In the Matter of a Juvenile

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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.