In the Matter of an Impounded Case

Opinion

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SJC-13678

IN THE MATTER OF AN IMPOUNDED CASE.

Suffolk. November 3, 2025. - May 6, 2026.

Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges, & Wolohojian, JJ.

Supreme Judicial Court, Superintendence of inferior courts. Due Process of Law, Substantive rights, Competency to stand trial, Pretrial detainees. Practice, Criminal, Competency to stand trial, Defendant's competency. Moot Question. Bail.

Civil action commenced in the Supreme Judicial Court for the county of Suffolk on August 22, 2024.

The case was heard by Dewar, J.

Ross E. Schreiber for the petitioner. Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.

GEORGES, J. The defendant1 appeals from the judgment of a

single justice of this court denying his petition for

1 Although the action was commenced in the county court by the petitioner, for convenience we refer to him as the "defendant." 2

extraordinary relief pursuant to G. L. c. 211, § 3. This case

requires us to consider the constitutional limits on the

pretrial detention of a defendant who has been found incompetent

to stand trial and, in particular, whether the framework

articulated in Abbott A. v. Commonwealth, 458 Mass. 24, 37-41

(2010), applies where detention results not from a determination

of dangerousness under G. L. c. 276, § 58A, but from the

defendant's inability to post cash bail. Because the

substantive due process principles underlying Abbott A. are not

confined to any single statutory mechanism of detention, we

conclude that its framework governs the constitutional inquiry

in this context. We affirm.

Background. 1. Trial court proceedings. Two Superior

Court cases are at issue. In the first, the Commonwealth

alleges that in May 2019 the defendant participated in a violent

home invasion during which he pointed a firearm at a victim's

head and struck other victims with the weapon. A grand jury

returned indictments charging the defendant with home invasion,

in violation of G. L. c. 265, § 18C; three counts of assault by

means of a dangerous weapon, in violation of G. L. c. 265, 3

§ 15B (b); and four counts of assault and battery by means of a

dangerous weapon, in violation of G. L. c. 265, § 15A (b).2

In the second Superior Court case, the Commonwealth alleges

that in December 2019 the defendant discharged a firearm

multiple times and that execution of a search warrant uncovered

a loaded, stolen firearm in a vehicle he used that was

registered to his mother. Those allegations resulted in

indictments charging two counts of carrying a firearm without a

license, in violation of G. L. c. 269, § 10 (a); two counts of

carrying a loaded firearm without a license, in violation of

G. L. c. 269, § 10 (n); one count of discharging a firearm

within 500 feet of a building, in violation of G. L. c. 269,

§ 12E; one count of possessing a large capacity firearm, in

violation of G. L. c. 269, § 10 (m); and two counts of

possessing ammunition without a firearm identification card, in

violation of G. L. c. 269, § 10 (h) (1).

In November 2020, in each Superior Court case, the parties

stipulated that the defendant was incompetent to stand trial and

unlikely to attain competency. A Superior Court judge endorsed

the stipulation and found the defendant was "currently

incompetent to stand trial."

2 We include information drawn from the electronic dockets. See Donald v. Commonwealth, 494 Mass. 1016, 1017 (2024), citing Mushwaalakbar v. Commonwealth, 487 Mass. 627, 631-632 (2021). 4

While those cases were pending, a criminal complaint issued

in the Dorchester Division of the Boston Municipal Court

Department charging the defendant with drug and firearm offenses

(BMC case). At arraignment, pursuant to G. L. c. 276, § 58, a

Boston Municipal Court judge revoked the defendant's bail in the

Superior Court matters for sixty days and set $30,000 cash bail

in the BMC case.3

On August 9, 2024, the day the revocation order expired, a

bail hearing was held in the Superior Court cases. The

defendant argued that, in light of the incompetency findings,

imposing cash bail that resulted in pretrial detention would

violate due process under Jackson v. Indiana, 406 U.S. 715, 738

(1972), and Abbott A., 458 Mass. at 37-41. The Commonwealth

sought $5,000 cash bail in each case notwithstanding the

incompetency findings. The prosecutor represented that the

Commonwealth intended to seek a new competency evaluation given

the passage of time and emphasized the seriousness of the

3 Pursuant to G. L. c. 276, § 58, seventh par., where a defendant "on release pending the adjudication of a prior charge" is subsequently charged with committing a new offense and probable cause is found that the offense was committed during the period of release, the court may, upon determining that continued release would "seriously endanger any person or the community" and that detention is necessary to reasonably assure safety, revoke bail on the prior charge and order the defendant held without bail for up to sixty days. The statute further requires that a defendant be expressly informed that bail may be revoked should he or she commit a new offense while on release. Id. 5

Superior Court charges and the allegations in the BMC case,

arguing that the defendant posed a flight risk.

The hearing judge imposed $5,000 cash bail in each Superior

Court case and rejected the defendant's due process argument,

stating that, if required to err, he would do so "on the side of

protecting the public." In setting bail, the judge relied on

"the seriousness of [the defendant]'s criminal record," "the

seriousness of the[] new charges" in the BMC case, and the

defendant's financial circumstances.4

At that time, the defendant remained in custody because he

had not posted bail in the BMC case.5 The BMC case was dismissed

on September 24, 2024, after which the defendant was no longer

held on the bail order in that case.

2. Single justice petition. On August 22, 2024, the

defendant petitioned for extraordinary relief pursuant to G. L.

c. 211, § 3, asking a single justice of this court to vacate the

bail orders in the two Superior Court cases and to order his

release from custody. As in the Superior Court, the defendant

4 If the defendant were to post bail, the hearing judge ordered conditions of release, including home confinement subject to limited exceptions and global positioning system monitoring. The defendant does not challenge those conditions.

5 On August 29, 2024, the cash bail in the BMC case was reduced from $30,000 to $15,000. 6

did not challenge the setting of cash bail itself, but rather

challenged the resulting pretrial detention.

Relying on Jackson, 406 U.S. at 738, and Abbott A., 458

Mass. at 37-41, the defendant argued that his continued

detention violated his substantive due process rights under art.

12 of the Massachusetts Declaration of Rights and the Fourteenth

Amendment to the United States Constitution. He relied on the

2020 incompetency findings and multiple competency evaluations

concluding that restoration of his competency was unlikely. In

support of his petition, the defendant submitted evidence of his

competency evaluation history, including reports from three such

evaluations.6

The first report, dated January 2020, summarized an

evaluation conducted by Dr. Carla Muñoz, a forensic

psychologist. Muñoz concluded that the defendant met "the

diagnostic criteria for Borderline Intellectual Functioning and

Cannabis Use Disorder." According to the report, those

conditions produced "genuine cognitive deficits" impairing his

6 These reports referenced earlier evaluations by other psychologists, including the following: a 2017 opinion that, because of significant learning disabilities, the defendant lacked "abilities relevant to competence to stand trial" and that restoration might not be possible even with "appropriate interventions"; a 2019 opinion that the defendant was "not competent to stand trial" and that "his deficits may be sufficiently severe that restoration to competency may not be possible"; and a 2019 opinion that the defendant had "cognitive deficits" that warranted further evaluation. 7

abilities related to competency to stand trial that were likely

to persist because the defendant was unlikely "to benefit

significantly from . . . remediation programs." Muñoz also

observed that the defendant's deficits "seem[ed] to be

exacerbated by poor effort and an exaggerated presentation,"

including "attempts to portray himself [as] more impaired [than]

he actually [was]."

The second report, prepared in August 2020 by Dr. Gregg

Belle, a forensic psychologist, likewise concluded that the

defendant had "longstanding cognitive deficits," exacerbated by

"chronic marijuana usage," that substantially affected "his

competency[-]related behaviors." Belle further opined that

those "cognitive limitations" would hinder efforts at competency

restoration.

The third report, authored by Dr. Anne Johnson in April

2022, arose from a competency evaluation she conducted in

connection with a separate criminal matter. In her report,

Johnson concluded that the defendant "lack[ed] both a factual

and rational understanding of the proceedings against him" and

that his competency was "unlikely to be restored."

On September 27, 2024, the single justice denied the

petition. The single justice concluded that the Superior Court

hearing judge did not abuse his discretion in setting bail and

that the defendant's detention to that point had not violated 8

his substantive due process rights. Applying the Abbott A.

framework, the single justice determined that the defendant had

not been held "more than the reasonable period of time necessary

to determine whether there [was] a substantial probability that

he [would] attain [competency] in the foreseeable future." See

Abbott A., 458 Mass. at 37, quoting Jackson 406 U.S. at 738. In

reaching that conclusion, the single justice relied on the

seriousness of the alleged offenses, extensive and recent

evidence suggesting the defendant posed a danger to the

community, the passage of time since the prior competency

evaluations -- which the single justice viewed as containing

some equivocal language -- and the duration of detention. The

defendant appeals.

Discussion. 1. Mootness. As previously mentioned, in the

Superior Court and before the single justice, the defendant did

not challenge the setting of cash bail itself, but rather the

resulting detention. The defendant acknowledges that on October

4, 2024, he posted the bails at issue and was released from

pretrial detention. The issue is therefore moot. See Lynn v.

Murrell, 489 Mass. 579, 582 (2022).

We nevertheless agree with the defendant that the issue is

capable of repetition yet evading review. Cf. Commonwealth v.

A.Z., 493 Mass. 427, 430 (2024); Newton-Wellesley Hosp. v.

Magrini, 451 Mass. 777, 782-783 (2008) (Magrini); Commonwealth 9

v. Cargill, 445 Mass. 329, 329–330 (2005). Although we are

generally reluctant to resolve moot constitutional questions, we

have done so where an issue of broad public importance has

generated ongoing uncertainty. See Commonwealth v. Padilla, 493

Mass. 1023, 1026 (2024). This appeal presents such an issue:

whether, and in what circumstances, the framework articulated in

Abbott A. applies to pretrial detention resulting from a

defendant's inability to post bail where competency is in

question. Cf. Magrini, supra at 782; Commonwealth v. McCulloch,

450 Mass. 483, 486 (2008). We therefore exercise our discretion

to reach the merits. See Padilla, supra; McCulloch, supra.

2. Substantive due process. "We review a single justice's

denial of a petition under G. L. c. 211, § 3, for clear error of

law or abuse of discretion," while also considering "the

propriety of the Superior Court judge's underlying bail order"

(citation omitted). Campbell v. Commonwealth, 494 Mass. 750,

752-753 (2024).

The defendant argues that, because he was previously found

incompetent and unlikely to attain competency, his detention

violated his right to substantive due process. "Substantive due

process prohibits government conduct that 'shocks the

conscience,' or interferes with 'rights implicit in the concept

of ordered liberty.'" Mushwaalakbar v. Commonwealth, 487 Mass.

627, 633 (2021), quoting Commonwealth v. G.F., 479 Mass. 180, 10

195 (2018). Where a fundamental liberty interest is burdened,

strict scrutiny applies, requiring the challenged restraint to

be narrowly tailored to serve a compelling governmental interest

and to be the least restrictive means of doing so. See Matter

of F.A., 494 Mass. 673, 677 (2024). The deprivation asserted

here -- physical restraint resulting from inability to post bail

-- implicates a core liberty interest in freedom from bodily

restraint pending trial. See G. L. c. 276, § 57; Querubin v.

Commonwealth, 440 Mass. 108, 111-112 (2003).

The requirements of due process "vary depending on the

context" (citation omitted). Sharris v. Commonwealth, 480 Mass.

586, 598 (2018). In this context, the parties correctly

identify Abbott A., 458 Mass. at 37-41, applying Jackson, 406

U.S. at 738, as supplying the governing framework for evaluating

the constitutionality of detaining an incompetent defendant

pending trial. See Makis M. v. Commonwealth, 494 Mass. 23, 39

(2024) (citing Jackson in context of substantive due process).

Although our decision in Abbott A. arose in the context of

detention pursuant to G. L. c. 276, § 58A, see Abbott A., 458

Mass. at 25-27, nothing in that decision suggested the framework

we articulated was confined to that statutory setting. Rather,

the analysis in Abbott A. was grounded in the broader

substantive due process principles governing the permissibility

of detaining an incompetent person. See id. at 37-41. 11

Those principles are not dependent on the procedural

mechanism through which detention is imposed. Where, as here,

an incompetent defendant challenges continued detention on

substantive due process grounds, the considerations identified

in Abbott A. provide an appropriate and instructive framework

reflecting this court's considered articulation of the factors

relevant to determining when pretrial detention becomes

constitutionally excessive.

To the extent there was uncertainty whether the Abbott A.

analysis applies outside the context of detention for

dangerousness under G. L. c. 276, § 58A, our precedent indicates

that it does. See Matter of a Juvenile, 485 Mass. 831, 839

(2020) (noting that potentially incompetent defendant "likely to

flee may be held on bail" subject to Abbott A. analysis);

Commonwealth v. Torres, 441 Mass. 499, 506 (2004) (explaining

that Jackson analysis becomes relevant when bail decision

results in prolonged detention). We now make explicit what

those decisions reflect: the Abbott A. framework governs the

due process inquiry where an incompetent defendant is detained

due to an inability to post cash bail.

Under Abbott A., 458 Mass. at 37-40, two related limits

apply. First, an incompetent defendant may not be held awaiting

trial longer than the reasonable period necessary to determine

whether there is a substantial probability that competency will 12

be attained in the foreseeable future.7 See id. at 37. Second,

due process independently prohibits detention for an

unreasonable period of time. See id. at 39. No bright-line

rule governs those inquiries; rather, courts assess the totality

of the circumstances, including the length of the detention, the

seriousness of the charges, the degree of dangerousness, the

likelihood and anticipated time frame of restoration, any

contribution by the defendant to prolonged incompetency, and any

resulting prejudice. Id. at 39-40.

Applying the Abbott A. framework here, we conclude that the

defendant's detention did not exceed the reasonable period

necessary to assess the likelihood of restoration and was not

otherwise unreasonable. See Abbott A., 458 Mass. at 37, 39-40.

See also Jackson, 406 U.S. at 738. The charges were serious,

including allegations that the defendant committed a violent

home invasion during which he pointed a firearm at a victim's

head and struck multiple people with the weapon. The home

7 Even where a defendant probably may soon attain competency, Abbott A. further requires continued confinement to be justified by demonstrable progress toward that goal. See Abbott A., 458 Mass. at 39, citing Jackson, 406 U.S. at 738. At the time of the detention at issue, there was no indication that the defendant was likely to attain competency. Nevertheless, because the Commonwealth represented that it would seek a new evaluation in light of the circumstances described below, and because the defendant had been held solely on the challenged bails for only three days as of the time of the single justice's decision, this requirement had not yet been applicable. 13

invasion charge alone carries a minimum sentence of twenty years

in State prison. See G. L. c. 265, § 18C. The defendant also

faced subsequent firearm-related charges.

Although the defendant previously had been found

incompetent, those findings were approximately four years old at

the time of the bail hearing, and the most recent evaluation was

more than two years old. Given that passage of time -- together

with evaluative observations that the defendant at times

exaggerated his deficits -- the earlier opinions had limited

probative value regarding future restoration to competency as of

the bail hearing. The Commonwealth also represented that it

intended to seek a new competency evaluation. Further, by the

time of the single justice's decision, the defendant had been

held solely on the challenged bail orders for only three days

after dismissal of the BMC case.8 Considering the totality of

the circumstances, the detention did not shock the conscience or

otherwise violate substantive due process, and the single

justice did not err or abuse her discretion in denying relief.

The defendant further argues that the hearing judge and the

single justice improperly considered dangerousness when setting

8 Until that point, the defendant also remained in custody on cash bail in the BMC case, originally set at $30,000 and reduced to $15,000 on August 29, 2024, which bail he does not challenge in this appeal. 14

bail under G. L. c. 276, § 57. See Brangan v. Commonwealth, 477

Mass. 691, 705, S.C., 478 Mass. 361 (2017) ("a judge may not

consider a defendant's alleged dangerousness in setting the

amount of bail"). Here, however, any reference to dangerousness

arose solely in the course of evaluating the defendant's

constitutional claim under Abbott A., which expressly identifies

dangerousness as a relevant factor in assessing the

reasonableness of detention for purposes of substantive due

process. See Abbott A., 458 Mass. at 39-40. Nothing in the

record supports that dangerousness was relied upon to determine

the amount of bail. There was no error.

Conclusion. The judgment of the single justice is

affirmed.

So ordered.