In the Matter of a Juvenile ( 2020 )

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SJC-12860
IN THE MATTER OF A JUVENILE.
Suffolk. March 3, 2020. - October 1, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.1
Juvenile Court. Incompetent Person. Practice, Criminal,
Juvenile delinquency proceeding, Defendant's competency,
Transfer hearing, Stay of proceedings, Dismissal. Due
Process of Law, Juvenile delinquency proceeding, Competency
to stand trial.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on September 3, 2019.
The case was reported by Kafker, J.
Robert F. Hennessy for the defendant.
Tara L. Johnston, Assistant District Attorney, for the
Commonwealth.
Sarah Spofford, Committee for Public Counsel Services, for
youth advocacy division of the Committee for Public Counsel
Services & others, amici curiae, submitted a brief.
1 Chief Justice Gants participated in the deliberation on
this case and authored this opinion prior to his death.
2
GANTS, C.J. The issue in this case is whether due process
permits a Juvenile Court judge to conduct a transfer hearing
pursuant to G. L. c. 119, § 72A, where the defendant, now an
adult, is incompetent to stand trial for a crime allegedly
committed as a juvenile. We conclude that it does not and that
a transfer hearing may be conducted only if and when the
defendant becomes competent to stand trial. We further conclude
that if the defendant indefinitely continues to be incompetent
to stand trial, due process requires that the charges be
dismissed at the time the defendant would have become eligible
for parole if, after the issuance of a criminal complaint, he
were convicted of the most serious crime charged and received
the maximum sentence.2
Background. 1. Statutory background. General Laws
c. 119, § 72A, establishes the procedure for prosecuting a
defendant who allegedly committed a crime as a juvenile but was
apprehended after his or her nineteenth birthday. The statute
provides in relevant part:
"If a person commits an offense or violation prior to his
eighteenth birthday, and is not apprehended until after his
nineteenth birthday, the court, after a hearing, shall
determine whether there is probable cause to believe that
said person committed the offense charged, and shall, in
its discretion, either order that the person be discharged,
2 We acknowledge the amicus brief submitted by the Committee
for Public Counsel Services, Citizens for Juvenile Justice, the
Mental Health Legal Advisors Committee, and the Massachusetts
Association of Criminal Defense Lawyers.
3
if satisfied that such discharge is consistent with the
protection of the public; or, if the court is of the
opinion that the interests of the public require that such
person be tried for such offense or violation instead of
being discharged, the court shall dismiss the delinquency
complaint and cause a criminal complaint to be issued.
. . . Said hearing shall be held prior to, and separate
from, any trial on the merits of the charges alleged."
"[T]he purpose of § 72A is, in part, to give the Juvenile Court
jurisdiction over cases where a juvenile offender is not
apprehended until after his [nineteenth] birthday, and if public
interest requires, transfer the case to the Superior Court,"
where the defendant may be prosecuted for criminal acts that he
or she committed as a juvenile. See Commonwealth v. Nanny, 462
Mass. 798, 804 (2012).
During a § 72A transfer hearing, a Juvenile Court judge
must make two determinations. The first is whether there is
probable cause to believe that the defendant committed the
charged offense. G. L. c. 119, § 72A. If the judge concludes
that there is probable cause, the second determination is
whether the defendant should be tried as an adult on the
criminal charge or be discharged, thereby ending the
prosecution. Id. "[I]f the court is of the opinion that the
interests of the public require that such person be tried for
such offense or violation," the judge shall dismiss the juvenile
complaint and transfer the defendant to the jurisdiction of the
District Court, the Boston Municipal Court, or the Superior
4
Court. Id. See Nanny, 462 Mass. at 799 (if Juvenile Court
judge transfers case, it "then proceeds in accordance with the
ordinary course of criminal proceedings"). If the judge
concludes that "discharge is consistent with the protection of
the public," the judge shall discharge the defendant. G. L.
c. 119, § 72A. The judge's decision is entirely discretionary,
requiring "consideration of the specific crime and the
particular defendant." J.H. v. Commonwealth, 479 Mass. 285, 290
(2018). See Commonwealth v. Davis, 56 Mass. App. Ct. 410, 415
(2002) (there are no "specific evidentiary considerations to
guide the ultimate decision" in § 72A transfer hearing).
2. Facts and procedural background. In January 2018, the
Seekonk police department received a referral from the
Department of Children and Families regarding an alleged series
of sexual assaults. The complainant claimed that the defendant
had sexually assaulted her on multiple occasions between August
2009 and October 2011, when the two lived together in a foster
home. At the time of these alleged assaults, the defendant was
a juvenile, thirteen to fifteen years old; the complainant was
ten to eleven years old. Due to the delay in disclosure by the
complainant, the defendant was a twenty-one year old adult when
the delinquency complaint was brought.
On March 5, 2018, the defendant was arrested on a warrant;
arraigned in the Juvenile Court on charges of indecent assault
5
and battery on a child under fourteen, G. L. c. 265, § 13B, and
indecent assault and battery on a mentally disabled person,
G. L. c. 265, § 13F; and released on personal recognizance, with
an order to stay away from the alleged victim. At the time of
his arrest, the defendant was living at a short-term residential
facility operated by the Department of Mental Health. Based on
concerns about the defendant's competency to stand trial, the
Juvenile Court judge ordered an outpatient evaluation pursuant
to G. L. c. 123, § 15 (a).
The first evaluation, completed by a forensic psychologist
retained by defense counsel, found that the defendant
"suffer[ed] from a substantial disorder of mood, thought and
perception that grossly impair[ed] his judgment, behavior, and
capacity to recognize reality." The forensic psychologist also
noted that the defendant possessed "a rudimentary understanding
of some aspects of his case" but demonstrated "substantial
impairment in his rational understanding of the legal
proceedings and his ability to assist counsel in his defense,
including making reasoned decisions about his case."
Ultimately, the forensic psychologist concluded that the
defendant was not competent to stand trial.
The second evaluation was conducted by a Juvenile Court
clinician, who also concluded that the defendant was not
competent to stand trial. Although the clinician determined
6
that the defendant had "sufficient ability to rationally consult
with defense counsel," she noted her concerns that he would not
be able to withstand the stress of trial given his "historic
difficulties with remaining calm and present for brief
hearings."
Following these evaluations, the Juvenile Court judge
declared the defendant legally incompetent to stand trial. The
Commonwealth then requested a § 72A transfer hearing. The
defendant moved to stay the hearing, and the Juvenile Court
judge denied the motion without a hearing. The defendant then
petitioned a single justice of this court for extraordinary
relief pursuant to G. L. c. 211, § 3. The single justice
reserved and reported the matter to the full court.
Discussion. 1. Due process rights of an incompetent
defendant. "Due process under both the Fourteenth Amendment to
the United States Constitution and art. 12 of the Massachusetts
Declaration of Rights prohibits the prosecution from proceeding
to trial against a criminal defendant or juvenile who has been
found incompetent to stand trial." Abbott A. v. Commonwealth,
458 Mass. 24, 27 (2010), citing Drope v. Missouri, 420 U.S. 162,
171 (1975), and Commonwealth v. Robidoux, 450 Mass. 144, 152
(2007). See White v. Estelle, 459 U.S. 1118, 1121 (1983)
(Marshall, J., dissenting) ("Due process forbids a State to try
or convict a defendant who is incompetent to stand trial"). A
7
person accused of a crime is incompetent to stand trial where he
"lacks the capacity to understand the nature and object of the
proceedings against him, to consult with counsel, and to assist
in preparing his defense." Commonwealth v. Prater, 420 Mass.
569, 573 (1995), quoting Drope, supra. See Abbott A., supra,
quoting Commonwealth v. L'Abbe, 421 Mass. 262, 266 (1995).
This prohibition helps to protect the accuracy and
reliability of criminal and delinquency proceedings by ensuring
that criminal defendants and juveniles have the ability and
opportunity to communicate information to others that may reveal
their innocence or lessen their degree of guilt. See Drope, 420
U.S. at 171. See also 4 W. Blackstone, Commentaries *24-25. It
also safeguards other constitutional rights, "including the
right to effective assistance of counsel, the rights to summon,
to confront, and to cross-examine witnesses, and the right to
testify on one's own behalf or to remain silent without penalty
for doing so" (citation omitted). Cooper v. Oklahoma, 517 U.S.
348, 354 (1996). Essential to the competency determination,
therefore, is whether the defendant or juvenile has "sufficient
present ability to consult with his lawyer with a reasonable
degree of rational understanding." Commonwealth v. Vailes, 360
Mass. 522, 524 (1971), quoting Dusky v. United States, 362 U.S.
402, 402 (1960).
8
The trial is the pivotal truth-seeking event, so the
capacity of the defendant or juvenile to communicate and assist
counsel at that stage in the proceedings is a cornerstone of due
process. See Drope, 420 U.S. at 171-172 ("the prohibition
[against trying an incompetent defendant] is fundamental to an
adversary system of justice"). Similarly, "accepting a plea
bargain or waiving one's right to a hearing" are "'strategically
important' decisions" that require the defendant's comprehension
and ability to communicate with counsel. Abbott A., 458 Mass.
at 33, quoting Commonwealth v. Torres, 441 Mass. 499, 506 n.10
(2004).
But due process does not necessarily require the cessation
of all pretrial hearings when the accused is incompetent to
stand trial. See Abbott A., supra at 27. To determine whether
due process permits a pretrial hearing to proceed where a
defendant or juvenile has been found incompetent to stand trial,
we apply a balancing test, set forth in Mathews v. Eldridge, 424
U.S. 319, 335 (1976), which considers and weighs three factors:
"First, the private interest that will be affected by the
official action; second, the risk of erroneous deprivation
of such interest through the procedures used, and the
probable value, if any, of additional or substitute
procedural safeguards; and finally, the Government's
interest, including the function involved and the fiscal
and administrative burdens that the additional or
substitute procedural requirement would entail."
9
Torres, 441 Mass. at 502-503, quoting Spence v. Gormley, 387
Mass. 258, 274 (1982).
Under this framework, we have previously concluded that,
notwithstanding a defendant's incompetency to stand trial,
certain pretrial hearings may proceed without violating due
process. See, e.g., Abbott A., 458 Mass. at 32 (incompetent
defendant may be subjected to dangerousness hearing, pursuant to
G. L. c. 276, § 58A); Commonwealth v. Nieves, 446 Mass. 583, 589
(2006) (incompetent defendant may be subjected to hearing and
commitment as sexually dangerous person [SDP], pursuant to G. L.
c. 123A, § 14); Torres, 441 Mass. at 499 (incompetent defendant
may be subjected to bail hearing, pursuant to G. L. c. 276,
§ 57).
With § 58A dangerousness hearings and bail hearings, we
recognized that the defendant's or juvenile's private interest
at stake at the hearing -- "freedom from restraint pending
trial" -- was "significant." See Abbott A., 458 Mass. at 28, 30
(dangerousness); Torres, 441 Mass. at 503 (bail). Similarly, in
proceedings under the SDP civil commitment statute, G. L.
c. 123A, §§ 12-14, we recognized that "[t]he defendant's
interest is weighty. If committed, his loss of liberty would be
total." Nieves, 446 Mass. at 590. Yet, in each of these cases,
the alternative of staying the proceedings until the defendant
or juvenile regained competency would have thwarted the strong
10
governmental interest in assuring the defendant's appearance for
trial or in protecting the public from the danger posed by the
defendant.
In Torres, 441 Mass. at 499, cash bail of $5,000 was set at
arraignment, which the defendant posted, and he was thereafter
released. After the defendant was found incompetent, the
Commonwealth unsuccessfully sought his civil commitment and then
sought review of the defendant's initial bail order, contending
that he had become a flight risk now that he was incompetent to
stand trial but could not be civilly committed. Id. at 500. If
the defendant's incompetency to stand trial had precluded a bail
hearing, the result would have been that the initial bail order
would have remained in effect, without consideration of whether
the defendant's incompetency meant that he was now a flight
risk. We declared that, "[a]ssuming that the Commonwealth could
demonstrate a strong risk of flight, it has a substantial
interest in ensuring that whatever bail (or other condition of
release) is set be adequate to ensure [the defendant's]
appearance in the event -- however probable -- of a trial." Id.
at 503 n.5.
In Abbott A., 458 Mass. at 25, the Commonwealth sought an
order of pretrial detention based on dangerousness after the
juvenile was charged with severely beating a man sleeping in a
city park. If the juvenile's incompetency had precluded a
11
dangerousness hearing, the Commonwealth would have been limited
to a bail hearing, where the focus would be only on risk of
flight, not dangerousness. Id. at 31 n.9. We declared, "A
dangerous defendant's or juvenile's incompetency makes him no
less of a threat to the safety of others than a defendant or
juvenile who is dangerous but competent." Id. at 31.
In Nieves, 446 Mass. at 587-588, the Commonwealth sought a
civil commitment as an SDP of a sex offender who had been
released from prison after being convicted of assault with
intent to rape. A judge found probable cause to proceed to
trial, which meant that the defendant remained in custody
awaiting trial, but denied the Commonwealth's motion to proceed
to trial because the defendant was not competent to stand trial.
Id. at 588-589. We concluded that the defendant's liberty
interest "must, with appropriate safeguards, yield to the
Commonwealth's paramount interest in protecting its citizens"
and saw "no reason why the public interest in committing
sexually dangerous persons to the care of the treatment center
must be thwarted by the fact that one who is sexually dangerous
also happens to be incompetent." Id. at 590-591.
As to the risk of erroneous deprivation of liberty
resulting from the defendant's or juvenile's incompetency, we
distinguished between two types of error: factual and
strategic. We concluded that "the risk of factual error at a
12
bail hearing" -- a miscalculation in the amount of bail that
would reasonably assure the defendant's presence at trial --
"arising from a defendant's inability fully to assist his
counsel [was] low" given the "familiar, straightforward, and
relatively simple" nature of the inquiry. Abbott A., 458 Mass.
at 29. The risk of factual error at a § 58A dangerousness
hearing was greater, we held, because those are evidentiary
hearings "where the focus of the inquiry is the defendant's or
juvenile's dangerousness, which generally rests in large part on
whether there is persuasive evidence that the defendant or
juvenile has committed the violent crime charged, obstructed
justice, or threatened a witness." Id. at 31. This increased
risk of factual error was not so great as to violate due
process, however, given the many procedural protections afforded
to defendants. Id. at 32. We similarly held that an
individual's rights "to the assistance of counsel, to present
evidence and witnesses, and to cross-examine adverse witnesses"
were sufficient protection from factual error in proceedings to
civilly commit an incompetent individual based on sexual
dangerousness. Id. See Commonwealth v. Burgess, 450 Mass. 366,
375 (2008); Nieves, 446 Mass. at 592.
With regard to strategic error, we explained that this risk
"is greatest at trial, where the decision to proceed with trial
rather than plead guilty, perhaps in return for a prosecutor's
13
plea recommendation, may substantially affect the severity of a
defendant's sentence on conviction." Abbott A., 458 Mass. at
29. In contrast, the risk of strategic error in bail and § 58A
dangerousness hearings is low "because the defendant's or
juvenile's interests are clear (to obtain his release on
conditions and avoid a finding of dangerousness), the hearing
cannot be waived (because the Commonwealth bears the burden of
proving dangerousness by clear and convincing evidence), and the
defendant or juvenile almost never testifies." Id. at 33.
We now apply these same factors to determine whether due
process permits a § 72A transfer hearing to proceed while the
defendant is incompetent to stand trial.
2. Section 72A transfer hearings. The Commonwealth argues
that applying the Mathews analysis to § 72A transfer hearings
should yield the same conclusion as it did with bail hearings,
dangerousness hearings, and SDP civil commitment proceedings --
that the hearings may proceed consistent with due process. The
defendant contends that the factors compel the opposite
conclusion. We agree with the defendant.
A defendant's interest in a § 72A transfer hearing is
greater than in a bail or § 58A dangerousness proceeding, where
pretrial liberty alone is at stake. Because a Juvenile Court
judge at a § 72A hearing has broad discretion to determine
"whether the prosecution may proceed altogether," Nanny, 462
14
Mass. at 806, what is at stake is not only pretrial liberty but
also posttrial liberty. The potential enormity of the stakes at
a § 72A hearing is clearly apparent in this case. If the
Juvenile Court judge finds no probable cause or discharges the
defendant, the prosecution is over. If the Juvenile Court judge
finds probable cause and determines that the public interest
requires that a criminal complaint issue and that the case be
tried, the defendant faces the possibility that he will be found
guilty of the crimes charged, sentenced as an adult for offenses
that he committed as a juvenile, incarcerated in a State prison,
and required to register as a sex offender. See, e.g., J.H.,
479 Mass. at 292 (if transferred via § 72A, "consequences of a
statutory rape conviction would not be a finding of delinquency
but the possibility of a life felony"). In fact, if the
defendant were to be convicted of indecent assault and battery
on a mentally disabled person, in violation of G. L. c. 265,
§ 13F, he would be subject to a mandatory minimum sentence of
five years in State prison.
While the defendant's liberty interest in a § 72A transfer
hearing is greater than in a bail or § 58A dangerousness
proceeding, the governmental interest in conducting such a
hearing where the defendant is incompetent is less, in part
because the Juvenile Court may conduct a bail or dangerousness
hearing prior to the § 72A transfer hearing. Therefore, a
15
defendant likely to flee may be held on bail, and a violent
defendant may be detained for dangerousness as he awaits the
§ 72A hearing for a "reasonable period of time necessary to
determine whether there is a substantial probability that he
will attain [competency] in the foreseeable future." Abbott A.,
458 Mass. at 37, quoting Jackson v. Indiana, 406 U.S. 715, 733,
738 (1972). And if an incompetent defendant is charged with a
"sexual offense" as defined in G. L. c. 123A, § 1, the
Commonwealth may, if appropriate, file a petition alleging that
the person is sexually dangerous "notwithstanding absence of a
conviction." Commonwealth v. Curran, 478 Mass. 630, 632 (2018),
citing G. L. c. 123A, §§ 12, 15. See Burgess, 450 Mass. at 374
("the State may indeed impair the liberty interests of a
defendant who is a sexually dangerous person, even when that
person may not understand what is occurring and cannot
communicate with counsel"). Given these options, the safety of
the public does not require that a § 72A hearing proceed when
the defendant is incompetent to stand trial.
Nor does the government interest in solving crimes and
bringing offenders to justice require that a § 72A hearing
proceed while a defendant is incompetent. Even if the § 72A
transfer hearing were to take place while the defendant was
incompetent, the Commonwealth would be unable to try the
defendant and bring the offender to justice until the defendant
16
became competent. See Prater, 420 Mass. at 573. There are, in
effect, two possible alternatives in these circumstances. The
first is that the § 72A transfer hearing is stayed, pending the
defendant's competency. The second is that the hearing
proceeds, notwithstanding the defendant's incompetency, at which
point the Commonwealth will be unable to proceed to trial.
Either way, the Commonwealth has no choice but to wait until the
defendant becomes competent to prosecute the defendant for his
alleged crimes.
Finally, because a Juvenile Court judge has so much
discretion in determining whether discharge is consistent with
the protection of the public, the risk of error is greater in a
§ 72A transfer hearing than in a bail or dangerousness hearing.
The decision whether to discharge or transfer requires
"consideration of the specific crime and the particular
defendant," and a "thoughtful presentation by defense counsel
directed at both issues is thus critical." J.H., 479 Mass. at
290. Defense counsel must place the defendant "into a
developmental context" that allows the court "to understand how,
if at all, the defendant's more mature development reduces the
risk of reoffense." Id., quoting J.D. Blitzman & K.J. King,
Hearings Pursuant to G. L. c. 119, § 72A: "Aging Out" of the
System, in 1 Massachusetts Juvenile Court Bench Book § 12, at
12–11 (Mass. Cont. Legal Educ. 3d ed. 2011 & Supp. 2014).
17
Because, as characterized by the amici, a transfer hearing
in many cases is "the whole ball game," and because the
determinative issue in some cases may not be whether the
defendant committed the offense but whether the defendant is
unlikely to recommit an offense, a defense attorney may consider
calling the defendant to testify at such a hearing, which would
rarely be the case at a bail or dangerousness hearing. An
incompetent defendant cannot meaningfully participate in the
strategic decision whether to testify. If the defendant were to
testify, defense counsel must be able to help prepare him for
direct and cross-examination, which cannot happen if the
defendant is incompetent.
Even where a defendant does not testify, he must be able to
assist defense counsel in mounting a "thoughtful presentation"
regarding whether discharge is appropriate. See Davis, 56 Mass.
App. Ct. at 416-417 (discharge denied in part because defense
"adduced no evidence bearing upon whether his discharge was
consistent with the protection of the public"). This might mean
providing defense counsel with information bearing on the
defendant's rehabilitation and evolving maturity in the years
since the offense, and identifying supporting evidence and
witnesses, something an incompetent defendant is unlikely to be
able to do.
18
Moreover, where a Juvenile Court judge at a § 72A hearing
must determine whether "discharge is consistent with the
protection of the public," that determination is more
appropriately made when the defendant has regained competency
and the case can proceed to trial if transferred. If the
determination were made when the defendant was incompetent, the
Juvenile Court judge would be unable to know when the defendant
could be tried in adult court if a complaint were to issue. In
making this critical discretionary decision, a judge properly
might consider the age of the defendant at the time of the
alleged offense (here, between thirteen and fifteen years of
age) and the age of the defendant when the case would be tried;
the latter would be unknowable if the defendant were incompetent
at the time of the § 72A hearing. Moreover, to the extent that
the defendant's rehabilitation and evolving maturity might bear
on that decision, those factors should be considered when the
defendant is competent and timely may be tried, not when the
defendant is incompetent and may be years away from trial.
Where the liberty interest at stake in a § 72A hearing is
so high, where the government's interest in proceeding with the
hearing despite the defendant's incompetency is so low, and
where the risk of factual and strategic error in determining
whether the case should be transferred or discharged when the
defendant is incompetent is so great, we conclude that due
19
process requires that § 72A hearings be stayed until such time
as a defendant becomes competent.
3. Dismissal of the delinquency complaint. Under G. L.
c. 123, § 16 (f), criminal charges must be dismissed against an
incompetent defendant on the date that he would be "eligible for
parole if he had been convicted of the most serious crime with
which he was charged in court and sentenced to the maximum
sentence he could have received, if so convicted." The court
also has the authority to dismiss a criminal charge against an
incompetent defendant prior to that date "in the interest of
justice." Id. We have previously noted that this statutory
provision does not apply to a juvenile charged as a delinquent
"because the juvenile cannot receive a criminal sentence and is
not eligible for parole." See Abbott A., 458 Mass. at 39 n.16.
However, the statutory provision does apply to an adult
defendant who is charged with crimes committed as a juvenile
because, if the case were transferred to adult court after a
§ 72A hearing, the defendant could receive a criminal sentence
and would be eligible for parole. In fact, a criminal sentence
is the only sentence that could be imposed in such
circumstances. Here, if the defendant were to become competent
to stand trial, and if the Juvenile Court judge were to decide
that a criminal complaint should issue, the defendant might be
sentenced to ten years in prison if convicted of the charge of
20
indecent assault and battery on a mentally disabled person, and
would be eligible for parole in five years. See G. L. c. 265,
§ 13F; G. L. c. 123, § 16 (f). Therefore, if the defendant were
to remain incompetent to stand trial, and the § 72A hearing
therefore could not be conducted, the charges against the
defendant would have to be dismissed upon the expiration of that
five-year period, unless the judge were to dismiss the charges
earlier in the interest of justice. See G. L. c. 123, § 16 (f).
Conclusion. The Juvenile Court judge's order denying the
defendant's motion to stay the § 72A hearing until the defendant
is competent to stand trial is reversed. The case is remanded
to the Juvenile Court for further proceedings consistent with
this opinion.
So ordered.