SJC hears dispute over compelled psychiatric exam in Germaine Berry Perez resentencing

The Supreme Judicial Court heard arguments on whether the Commonwealth may compel a psychiatric examination of Germaine Berry during a post‑conviction Perez resentencing proceeding, a step defense counsel says would violate Berry’s rights against compelled self‑incrimination and privacy.

The question before the court is whether the fairness doctrine and analogies to pretrial rule 14 permit the Commonwealth to obtain a court‑ordered psychiatric evaluation after a defendant has submitted mitigation evidence at a resentencing hearing. Defense counsel said such an order would require statutory or decisional authority and is not covered by ordinary post‑conviction discovery under rule 30.

Attorney Elizabeth Caddock, counsel for Germaine Berry, told the court that Berry requested a constitutionally required Perez resentencing hearing after receiving consecutive sentences while he was 20 that lengthened his parole eligibility. She argued the defense’s filing and supporting materials were intended to place Berry’s upbringing, adverse childhood events and post‑sentencing rehabilitation before a resentencing judge, not to waive constitutional protections. “No case, no rule, no statute has ever said that simply saying you don't have a mental illness, you're waiving your right against compelled self‑incrimination,” Caddock said, urging the court not to extend pretrial waiver principles into the post‑conviction resentencing context.

Caddock drew a distinction between ordinary discovery and a compelled psychiatric examination, saying the latter is treated differently by case law because it can elicit testimonial matter that may incriminate a defendant or expose him to unrelated charges. She also noted the trial record: the trial expert reported schizophrenic characteristics without a definitive schizophrenia diagnosis and the defense had relied on diminished‑capacity style mitigation tied to trauma and upbringing.

The Commonwealth, represented by Elizabeth Martino, asked the court to affirm a single justice’s decision that a motion judge did not abuse her discretion in allowing the Commonwealth’s motion for a psychiatric evaluation. “Permitting the defendant to offer his own expert testimony based on personal interviews while refusing to submit to interviews with court appointed experts offends basic notions of fairness,” Martino told the court, citing this court’s Connors decision and contending the fairness doctrine supports a rebuttal examination in some cases.

Martino said the Commonwealth retained an expert who, after reviewing available documents and the defendant’s aid‑in‑sentencing materials, expressed concern about gaps in mental‑health treatment and whether absence of disciplinary reports alone proves rehabilitation. She argued the fairness doctrine and analogous rule‑14 principles allow the government to secure its own expert to rebut a defendant’s mitigation evidence when that evidence is based on interviews or personal statements given to the defendant’s expert.

Justices questioned how broadly any waiver or compelled‑exam authority should extend. The court probed whether allowing compelled psychiatric exams whenever a resentencing litigant advances evidence of rehabilitation would effectively create a categorical rule that undercuts individualized resentencing. Counsel for the Commonwealth said scope limits and present case facts should constrain any relief and emphasized that the Commonwealth carries the burden in Perez proceedings to show extraordinary circumstances that would justify longer parole eligibility.

The parties debated the difference between objective Department of Corrections records and testimonial material obtained through a psychiatric interview. Defense counsel emphasized that DOC records and programming information provide objective evidence of post‑sentencing conduct, while a compelled interview can elicit statements that have testimonial character and broader legal consequences.

No decision was announced at oral argument. The central legal questions for the court to resolve are (1) whether a compelled psychiatric examination at a Perez resentencing is authorized under existing rules or case law, and (2) if a defendant offers expert mitigation evidence based on personal interviews, whether the fairness doctrine permits the Commonwealth to obtain a court‑ordered examination limited in scope to rebut the submitted evidence.

Context and next steps: the argument focused on how this court’s precedents—Perez, Miller, Costa, Diachenko, Mattis and Connors—should apply to post‑conviction resentencing hearings where defendants submit psychological or mitigation material. The SJC will issue a written decision resolving whether the Commonwealth may obtain a court‑ordered psychiatric examination in these circumstances and, if so, the permissible scope of any compelled inquiry.