well, I would say that our due process argument</v>

359
00:18:04.650 --> 00:18:07.200
is tied to our collateral estoppel argument

360
00:18:07.200 --> 00:18:09.750
and collateral estoppel doesn't require

361
00:18:09.750 --> 00:18:13.140
a finding of prejudice other than the prejudice adherent

362
00:18:13.140 --> 00:18:16.770
in having your being brought back into court

363
00:18:16.770 --> 00:18:20.100
to re-litigate an issue that's already been litigated.

364
00:18:20.100 --> 00:18:22.710
If this case goes back to the trial court

365
00:18:22.710 --> 00:18:26.820
and we do not prevail here, I think we would have a basis

366
00:18:26.820 --> 00:18:30.480
to seek further relief for delay

367
00:18:32.940 --> 00:18:35.130
that would require an evidentiary hearing

368
00:18:35.130 --> 00:18:37.440
where both sides would be able to present evidence

369
00:18:37.440 --> 00:18:39.090
on the prejudice question.

370
00:18:39.090 --> 00:18:40.410
<v ->Under rule 36, correct?</v>

371
00:18:40.410 --> 00:18:42.120
The last prior rule 36,

372
00:18:42.120 --> 00:18:45.034
you could bring the delay claim, right?

373
00:18:45.034 --> 00:18:46.260
<v ->[Attorney LeClair] I believe we'd have that issue.</v>

374
00:18:46.260 --> 00:18:47.867
Yes Your Honor.

375
00:18:47.867 --> 00:18:49.833
<v ->Okay. Thank you.</v>
<v ->Thank you.</v>

376
00:18:56.410 --> 00:18:58.053
<v ->Okay, Attorney Lynch.</v>

377
00:19:04.140 --> 00:19:05.640
<v ->Morning, may I please the court,</v>

378
00:19:05.640 --> 00:19:06.960
Travis Lynch for the Commonwealth,

379
00:19:06.960 --> 00:19:11.643
asking that the 2113 petition in this case be denied.

380
00:19:12.510 --> 00:19:15.690
There's the threshold question about whether 2113,

381
00:19:15.690 --> 00:19:18.240
or these claims are even reviewable under 2113,

382
00:19:18.240 --> 00:19:20.130
which we haven't talked about yet today.

383
00:19:20.130 --> 00:19:22.620
And in our view, the claims aren't reviewable

384
00:19:22.620 --> 00:19:24.300
under chapter 211, section three

385
00:19:24.300 --> 00:19:25.950
in this interlocutory posture

386
00:19:25.950 --> 00:19:27.960
because they are not the functional equivalent

387
00:19:27.960 --> 00:19:30.090
of a right not to be tried.

388
00:19:30.090 --> 00:19:34.830
Because fundamentally, even if there's some problem

389
00:19:34.830 --> 00:19:36.300
with the district court proceedings,

390
00:19:36.300 --> 00:19:38.160
the Commonwealth could just get an indictment.

391
00:19:38.160 --> 00:19:40.770
So just like the NM case,

392
00:19:40.770 --> 00:19:44.340
the claim really is, maybe, at best for them.

393
00:19:44.340 --> 00:19:46.050
I have a right not to be proceeded against

394
00:19:46.050 --> 00:19:48.480
in district court by a complaint,

395
00:19:48.480 --> 00:19:52.530
but that type of claim doesn't get through on 2113.

396
00:19:52.530 --> 00:19:55.200
And I understand that it's reserved and reported

397
00:19:55.200 --> 00:19:56.882
by the state justice-
<v ->Where's the remedy</v>

398
00:19:56.882 --> 00:20:01.882
for the Commonwealth negligence, at least in this case?

399
00:20:02.940 --> 00:20:04.710
<v ->Well, I think the defendant would need to show</v>

400
00:20:04.710 --> 00:20:07.470
some concrete prejudice from that if-

401
00:20:07.470 --> 00:20:09.213
<v ->You would concede,</v>

402
00:20:10.158 --> 00:20:13.233
the prosecution was negligent in this case, right?

403
00:20:14.700 --> 00:20:17.070
<v ->I would certainly say that it wasn't best practice</v>

404
00:20:17.070 --> 00:20:19.653
to wait this long, and I agree that-

405
00:20:20.835 --> 00:20:22.980
<v Justice Gaziano>Well, not appealing.</v>

406
00:20:22.980 --> 00:20:24.240
<v ->Well we don't have to do that.</v>

407
00:20:24.240 --> 00:20:26.760
That's not a necessary part of the process, but-

408
00:20:26.760 --> 00:20:29.190
<v ->But you can't wait until the guy, the defendant,</v>

409
00:20:29.190 --> 00:20:34.050
asked for his firearm back and then go back to refile.

410
00:20:34.050 --> 00:20:36.813
Right? I mean there is something untoward about that.

411
00:20:38.370 --> 00:20:39.990
<v ->Well, I would say that that's based</v>

412
00:20:39.990 --> 00:20:44.160
on a one-sided affidavit-
<v ->Well that's what we have.</v>

413
00:20:44.160 --> 00:20:45.390
<v ->That's what the defendant says.</v>

414
00:20:45.390 --> 00:20:46.740
We didn't agree to those facts.

415
00:20:46.740 --> 00:20:50.013
That's not part of the agreed-
<v ->The timeline though is odd.</v>

416
00:20:52.980 --> 00:20:56.310
<v ->I mean it is odd. I mean, you can't run from that.</v>

417
00:20:56.310 --> 00:20:59.520
I mean certainly in seven years in the BMC

418
00:20:59.520 --> 00:21:02.310
I'd never seen this, right?

419
00:21:02.310 --> 00:21:04.950
I mean, you don't get PC, you appeal to the judge.

420
00:21:04.950 --> 00:21:07.230
That's the standard operating procedure.

421
00:21:07.230 --> 00:21:08.880
So there's something odd about here.

422
00:21:08.880 --> 00:21:11.760
Whether there's something unlawful is another question.

423
00:21:11.760 --> 00:21:12.720
<v ->Sure, it might be odd,</v>

424
00:21:12.720 --> 00:21:15.090
but I don't think that it's unlawful not to use

425
00:21:15.090 --> 00:21:19.830
the optional district court practice manual option.

426
00:21:19.830 --> 00:21:21.930
It's an option. It's not something that's mandatory.

427
00:21:21.930 --> 00:21:24.510
It's not even a statutorily created process.

428
00:21:24.510 --> 00:21:28.020
<v ->It's not, but as to the term untoward,</v>

429
00:21:28.020 --> 00:21:30.750
it does feel like it's shopping, right?

430
00:21:30.750 --> 00:21:32.910
And that's one of the things that certainly,

431
00:21:32.910 --> 00:21:35.982
as a judicial officer, you're not going to countenance

432
00:21:35.982 --> 00:21:40.230
that folks are not getting probable cause or either finding

433
00:21:40.230 --> 00:21:42.390
a more favorable assistant clerk magistrate,

434
00:21:42.390 --> 00:21:45.240
or waiting for, you know, the preferred judge

435
00:21:45.240 --> 00:21:47.700
in the first session to take the appeal.

436
00:21:47.700 --> 00:21:50.943
We can't be part and parcel of that.

437
00:21:54.090 --> 00:21:54.923
<v ->Well...</v>

438
00:21:57.540 --> 00:21:58.373
I think...

439
00:21:59.700 --> 00:22:02.936
Right, but that's not a collateral estoppel issue.

440
00:22:02.936 --> 00:22:04.106
<v ->[Justice Wendlandt] Right,</v>

441
00:22:04.106 --> 00:22:05.370
so why don't we turn to the merits?

442
00:22:05.370 --> 00:22:06.960
<v ->Okay. So-</v>

443
00:22:06.960 --> 00:22:08.850
<v ->So on the collateral estoppel issue,</v>

444
00:22:08.850 --> 00:22:12.003
what's the rationale for allowing the Commonwealth,

445
00:22:13.260 --> 00:22:15.210
if they fail in the district court,

446
00:22:15.210 --> 00:22:17.910
to establish probable cause for whatever reason,

447
00:22:17.910 --> 00:22:19.560
and then allowing the Commonwealth, then,

448
00:22:19.560 --> 00:22:22.293
to go convene a grand jury to seek an indictment?

449
00:22:23.430 --> 00:22:24.960
<v ->So the old bind over cases.</v>

450
00:22:24.960 --> 00:22:25.880
So...

451
00:22:31.320 --> 00:22:32.670
You know, to be honest with you,

452
00:22:32.670 --> 00:22:34.150
I'm not exactly sure what the rationale for that is-

453
00:22:34.150 --> 00:22:38.040
<v ->Isn't that important why, in our jurisprudence,</v>

454
00:22:38.040 --> 00:22:42.250
we allow the Commonwealth to go convene a grand jury

455
00:22:43.290 --> 00:22:47.940
when they've failed to establish probable cause?

456
00:22:47.940 --> 00:22:48.990
For this case.

457
00:22:48.990 --> 00:22:51.420
<v ->The Commonwealth can always choose to proceed</v>

458
00:22:51.420 --> 00:22:53.130
by way of indictment in the Superior Court

459
00:22:53.130 --> 00:22:56.220
because that's the court that has general jurisdiction

460
00:22:56.220 --> 00:22:59.430
over criminal offenses, but-

461
00:22:59.430 --> 00:23:00.900
<v ->But that's not responsive.</v>

462
00:23:00.900 --> 00:23:05.070
I'm wondering what the rationale is for,

463
00:23:05.070 --> 00:23:08.520
if at first you don't succeed in the district court,

464
00:23:08.520 --> 00:23:10.563
you can go convene a grand jury.

465
00:23:11.550 --> 00:23:16.080
<v ->Well in Burke, didn't the court say</v>

466
00:23:16.080 --> 00:23:19.740
that the reason why you can go to the grand jury

467
00:23:19.740 --> 00:23:24.003
after no bind over was because there's no appellate right?

468
00:23:24.840 --> 00:23:27.000
<v ->Right. You're right.</v>

469
00:23:27.000 --> 00:23:28.080
There is no appellate right-
<v ->Right,</v>

470
00:23:28.080 --> 00:23:30.240
which is the opposite of what happens here.

471
00:23:30.240 --> 00:23:32.400
There is an appellate right.
<v ->Well, I would say-</v>

472
00:23:32.400 --> 00:23:33.810
<v ->Well there's not a statutory appellate right,</v>

473
00:23:33.810 --> 00:23:35.880
but there's a means of appeal through that.

474
00:23:35.880 --> 00:23:39.210
<v ->There is a means to obtain some degree of review,</v>

475
00:23:39.210 --> 00:23:42.720
but I would submit that it's not truly an appeal.

476
00:23:42.720 --> 00:23:44.406
I think the court-
<v ->So if the rationale</v>

477
00:23:44.406 --> 00:23:49.406
is that you didn't have an appellate right under Burke,

478
00:23:50.070 --> 00:23:53.100
and here you do have an appellate option,

479
00:23:53.100 --> 00:23:56.430
what's the rationale for allowing the Commonwealth

480
00:23:56.430 --> 00:23:58.983
to do what it has done in this case?

481
00:23:59.850 --> 00:24:03.480
<v ->Because that's not really a statutorily created process-</v>

482
00:24:03.480 --> 00:24:05.310
<v ->So you think under Burke,</v>

483
00:24:05.310 --> 00:24:08.310
you need a statute that tells you you can appeal,

484
00:24:08.310 --> 00:24:11.190
and it's not enough that we have in arduous prudence

485
00:24:11.190 --> 00:24:13.203
created a 35A appeal.

486
00:24:15.102 --> 00:24:17.700
<v ->I think the court recognizes a 35A appeal.</v>

487
00:24:17.700 --> 00:24:20.010
I think in Bradford against Knights,

488
00:24:20.010 --> 00:24:23.640
it talks about how it was a practice of the district court

489
00:24:23.640 --> 00:24:24.570
that the court describes,

490
00:24:24.570 --> 00:24:27.870
but one of the things that I would point out is in,

491
00:24:27.870 --> 00:24:29.280
I believe Boston Globe partners,

492
00:24:29.280 --> 00:24:31.260
the court says it's not really an appeal.

493
00:24:31.260 --> 00:24:33.750
It's an appeal in scare quotes because the judge

494
00:24:33.750 --> 00:24:35.700
doesn't actually have to pass on the merits.

495
00:24:35.700 --> 00:24:40.200
The judge can do whatever they want with the appeal.

496
00:24:40.200 --> 00:24:43.000
It's not really an appeal in the sense that

497
00:24:44.100 --> 00:24:47.388
the higher court has to review the merits.

498
00:24:47.388 --> 00:24:49.950
So it's not truly an appeal.

499
00:24:49.950 --> 00:24:53.253
<v ->So, but I guess I'm trying to figure out</v>

500
00:24:53.253 --> 00:24:56.820
why the Commonwealth doesn't have to

501
00:24:56.820 --> 00:25:01.020
at least try to activate that avenue of appeal,

502
00:25:01.020 --> 00:25:02.643
which you call a faux appeal.

503
00:25:04.890 --> 00:25:07.380
And if it becomes not a real appeal,

504
00:25:07.380 --> 00:25:10.950
then maybe you can go seek an indictment, or retry again,

505
00:25:10.950 --> 00:25:12.930
but why don't you have to at least try

506
00:25:12.930 --> 00:25:14.410
that appellate process

507
00:25:15.426 --> 00:25:20.426
if the rationale for allowing option B to be triggered

508
00:25:20.678 --> 00:25:24.213
when option A doesn't work is the lack of an appeal.

509
00:25:26.520 --> 00:25:29.850
<v ->Again, I mean, I don't want to not answer your question,</v>

510
00:25:29.850 --> 00:25:32.100
but again, I would say it's not really an appeal.

511
00:25:32.100 --> 00:25:33.779
That's my answer to that.

512
00:25:33.779 --> 00:25:36.390
<v ->[Justice Wendlandt] So you don't have to even try it.</v>

513
00:25:36.390 --> 00:25:37.290
<v ->You don't have to, no,</v>

514
00:25:37.290 --> 00:25:38.760
there's nothing that says that we have to.

515
00:25:38.760 --> 00:25:41.400
It's not a statutorily created process.

516
00:25:41.400 --> 00:25:43.980
It's similar, I mean in the grand jury context,

517
00:25:43.980 --> 00:25:47.520
the rationale for allowing us to present the same case

518
00:25:47.520 --> 00:25:49.450
to a second grand jury is

519
00:25:50.820 --> 00:25:54.480
there's no statute that says we can't take that approach.

520
00:25:54.480 --> 00:25:57.390
And at least in this case-
<v ->It's not because</v>

521
00:25:57.390 --> 00:26:01.830
you can't appeal the failure of the grand jury to indict?

522
00:26:01.830 --> 00:26:05.550
<v ->It's because the legislature hasn't created a limitation.</v>

523
00:26:05.550 --> 00:26:07.980
And at least on the facts of that McCravy case,

524
00:26:07.980 --> 00:26:10.740
the court declined to create a limitation,

525
00:26:10.740 --> 00:26:15.690
at least in the situation where it's only two presentations.

526
00:26:15.690 --> 00:26:18.540
And here, we've only done two presentations,

527
00:26:18.540 --> 00:26:22.299
or sorry, the police department did two presentations.

528
00:26:22.299 --> 00:26:23.670
<v ->I have a question about that.</v>

529
00:26:23.670 --> 00:26:25.470
I mean, are you really suggesting

530
00:26:25.470 --> 00:26:28.670
that the police didn't cooperate with the ADA

531
00:26:28.670 --> 00:26:31.290
in seeking this application and the decision

532
00:26:31.290 --> 00:26:33.453
on whether or not to appeal the first one?

533
00:26:34.560 --> 00:26:36.720
'Cause it seems like the record was pretty clear

534
00:26:36.720 --> 00:26:40.200
that Officer Vet, Vight?
<v ->I believe that's right.</v>

535
00:26:40.200 --> 00:26:42.780
<v ->Was cooperating with the ADA?</v>

536
00:26:42.780 --> 00:26:45.210
Got bad advice, maybe, from the first ADA

537
00:26:45.210 --> 00:26:49.170
and then reconvened with the second ADA and got more advice?

538
00:26:49.170 --> 00:26:50.370
<v Attorney Lynch>So...</v>

539
00:26:53.430 --> 00:26:54.750
<v ->I mean this wasn't an application</v>

540
00:26:54.750 --> 00:26:57.930
by the officer individually, it was in his official capacity

541
00:26:57.930 --> 00:27:00.150
in cooperation with the ADA, right?

542
00:27:00.150 --> 00:27:02.250
<v ->I don't know if the record is that clear</v>

543
00:27:02.250 --> 00:27:04.256
as to what the ADA's role was

544
00:27:04.256 --> 00:27:09.000
when the initial complaint was applied for.

545
00:27:09.000 --> 00:27:11.040
I don't know if the record is that clear,

546
00:27:11.040 --> 00:27:14.160
but as the judge said, as the lower court judge,

547
00:27:14.160 --> 00:27:15.570
the experienced district court judge says,

548
00:27:15.570 --> 00:27:17.730
as a practical matter, the district attorney

549
00:27:17.730 --> 00:27:21.300
doesn't usually actually appear at the show cause hearings.

550
00:27:21.300 --> 00:27:23.130
And that's one of the factors to consider

551
00:27:23.130 --> 00:27:26.130
in whether there's mutuality of parties,

552
00:27:26.130 --> 00:27:29.670
which is another necessary element of collateral estoppel.

553
00:27:29.670 --> 00:27:34.170
<v ->Do you think that there's a problem</v>

554
00:27:34.170 --> 00:27:36.360
with the defendant's collateral estoppel case

555
00:27:36.360 --> 00:27:38.490
because this is really a legal issue

556
00:27:38.490 --> 00:27:40.170
as opposed to a factual issue

557
00:27:40.170 --> 00:27:41.870
that's been determined by anybody?

558
00:27:45.390 --> 00:27:47.400
whether that this particular crime

559
00:27:47.400 --> 00:27:49.803
requires the motor vehicle or not?

560
00:27:53.100 --> 00:27:57.247
<v ->I'm not sure the answer to your question, respectfully.</v>

561
00:27:57.247 --> 00:27:59.247
<v ->[Justice Wendlandt] Okay, that's fair.</v>

562
00:28:00.780 --> 00:28:04.244
<v ->But as a matter of due process,</v>

563
00:28:04.244 --> 00:28:07.623
the clerk magistrate obviously got it wrong in this case.

564
00:28:08.520 --> 00:28:11.580
The magistrate said you need a motor vehicle,

565
00:28:11.580 --> 00:28:12.900
you need to be in a motor vehicle,

566
00:28:12.900 --> 00:28:13.920
basically, to commit this crime.

567
00:28:13.920 --> 00:28:17.490
The plain text seems to say if you're carrying a firearm

568
00:28:17.490 --> 00:28:18.750
while intoxicated, sorry,

569
00:28:18.750 --> 00:28:20.580
a loaded firearm while intoxicated,

570
00:28:20.580 --> 00:28:23.400
or you have it under your control in a motor vehicle,

571
00:28:23.400 --> 00:28:25.380
it's an either or, and in this case,

572
00:28:25.380 --> 00:28:27.930
the complaint application shows the defendant is intoxicated

573
00:28:27.930 --> 00:28:29.970
while having a gun on his person.

574
00:28:29.970 --> 00:28:34.020
So to the extent that there's a due process concern

575
00:28:34.020 --> 00:28:36.660
here in the abstract,

576
00:28:36.660 --> 00:28:39.330
I think it's significantly lessened in this case,

577
00:28:39.330 --> 00:28:43.290
given the nature of the magistrate's first denial,

578
00:28:43.290 --> 00:28:45.090
because the first magistrate

579
00:28:45.090 --> 00:28:46.830
just didn't understand the statute.

580
00:28:46.830 --> 00:28:49.020
It's not as if she discredited the police officers

581
00:28:49.020 --> 00:28:49.853
at the first hearing.

582
00:28:49.853 --> 00:28:52.650
She didn't make a negative credibility call against them,

583
00:28:52.650 --> 00:28:55.140
which I suppose, theoretically, is a possible way

584
00:28:55.140 --> 00:28:57.210
for her to have denied the complaint.

585
00:28:57.210 --> 00:29:00.150
But it seems as though it's a legal error

586
00:29:00.150 --> 00:29:02.040
that was the basis for her denial.

587
00:29:02.040 --> 00:29:05.760
And on a level of due process, I would say,

588
00:29:05.760 --> 00:29:08.190
where the first decision was clearly wrong,

589
00:29:08.190 --> 00:29:11.583
there's just no basis to say we can't get a complaint now.

590
00:29:13.260 --> 00:29:16.380
<v ->Well, you're speculating, right,</v>

591
00:29:16.380 --> 00:29:18.120
when you say that the clerk magistrate

592
00:29:18.120 --> 00:29:20.340
didn't discredit the police officers, correct?

593
00:29:20.340 --> 00:29:22.770
<v ->Well, I would-</v>
<v ->Because you know, the clerk-</v>

594
00:29:22.770 --> 00:29:24.930
<v ->Inference respectfully.</v>
<v ->You're drawing an inference,</v>

595
00:29:24.930 --> 00:29:26.850
but the clerk magistrate could have

596
00:29:26.850 --> 00:29:28.770
listened to the police officers,

597
00:29:28.770 --> 00:29:30.533
or police officer, I think it was singular,

598
00:29:30.533 --> 00:29:34.140
and thought to herself, "I don't believe this,"

599
00:29:34.140 --> 00:29:36.547
and then just written down, you know, said like,

600
00:29:36.547 --> 00:29:39.030
"You haven't met the requirements of the statute,"

601
00:29:39.030 --> 00:29:41.040
just to be polite, or something.

602
00:29:41.040 --> 00:29:44.340
We'd have no idea what, we don't have a written,

603
00:29:44.340 --> 00:29:45.870
we don't know, correct?

604
00:29:45.870 --> 00:29:47.250
Like the notation on the docket

605
00:29:47.250 --> 00:29:50.010
is not a written decision, is it, or is it?

606
00:29:50.010 --> 00:29:52.080
<v ->Well, that's the closest thing we have</v>

607
00:29:52.080 --> 00:29:54.240
to a decision on the merits in this case.

608
00:29:54.240 --> 00:29:55.770
And the only thing we have that go on

609
00:29:55.770 --> 00:29:58.380
is her misinterpretation of the statute.

610
00:29:58.380 --> 00:30:01.110
But all of what you just said would also tend to suggest

611
00:30:01.110 --> 00:30:03.060
is not really a fully reasoned decision,

612
00:30:03.060 --> 00:30:04.950
which would also weigh against

613
00:30:04.950 --> 00:30:06.690
it having collateral estoppel effect,

614
00:30:06.690 --> 00:30:10.680
not fully reasoned decision, which I would say

615
00:30:10.680 --> 00:30:14.773
robs it of any finality value that it might have.

616
00:30:14.773 --> 00:30:15.750
<v ->[Justice Wendlandt] What prong</v>

617
00:30:15.750 --> 00:30:17.433
of collateral estoppel is that?

618
00:30:18.390 --> 00:30:22.380
<v ->If you get a 25B determination by a judge,</v>

619
00:30:22.380 --> 00:30:25.410
they make the wrong call and not fully reasoned,

620
00:30:25.410 --> 00:30:27.270
you still have a problem, right?

621
00:30:27.270 --> 00:30:28.830
<v Attorney Lynch>Well that's a double jeopardy problem.</v>

622
00:30:28.830 --> 00:30:29.663
<v ->Right.</v>
<v ->We're not,</v>

623
00:30:29.663 --> 00:30:31.560
the double jeopardy in this case-

624
00:30:31.560 --> 00:30:33.840
<v ->Your criteria of fully reasoned.</v>

625
00:30:33.840 --> 00:30:34.740
<v ->Right, but the Commonwealth</v>

626
00:30:34.740 --> 00:30:36.510
also can't do anything about that,

627
00:30:36.510 --> 00:30:39.000
and we have no right of appeal from that decision,

628
00:30:39.000 --> 00:30:40.560
and we're just out because of double jeopardy,

629
00:30:40.560 --> 00:30:43.380
but double jeopardy's different from collateral estoppel.

630
00:30:43.380 --> 00:30:45.033
<v ->Right. I get that.</v>
<v ->Right.</v>

631
00:30:45.960 --> 00:30:48.260
This is not a double jeopardy case, obviously.

632
00:30:50.040 --> 00:30:53.010
So at least where, to date,

633
00:30:53.010 --> 00:30:55.230
the Commonwealth can present the same case

634
00:30:55.230 --> 00:30:58.443
to two different grand juries, and that's still good law,

635
00:30:59.550 --> 00:31:01.200
and at least on this fact pattern

636
00:31:01.200 --> 00:31:03.630
where the magistrate denied the complaint application

637
00:31:03.630 --> 00:31:05.400
because she didn't understand the statute,

638
00:31:05.400 --> 00:31:07.497
there's no due process issue in this case.

639
00:31:07.497 --> 00:31:09.630
And I don't think that the court needs to go any further

640
00:31:09.630 --> 00:31:11.460
than the facts of this case.

641
00:31:11.460 --> 00:31:12.690
<v ->[Justice Wendlandt] Have you looked for any records</v>

642
00:31:12.690 --> 00:31:15.660
from that first clerk magistrate's decision?

643
00:31:15.660 --> 00:31:17.430
<v ->I have not, and it's been represented</v>

644
00:31:17.430 --> 00:31:18.960
that they don't exist anymore.

645
00:31:18.960 --> 00:31:21.810
<v ->Is that because of the one year destruction deadline?</v>

646
00:31:21.810 --> 00:31:24.663
<v ->I infer that that's the case, but I honestly don't-</v>

647
00:31:24.663 --> 00:31:27.090
<v ->[Justice Wendlandt] What do we do about that?</v>

648
00:31:27.090 --> 00:31:29.810
<v ->The fact that we don't have a record from that...</v>

649
00:31:32.760 --> 00:31:33.593
<v ->How does that weigh</v>

650
00:31:33.593 --> 00:31:35.890
in the collateral estoppel analysis, if at all?

651
00:31:37.050 --> 00:31:40.680
<v ->I don't think it does because, I mean,</v>

652
00:31:40.680 --> 00:31:43.801
the district court is following a statutory procedure

653
00:31:43.801 --> 00:31:48.510
for record retention.

654
00:31:48.510 --> 00:31:49.980
I don't think that that,

655
00:31:49.980 --> 00:31:51.810
at least where the statute of limitations

656
00:31:51.810 --> 00:31:53.760
for this offense is six years,

657
00:31:53.760 --> 00:31:56.310
I don't see why an interaction

658
00:31:56.310 --> 00:31:58.440
between that record retention statute

659
00:31:58.440 --> 00:32:02.400
and the statute of limitation does anything.

660
00:32:02.400 --> 00:32:03.720
We're clearly-
<v ->Can you address</v>

661
00:32:03.720 --> 00:32:06.030
counsel's argument that the statute of limitations

662
00:32:06.030 --> 00:32:10.480
protects the interest in when prosecution can be commenced

663
00:32:10.480 --> 00:32:15.480
as opposed to any sort of vested finality interest

664
00:32:16.740 --> 00:32:19.240
that the defendant may have in the first decision?

665
00:32:22.050 --> 00:32:24.300
<v ->Well, given that the legislature has said</v>

666
00:32:24.300 --> 00:32:27.150
that the general statute of limitations is six years,

667
00:32:27.150 --> 00:32:30.480
I would say that the defendant's reliance on a one year,

668
00:32:30.480 --> 00:32:32.430
essentially statute of limitations, is misplaced.

669
00:32:32.430 --> 00:32:34.500
The legislature has made a policy judgment

670
00:32:34.500 --> 00:32:37.620
that the Commonwealth gets to start a criminal prosecution

671
00:32:37.620 --> 00:32:39.360
six years after the incident, so-

672
00:32:39.360 --> 00:32:41.340
<v ->But what do we do with the fact that the Commonwealth</v>

673
00:32:41.340 --> 00:32:45.802
tried to start within the six years?

674
00:32:45.802 --> 00:32:49.230
How many at bats (laughs) does the Commonwealth get?

675
00:32:49.230 --> 00:32:51.090
<v ->I don't think you need to go further than saying</v>

676
00:32:51.090 --> 00:32:52.590
we get at least two,

677
00:32:52.590 --> 00:32:55.800
which is what the court also did in McCravy.

678
00:32:55.800 --> 00:32:58.650
<v ->The delay in this case, when we started talking</v>

679
00:32:58.650 --> 00:33:01.860
about how the government hasn't covered itself in glory,

680
00:33:01.860 --> 00:33:04.710
at the very end of council's argument,

681
00:33:04.710 --> 00:33:09.240
she mentioned dismissal under Rule 36, correct?

682
00:33:09.240 --> 00:33:10.980
The last part of Rule 36 for delay.

683
00:33:10.980 --> 00:33:13.050
<v ->Yes, she talked about that.</v>
<v ->Right.</v>

684
00:33:13.050 --> 00:33:17.117
So that would be a means to vindicate

685
00:33:17.117 --> 00:33:20.100
the defendant's interest in delay here, right?

686
00:33:20.100 --> 00:33:22.260
Or punish the Commonwealth for unreasonable delay?

687
00:33:22.260 --> 00:33:24.750
<v Attorney Lynch>Of rules, well, there's a constitutional-</v>

688
00:33:24.750 --> 00:33:26.100
<v ->There's a dismissal.</v>

689
00:33:26.100 --> 00:33:29.430
<v ->Well, I don't think Rule 30,</v>

690
00:33:29.430 --> 00:33:32.010
are you talking about non prejudice-based rule 36?

691
00:33:32.010 --> 00:33:32.843
<v ->Right.</v>
<v ->Well,</v>

692
00:33:32.843 --> 00:33:35.550
there's never a return date, so-

693
00:33:35.550 --> 00:33:37.890
<v ->Well there's timeliness under rule 36</v>

694
00:33:37.890 --> 00:33:41.040
of bringing charges when you know the charges, correct?

695
00:33:41.040 --> 00:33:42.290
<v ->I believe you're right.</v>

696
00:33:44.040 --> 00:33:45.750
But-
<v ->Let's assume I am.</v>

697
00:33:45.750 --> 00:33:47.430
<v ->Sure.</v>
<v ->All right.</v>

698
00:33:47.430 --> 00:33:50.308
That would be a way to vindicate the defendant's interest

699
00:33:50.308 --> 00:33:54.390
in this unreasonable delay, correct?

700
00:33:54.390 --> 00:33:55.590
<v ->It's possible, yes,</v>

701
00:33:55.590 --> 00:33:57.940
but that's not the issue that's here right now.

702
00:33:59.040 --> 00:34:00.240
Unless there's any further questions,

703
00:34:00.240 --> 00:34:01.950
I'd ask the petition be denied.

704
00:34:01.950 --> 00:34:03.000
<v ->Okay.</v>
<v ->Thank you.</v>