Welcome Back SJC

 

The start of our program year coincides with the start of the new session of the Supreme Judicial Court, which runs until May 2017.  The Justices held their first oral argument on September 6, when Chief Justice Ralph Gants welcomed three recently confirmed justices to the bench for the first time – Frank Gaziano, David Lowy, and Kimberly Budd who replace retired Justices Frank Spina, Robert Cordy, and Fernande Duffly.  They join returning justices Barbara Lenk, Margot Botsford, and Geraldine Hines, the latter two of whom face mandatory retirement in 2017.

Here are some cases we’ll be keeping a close eye on this session:

Mandatory Minimum Sentencing

The first case of interest, Commonwealth v. Laltaprasad (SJC-11970), was actually argued last session, but the Court waived its 130-day rule, which requires it to issue a written opinion within 130 days after argument (or submission without argument), and still has not issued its holding.  The case revolves around Superior Court Judge Shannon Frison’s departure from the mandatory minimum sentence for drug crimes of which the defendant was convicted.  On July 23, 2015, the defendant was convicted of possession with intent to distribute heroin, subsequent offense, under G.L. 94C §32(b), and possession with intent to distribute cocaine, subsequent offense, under G.L. 94C, §32A(d).  At sentencing, the Commonwealth recommended 3.5 to 5 years in state prison.  The court departed from the mandatory minimum of 3.5 years in state prison required by G.L. 94C, §32A(d), and G.L. 94C §32(b), and instead imposed a sentence of 2.5 years in the house of correction, explaining in its memorandum of sentence departure:

(1) The defendant does not have a prior conviction for drug trafficking at seriousness levels 7 or 8; and

(2) The facts and circumstances surrounding this matter warrant a lesser sentence.  Specifically, the defendant was arrested with less than 1 gram of the controlled substances.  Further, the defendant was severely injured when the other individual shot a firearm at him.  He suffered 11 gunshot wounds and endured 21 surgeries prior to trial.  Given both the relatively small amount of contraband involved in this arrest and the extreme medical condition of the defendant, the Court will depart downward and impose a sentence of 2.5 years in the House of Correction.

The Commonwealth appealed this decision, arguing that the judge had no discretion to depart from the mandatory minimum sentence because the Legislature has exclusive power to prescribe sentencing penalties, and that separation of powers principles preclude a judge from disregarding the Legislature’s directive.  The Commonwealth also argued that sentencing guidelines recommended pursuant to G.L. c. 211E, which permit a judge to depart from a mandatory minimum sentence, have never been enacted by the Legislature, and thus could not be applied in this case.

In late December, the SJC solicited amicus briefs on “Whether a sentencing judge has discretion to depart from the mandatory minimum terms specified in G. L. c. 94C, § 32 (b), and § 32A (d), under the sentencing guidelines recommended pursuant to G. L. c. 211E or otherwise.”  A large number of organizations submitted amicus briefs making various arguments opposing mandatory minimum sentences, including separation of powers in government, the need for judicial discretion, individualized  and proportional sentencing, and the disparate impact of mandatory minimum drug laws on minority populations.  They also explained that mandatory minimums did not adequately serve the primary purposes of sentencing and argued for safety valves, similar to those in the Federal system and a number of other states, that permit judges to depart from mandatory minimum sentencing schemes under certain circumstances.

Until the decision is issued, it remains unclear why the SJC chose to take this case.  On one hand, it seems clear that the lower-court judge did not follow the law in her sentencing memorandum.  Or did the SJC see here an opportunity to make changes to the current state of mandatory minimum sentencing in the Commonwealth?  From a policy perspective, the BBA has long opposed mandatory minimum sentencing, so we are particularly interested to see if the Court uses this case as a vehicle to move the ball on this issue.

Drug Lab Scandal Solutions

Bridgeman v. District Attorney (SJC-12157) is the latest in the string of cases related to the Annie Dookhan/Hinton Drug Lab scandal, in which convicted chemist Annie Dookhan tainted tens of thousands of drug samples submitted for analysis in criminal cases.  This story broke publicly around 2012, and since then, the Court, CPCS, and the seven District Attorneys (DAs) with affected cases have all struggled with how to handle the voluminous issues that arose.  First, there was the issue of case identification.  Attorney David Meier was assigned the task of gathering information from the drug lab records.  He found that roughly 40,000 samples were affected by Dookhan’s actions.  Over time, that list has been translated into a list of more than 20,000 individuals whose cases remain in limbo.  While the SJC has chipped away at this case slightly, such as through the hard work of a number of retired judges, including BBA Council member, Judge Margaret Hinkle, conducting special drug lab hearings, the remaining numbers are still considerable.

In 2014, the SJC held in Commonwealth v. Scott (SJC-11465) that every person convicted with Annie Dookhan serving as either the primary or secondary chemist was entitled to a presumption of government misconduct tainting their case, meaning that they wouldn’t have to prove that Dookhan acted illicitly in their specific cases.  In their brief for this case, CPCS recommended a “global remedy” to presumptively vacate all convictions of the impacted defendants, with exceptions in a small number of certain cases.

The current case, Bridgeman has been addressed in pieces.  In May 2015, the SJC issued its decision on one issue – whether Dookhan defendants who wanted to withdraw guilty pleas could face additional sanctions.  The Court created an “exposure gap” to prevent chilling of defendants bringing their cases, such that defendants seeking post-conviction relief could not be convicted of more serious offenses or face harsher sentences than previously imposed.  The remaining issue to be addressed in the still pending Bridgeman case (SJC-12157) is whether there has been unconstitutional delay in dealing with the class of cases impacted by the Dookhan scandal, given that this case was filed in 2015, nearly 15 years after the misconduct began, and four years from the public revelation.

We are very interested to see how the Court deals with this case.  Will they adopt a “global solution”?  Or will they opt to handle the more than 20,000 cases on a case-by-case basis?  If the latter, how will the justice system (courts, appointed counsel, DAs, …) handle a potentially unwieldy number of these appeals by Dookhan defendants?  How will impacted defendants be given notice of this outcome and of their rights?  This case seems to carry even greater potential significance given the revelations of evidence issues in the Sonia Farak drug lab scandal and, most recently, the Braintree Police Department.

Bail Considerations

The third case on our radar is Commonwealth v. Wagle (SJ-2016-0334), on whether it is a violation of the state and federal constitutional guarantees of equal protection and due process of law to hold  an impoverished defendant in jail before trial because she cannot afford money bail (see the Petition for Relief here).  The case is the latest in a series of cases (see, e.g. Commonwealth v. Henry) and discussions on costs and fees in the criminal justice system generally.

In this case, a Single Justice (Hines) issued an interim order, decreasing the bail amount and granting leave to her attorneys to file a revised petition in 30 days (by September 24, 2016), making arguments for “systemic relief” for the class of similarly situated individuals.  Justice Hines requested that the amended petition focus “specifically on the terms of the Massachusetts bail statute and how it is being applied by Massachusetts judges, and why the defendant claims that our statute and its application are unconstitutional.”  After reading this petition and a response from the Commonwealth, and permitting both sides to be heard on the question of reservation and reporting, the Single Justice will consider whether this case should go before the full panel of the SJC.

We’ll be keeping a close eye on this case and the discussion of fees in the criminal justice system generally.  It is important to remember that the courts are only one player here, as we are also looking forward to seeing the criminal justice reform proposals in the Legislature emerging as a result of the forthcoming Council of State Governments report.

Those are just three of a number of cases we are watching, and we can’t wait to see what other issues the SJC takes on this session, as well as what impact, if any, the changing personnel on the Court will have.  We look forward to following up with you on these cases of interest and telling you about more throughout this SJC session.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association