Post conviction

Published on: July 25, 2015

SJC Clarifies Timeframe for Sexually Dangerous Person Petitions

Under Massachusetts G. L. c. 123A, § 12, if the Commonwealth has reason to believe a person convicted of a sex offense is likely to re-offend, it may file a petition in the Superior Court alleging the person is a “sexually dangerous person,” and request that the person be civilly committed. Once the petition for civil commitment as a sexually dangerous person is filed, a judge determines whether the Commonwealth’s allegations meet the standard of probable cause to believe the person is sexually dangerous. The person who is the subject of this petition must be provided notice and have an opportunity to appear and contest the allegations. Generally, the petitions for civil commitment as a sexually dangerous person are filed in the months leading up to the person’s release date from confinement. If a finding of probable cause is made, the person has a right to a trial to determine if he is a sexually dangerous person. If a person is determined to be sexually dangerous after trial, he is then committed to a treatment center for an indefinite period. This means that he could be committed for as little as one day or for the rest of his life.

In a recent case – Commonwealth v. Libby – the Supreme Judicial Court issued a ruling clarifying the terms of a sexually dangerous person petition. Libby was convicted of a sex offense in 2002 and completed his sentence of incarceration shortly thereafter. In 2013, he was indicted on a different charge (failure to register). Unable to post bail, he was held in custody awaiting trial on the new charge. While he was in held in custody, the Commonwealth filed a sexually dangerous person petition, pursuant to G.L. c.123A, §12. Libby moved to dismiss the petition on the ground that he had already completed the sentence for the sex offense, was therefore not serving a sentence at the time the petition was filed, and thus the Commonwealth was not permitted to file the petition. His motion to dismiss, however, was denied. Libby then sought relief pursuant to G. L. c. 211, §3, which allows the SJC to review trial court rulings prior to the disposition of a case in certain limited circumstances. Continue reading →

Published on: July 8, 2015

SJC Accepts Petition to Review Holyoke District Court Plea Practice

By Daniel Cappetta

During the process of a criminal case, the trial court judge makes a number of different rulings, all of which may be appealed by a defendant. There are several different types of appeals. The most common type of appeal is a direct appeal, which is an appeal to the Appeals Court following a conviction after trial. A defendant has a statutory right to a direct appeal, meaning he has a right to file and be heard on the issues raised in the appeal. In addition to direct appeals, there are several other vehicles for appealing a decision made by a trial court judge, including interlocutory appeals – i.e. appeals made before a case goes to trial. Defendants are only permitted to file interlocutory appeals in limited circumstances, which typically involve the denial of a motion to suppress evidence.

In addition to direct appeals and interlocutory appeals, appeals may also be made pursuant to G. L. c. 211, § 3. Under this statute, the Supreme Judicial Court has “general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly provided.” Relief under G. L. c. 211, § 3 is discretionary, meaning the SJC is not required to accept a request for review under the statute. The Court has repeatedly stated that it will grant relief under G.L. c. 211, § 3, “[o]nly in the most exceptional circumstances.” For the Court to accept such an appeal for review, a defendant must demonstrate not only that a substantive right is at stake, but also that the normal process of direct appellate review will be inadequate to vindicate that right, and therefore there is no other recourse but to invoke the Court’s special powers.

On June 30, 2015, the SJC accepted a G. L. c. 211, § 3 petition filed by a defendant with a case in the Holyoke District Court. Specifically, the petition addressed a new order issued by the Holyoke District Court relating to G. L. c. 278, § 18. This statute establishes the right of defendants with cases in District Court to withdraw their pleas if the judge seeks to impose a sentence that exceeds the defendant’s recommendation. In other words, if a defendant facing charges in District Court chooses to plead guilty and resolve his case short of trial and the judge exceeds the sentence requested by the defendant, the defendant has an absolute right to withdraw his plea and take the case to trial. This is called a “defense capped” plea because the defendant has the right to choose the maximum penalty that he will accept. The new order states that a defendant will not have the right to withdraw his plea if the judge exceeds his recommended sentence when the plea is tendered on the trial date, thereby stripping defendants of the right to present a defense-capped plea on the date of trial. In addition to accepting the petition for review, the
SJC also issued an order staying the implementation of the order pending the Court’s decision. Continue reading →

Published on: May 24, 2015

SJC Issues Decision on Dookhan Cases

By Daniel Cappetta

This past week, the Supreme Judicial Court rule that people who pled guilty in cases where evidence was mishandled by former state chemist Annie Dookhan may not be charged with more serious crimes if given a new trial and, if convicted, may not be given a worse sentence than the judge originally imposed. The decision – Commonwealth v. Bridgeman – was unanimous.

Dookhan is the former Massachusetts drug lab chemist accused of tampering with evidence in a drug testing scandal that threatened thousands of criminal cases in Massachusetts. Dookhan, who worked at the state’s Hinton Laboratory in Jamaica Plain, was accused of fabricating test results and tampering with drug evidence. She played some sort of a role in more than 40,000 drug tests at the Hinton lab, where she worked from 2003 until 2012. The state police first learned of Dookhan’s actions after a chemist at the lab in which she worked said that he observed “many irregularities” in her work. During a subsequent investigation, Dookhan admitted to authorities that she took shortcuts, such as only testing some of the samples that she was assigned to, and then listing them all as positive for the presence of a drug. She also acknowledged that sometimes, if a sample tested negative, she would take a known controlled substance from another sample and add it to the negative sample in order to make it test positively. Dookhan ultimately pled guilty in November 2013 to twenty-seven counts of misleading investigators, filing false reports, and tampering with evidence, and was sentenced to three to five years in state prison, followed by two years of probation that included mental health counseling if needed.

As a result of Dookhan’s malfeasance, the state shut down the laboratory in 2012. A list of so-called “Dookhan” cases was compiled so that the convictions could be re-visited and motions for new trials could be filed. Counties across the state set up “Dookhan” sessions to deal with defendants’ motions for new trials. Some defendants chose to go forward with new trials or re-negotiated pleas. Others chose not to for fear that they might lose at trial and get a worse sentence. Alternatively some defendants who had originally pled guilty to reduced charges in return for the plea chose not to try and vacate their pleas because of the concern that the original charges (rather than the reduced ones) would be reinstated. As a result, many defendants chose to take no action, despite the clear violation of their due process rights.

Continue reading →

Published on: July 17, 2014

New Trial Granted for Man Convicted of Deadly Fire in Lowell in 1982

By Daniel Cappetta

On March 5, 1982, a five-alarm fire killed a family of four and four others in Lowell, Massachusetts. Within 48 hours, the Lowell Police Department had arrested three people – the defendant and two other men who were brothers. The defendant was just 24 years old at the time and was reportedly arrested because a witness claimed that he had seen him throw something into the building prior to the fire. After his arrest, the defendant was questioned by police for 6.5 hours. During the interrogation, the defendant claimed to be “the son of God,” and ultimately confessed that he and the brothers threw Molotov cocktails into the building to seek revenge for a botched drug deal. The defendant specifically told police that he watched as the brothers filled 12-ounce Miller beer bottles with flammable liquid and rags in the basement of 38 Branch Street, where The defendant and one of the brothers lived. The trio then reportedly spent the day drinking, and eventually headed to Decatur Street, the site of the fire.

The charges against the brothers were dropped when the defendant refused to testify against them at a probable-cause hearing. They returned to Puerto Rico (and have since died), but the defendant went to trial in 1983 and was convicted of arson and 8 murders. He was sentenced to life in prison. Following the convictions, the defendanto appealed, but the appeal was denied. The defendant also filed two motions for a new trial, which were likewise denied.

In June 2010, however, a Boston Globe article written by reporters at the New England Center For Investigative Reporting concluded that the investigation and prosecution of the defendant had been compromised by a “series of grave shortcomings” that suggested he was wrongfully convicted.

Specifically, the findings indicated that:

(1) Lowell police quickly determined it was arson, but since the science of fire-scene investigations has changed since then, the burn patterns investigators believed was evidence of arson may not be;

(2) No accelerant was found, casting doubt on the Molotov-cocktail theory of what started the fire;

(3) The Spanish-speaking translator who helped police question the defendant now says the defendant was delusional during questioning and did not understand when he signed his confession;

(4) The defendant’s court-appointed defense attorney was distracted by his own legal problems — a motor-vehicle-homicide charge — and should have withdrawn from the case. Continue reading →