by Francis V. Kenneally
Voice of Judiciary
Managing the first degree murder caseload of the Supreme Judicial Court is a challenge – interesting and usually enjoyable, but definitely a challenge. For reasons tied to the cases of Nicola Sacco and Bartolomeo Vanzetti, which began almost 100 years ago, appeals from convictions of first degree murder are different from any other type of case, criminal or civil. Moreover, both because of these differences and the seriousness of the crime and sentence involved, there are a number of different players, individual and institutional, that have strong interests in how these appeals are handled. The following discusses the unique aspects of first degree murder appeals, how they have contributed to a backlog of pending first degree murder appeals in the full court, and the court’s recent efforts to address some of the historic issues affecting its first degree murder docket.
Appeals from first degree murder convictions are entered directly in the SJC; in contrast to almost all other types of appeals, the Appeals Court does not have concurrent jurisdiction with the SJC to hear first degree murder appeals. See G. L. c. 211A, § 10. The statute governing appellate review of first degree murder convictions, G. L. c. 278, § 33E, directs the SJC to consider the “whole case,” and – unlike virtually all other appeals – review is not limited to issues that have been properly preserved. Rather, § 33E provides that “the court may, if satisfied that the verdict was against the law or the weight of the evidence, or because of newly discovered evidence, or for any other reason that justice may require (a) order a new trial or (b) direct the entry of a verdict of a lesser degree of guilt.” See, e.g., Commonwealth v. Dowds, 483 Mass. 498, 513 (2019) (In the unique circumstances of this case, a “verdict of murder in the second degree is more consonant with justice than is a verdict of murder in the first degree.”).
This special, fulsome “33E review,” as it is called, has led the court to schedule longer oral arguments than is regularly allowed in any other appeal – twenty minutes per side versus fifteen. And it is this statutory duty to review the whole case combined with other provisions in 33E, particularly those governing motions for a new trial, that makes managing the first degree murder docket so challenging. Apart from any other post-conviction motion for a new trial, 33E draws a critical distinction between motions filed before the direct appeal is finally decided by entry of the appellate rescript 28 days after the appellate decision is released, and motions filed post-rescript. As to new trial motions filed before the appellate rescript, the motion must be filed with the Supreme Judicial Court for the Commonwealth, which, with rare exception, remands the motion to the Superior Court for disposition. The goal – certainly of defense counsel – is to have any appeal from the denial of such a motion in the Superior Court joined with the direct appeal of the underlying conviction because, if it is, the combined appeals both get the benefit of 33E review. And even if the appeals are not combined, an appeal from a denial of a new trial motion that is filed before entry of the appellate rescript in the direct appeal receives direct review by the full court. Commonwealth v. Raymond, 450 Mass. 729, 729-30 n. 1 (2008).
The landscape, however, changes dramatically if the motion for a new trial is filed after the full court decides the defendant’s direct appeal and the appellate rescript enters. The motion must then be filed in the Superior Court, and if denied, the defendant must apply for leave from a single justice of the Supreme Judicial Court to allow review of the Superior Court’s denial by the full court. A defendant’s desire to litigate fully a motion for a new trial before a decision on the direct appeal is understandable and borne out by the statistics on “so-called” gatekeeper petitions. From 2014 to 2018, 109 gatekeeper petitions were filed in the Supreme Judicial Court for Suffolk County (the county court), and were reviewed by a single justice. Of these, 97 were denied, 5 were allowed to be reported for review to the full court, 4 were dismissed, and 3 were withdrawn. If the single justice denies a gatekeeper petition, there is no appellate review of the denial. Commonwealth v. Gunter, 456 Mass. 1017, 1017 (2010).
Working together, these statutory provisions can cause lengthy delays in the court’s consideration of first degree murder appeals. For obvious reasons, defendants do not want their direct appeals heard before thoroughly exploring the possibility of filing and litigating motions for a new trial not only to preserve the right of appeal from any denial (and thus avoid the gatekeeper) but also to ensure 33E review. So, historically, at the request of defendants, the court has stayed direct appeals virtually indefinitely while the new trial motion is litigated in the Superior Court. Litigation in the Superior Court may take years for a variety of reasons, including (among others): the trial judge may have retired and reassignment is necessary; Superior Court judges are working to capacity on their current dockets; the parties battle over post-conviction discovery before the motion is finally presented and heard; and, because of some recent appellate decisions, there appears to be an increasing number of evidentiary hearings, which results in scheduling challenges and delays to accommodate the calendars of witnesses – expert witnesses in particular – as well as judges and counsel. As a result, appeals have been stayed for 5, 10, and at times more than 15 years.
Another cause of delay is the frequency of motions for appointment of new counsel filed by defendants or motions to withdraw filed by counsel; not infrequently, these occur multiple times in a single appeal. The Committee for Public Counsel Services must then find new counsel from its limited list of attorneys qualified to handle first degree murder appeals. Each new appointment of counsel, some many years after entry of the appeal, slows the progress of the appeal because new counsel must, at a minimum, become acquainted with a new client, meet with predecessor appellate counsel, speak with trial counsel, review voluminous files and transcripts, and decide whether to file a motion for a new trial.
The confluence of these factors led the SJC, in April 2018, to examine its first degree murder docket, identify areas of concern, and address some of the docket’s unique, systemic problems. The murder docket at the time had 129 pending appeals with the oldest of these entered in 1996. The caseload consisted of 22 appeals that were entered from 1996 to 2010, 60 from 2011 to 2015, and 47 from 2016 to 2018. Undue delay, in some but not all of these appeals, thwarts the judiciary’s obligation to provide justice fairly and efficiently: if there is error requiring a new trial, delay may jeopardize the Commonwealth’s ability to retry the defendant; delay undermines the public perception of the administration of justice, especially by the families of murder victims; and delay has caused defendants to question the fairness of a process that takes so long.
To that end, the Justices appointed retired Supreme Judicial Court Justice Margot Botsford as a special master in April 2018 to help manage the first degree murder docket and devise strategies to resolve long-standing problems. Through regular status conferences with attorneys, the special master implemented individualized case management plans in the oldest cases. These status conferences focused on: (1) the oldest murder cases; (2) newer murder cases; (3) cases in which counsel have appearances in 5 or more murder appeals; and (4) cases where the defendant’s presence was required. At this writing, the special master has held over 170 status conferences.
As part of the case management plan, the full court clerk’s office reviews every Superior Court docket where a motion is pending after remand and sends a monthly report to the Chief Justice of the Superior Court. The report includes information about motions in need of assignment, due dates for the Commonwealth’s responses, scheduled evidentiary hearings, pending motions for a new trial and for discovery, and any motions currently under advisement.
In the meantime, the full court explored the possibility of establishing special time standards in first degree murder appeals by way of a standing order. Before doing so, Chief Justice Gants and Justice Gaziano met in January 2019 with a group of stakeholders that included the special master, defense attorneys, and assistant district attorneys. This meeting provided an opportunity to discuss general concerns about the full court’s first degree murder docket and specific concerns about the adoption of a standing order for the docket.
Following this meeting, in April 2019, the court published a proposed standing order governing first degree murder appeals with a request for comment. After consideration of comments received from the bar and the judiciary, the proposed standing order was revised and adopted by the full court on August 6 with an effective date of September 4, 2019. See https://www.mass.gov/files/documents/2019/08/07/sjc-standing-order-governing-first-degree-murder-appeals-effective-september-2019.pdf
The standing order imposes time standards designed to remedy undue delay. Motions for a new trial must be filed “as soon as reasonably practicable but no later than 18 months after entry of the direct appeal.” However, the special master has broad discretion to allow extensions “on a substantial showing of need.” A timely filed motion guarantees that both the direct appeal and the appeal from any denial of the motion for a new trial will be considered together. If a motion for a new trial is not timely filed, there is no longer a presumption, formal or informal, that review of any denial of that motion for a new trial will be considered at the same time as the direct appeal.
To help identify any transcription issues at an early stage of the appeal, the defendant is required to report whether all transcripts necessary for appellate review have been filed with the clerk within 4 months after entry of the appeal. Status conferences, which had previously been scheduled on an ad hoc basis, must be scheduled 6, 9, 12, and 15 months after entry of the direct appeal. At the first status conference, and if necessary thereafter, the special master will discuss with counsel the likelihood that the defendant will be filing a motion for a new trial, and if so, discuss the scheduling of that motion – all to ensure that absent compelling circumstances, any motion will be filed within 18 months of the entry of the direct appeal. Finally, where a motion to withdraw is allowed and new counsel is appointed, deadlines previously imposed remain in effect despite the change in counsel. The special master may, however, adjust the deadlines for status conferences, briefs, and new trial motions for good cause.
Whether these case management innovations lead to lasting changes to the full court’s first degree murder docket remains to be seen. It is clear, though, that it will take the concerted effort of many to balance the interests of all stakeholders and promote efficiency without sacrificing fairness.
Francis V. Kenneally is clerk of the Supreme Judicial Court for the Commonwealth. He serves on the SJC’s Standing Advisory Committees on the Rules of Civil Procedure and on the Rules of Appellate Procedure, and served as co-chair of the SJC’s Appellate Pro Bono Committee.
Commonwealth v. Rosa: The Appeals Court Elaborates the Massachusetts Law on the Parental Privilege to Use Reasonable Force in Disciplining a ChildPosted: August 15, 2019
by David Deakin
In Commonwealth v. Rosa, 94 Mass. App. Ct. 458 (2018), further app. rev. denied, 481 Mass. 1104 (Jan. 24, 2019), a case about the parental privilege to use corporal punishment, the Massachusetts Appeals Court grappled with the extent to which a fact finder should consider a defendant’s approach to parenting. The Appeals Court unanimously upheld the conviction of a father who kicked his five-year-old daughter in the chest hard enough to knock her down and cause her to cry. The Court, however, was divided about the basis for the holding that the Commonwealth had overcome the defense. As each of the three justices on the panel authored an opinion, the criminal bar should expect continuing litigation not only about the scope of the privilege but also about the type and quantum of evidence necessary for the prosecution to overcome the defense.
The Supreme Judicial Court established in Commonwealth v. Dorvil, 472 Mass. 1, 12 (2015) that a parent can use reasonable force in disciplining a child. The SJC explained that “no criminal liability will attach to a parent’s use of force against his or her child as long as ‘(1) the force used against the minor child is reasonable; (2) the force is reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor’s misconduct; and (3) the force used neither causes, nor creates a substantial risk of causing physical harm (beyond fleeting pain or minor, transient marks), gross degradation, or severe mental distress.’” Rosa, 94 Mass. App. Ct. at 461 (parentheses in original), quoting Dorvil, 472 Mass. at 12. Because the parental privilege described above is an affirmative defense, once it is raised by the defendant, the prosecution bears the burden of disproving at least one of the requirements of the defense beyond a reasonable doubt. See Dorvil, 472 Mass. at 13. Each requirement is a question of fact. See id.
After a bench trial, the defendant in Rosa was convicted of assault and battery by means of a dangerous weapon (shod foot) for kicking his five-year-old daughter in her chest, knocking her to the ground, and causing both her and her two-year-old brother to cry. The defendant, who had brought his children with him to a drug store, became angry when his daughter ran and hid from him in the store. The defendant yelled and cursed at the girl. After a few minutes, the defendant went into the line to check out of the store. As he did, his daughter approached him and “grabbed his legs.” He “shoved” her away. The scene repeated itself, and the defendant spoke angrily to his daughter. When she approached him a third time, the defendant kicked her in the chest. As a result, she fell to the ground and cried briefly. In response to a question from a responding police officer about why he had kicked his daughter, the defendant replied, “I don’t raise pussies.” At trial, the defendant testified, claiming that he had “nudged,” rather than kicked, his daughter. The defendant first maintained that he had been concerned that his daughter would be kidnapped and thus used “reverse psychology,” pushing her away so she would stay near him. At another point in his testimony, however, he acknowledged that, by the time he kicked her, he was no longer concerned about kidnapping, and he did not want her close to him. Finally, he claimed his comment that “I don’t raise pussies” was meant to convey that he did not want to raise his children to be victims of bullies.
Justice Wendlandt authored the Court’s opinion affirming the conviction. Justices Englander and Rubin each wrote a concurring opinion. Justice Englander’s concurrence primarily emphasized his dissatisfaction with the second prong of the Dorvil standard. Justice Rubin wrote to express his view that kicking a child could never constitute reasonable force in disciplining a child.
Writing for the Court, Justice Wendlandt explained that “[p]arenting is essential to the reason underlying the privilege, and that aspect of the privilege is embodied in prong two [force used must be “reasonably related to . . . safeguarding and promoting the welfare of the minor”].” Rosa, 94 Mass. App. Ct. at 463. In determining whether the force used by the defendant was reasonable (under both the first and second prongs of the standard), therefore, “the trier of fact should take into account a variety of factors, including ‘the child’s age, the physical and mental condition of the child, and the nature of the child’s offense.” Id. at 461. The Court seemed to conclude unanimously that evidence of a defendant’s “subjective” “emotional state” cannot, by itself, satisfy the Commonwealth’s burden of disproving the defense. Id. at 462 n.2. In his concurrence, however, Justice Englander faulted the prosecution for focusing “unduly on what the defendant said to his child, rather than what he did.” Id. at 470 (Englander, J., concurring) (emphasis in original). Left for another case to resolve is the extent to which the prosecution can rely on the defendant’s subjective emotional state. Justices Wendlandt and Rubin – and possibly also Justice Englander – agreed that the prosecution can introduce evidence “that the defendant’s supposedly legitimate parenting purpose is false . . . .” Id., 94 Mass. App. Ct. at 463. Justices Wendlandt and Rubin viewed such evidence as relevant to disproving reasonableness under both the first and second prongs of the defense. It seems that Justice Englander, who would abandon the second prong entirely, see below, would nonetheless agree that the falsity of an asserted parenting purpose is relevant to reasonableness under the first prong, although this is less clear.
Justice Englander concurred because he agreed that the Commonwealth met its burden to disprove the first prong of the defense, the reasonableness of the force used. He noted, however, that, in his view, “the evidence of unreasonable force here was thin.” Id. at 468. The defendant’s abuse in this case, Justice Englander concluded, was more serious than the “spank” that was held in Dorvil, 472 Mass. at 3, to be justified by the parental privilege, and less serious than “the striking of a child in the face with a belt . . . [leaving] a mark” that was held to be outside the privilege’s scope in Commonwealth v. Dobson, 92 Mass. App. Ct. 355, 357-359 (2017). He thus concurred that the Commonwealth had satisfied its burden of disproving the reasonableness of the force under the first prong, albeit in a close case.
Justice Englander wrote separately also because of his concern that the second prong of the defense “can be understood as an invitation to pass judgment on how a parent has chosen to parent.” Rosa, 94 Mass. App. Ct. at 469 (Englander, J., concurring). Thus, Justice Englander envisioned a “troubl[ing]” scenario in which “a parent will have shown that the force used was reasonable under prong one, but nevertheless is convicted of assault because (in the fact finder’s judgment) the parent’s reasonable force was not reasonably related to disciplining the child.” Id. (parentheses in original). Justice Englander would omit the second prong from the defense to prevent courts from “becom[ing] involved . . . in evaluating the parent’s judgment about how to discipline their child.” Id. at 470. Ultimately, Justice Englander concluded that the reasonableness requirement in the first prong fully captures the requirement that the discipline not be abusive. Encouraging finders of fact to focus on the reasonableness of parental discipline, rather than on the force used to implement it, Justice Englander concluded, creates “the risk . . . that less articulate parents will have more difficulty justifying their actions,” id. at 470 n. 3, and thus be convicted in cases in which more sophisticated parents might be acquitted (or not charged at all).
Justice Rubin also concurred with Justice Wendlandt’s opinion for the Court. He agreed with the Court’s opinion that the Commonwealth had satisfied its burden of proof as to all three prongs. As to the third prong, however, he would have gone even further than the Court. He wrote separately to note that, in his view, kicking a child can never be justified by the parental privilege “because kicking a child always ‘creates a substantial risk of . . . physical harm . . . , gross degradation or severe mental distress.’” Id. at 466 (first ellipses in original; second ellipses added), quoting Dorvil, 472 Mass. at 12.
Although the requirements of the parental privilege are now settled, their limits are anything but. Not only is the case law still in an early stage of development, see Rosa at 468 n.2 (“[o]ur case law is not yet very developed as to what force can qualify as reasonable . . . .”), but also there is still disagreement about whether and/or to what extent the defendant’s subjective intent and purpose in disciplining the child is relevant to the fact finder’s assessment of the reasonableness of the force used. In future cases, therefore, defense counsel will likely rely on language from Justice Englander’s concurrence and, indeed, from footnote 2 of the Court’s opinion, to argue that the prosecution should be prohibited from introducing evidence of the defendant’s emotional state and/or intent or, at least, limited in its ability to do so. Prosecutors will respond that even Justice Englander’s concurrence leaves room for introduction of evidence of the defendant’s animus toward the child and that, at a minimum, the sincerity of the defendant’s stated reason for disciplining the child is always relevant in applying the defense’s second prong.
David Deakin is an assistant attorney general and deputy chief of the Criminal Bureau. Before that, he was a prosecutor in the Suffolk County District Attorney’s Office, where he was chief of the Family Protection & Sexual Assault Bureau. This article represents the opinions and legal conclusions of its author and not necessarily those of the Office of the Attorney General. Opinions of the Attorney General are formal documents rendered pursuant to specific statutory authority.
by William Fick
On April 21, 2017, the First Circuit Court of Appeals denied the government’s petition for rehearing of United States v. Tavares, 844 F.3d 46 (1st Cir. 2016) (“O’Brien”), leaving in place the published opinion that ordered judgments of acquittal and brought the Massachusetts Probation Department “patronage” prosecution to a close. While the Court found that the government “overstepped its bounds in using federal criminal statutes to police the hiring practices” of state officials, id. at 49, the Court actually decided the case on narrow grounds and left unanswered a key looming question in public corruption investigations: can federal authorities prosecute allegedly dishonest but purely “political” quid pro quo exchanges, where there is no allegation of corrupt personal gain?
The O’Brien indictment alleged that state Probation Commissioner Jack O’Brien and two co-defendant officials ran “a rigged hiring system that catered to requests from state legislators and others to employ and promote candidates for employment” in the Probation Department. The indictment did not allege that the defendants, career public servants, put a penny in their pockets or did anything illegal for personal gain. Nor did the government claim that the defendants hired unqualified candidates. Yet prosecutors charged that the defendants committed federal crimes because, in considering and sometimes acting on recommendations from legislators, they violated a policy obligation to hire the “most qualified” candidates and did so with the intent to influence the legislature.
The government recognized that it could not prosecute the defendants for depriving the public of the “intangible right to honest services.” Several years earlier, in Skilling v. United States, 561 U.S. 358 (2010), the Supreme Court had limited “honest services” prosecutions to traditional bribery and kickback schemes and had warned against construing a criminal statute “in a manner that leaves its outer boundaries ambiguous and involves the federal government in setting standards of disclosure and good government for local and state officials,” id. at 402.
Instead, the government charged O’Brien and his co-defendants with conspiracy and racketeering based on predicate acts of mail fraud, bribery, and gratuity. The indictment alleged that rejection letters mailed to unsuccessful job candidates provided the jurisdictional “hook” for mail fraud. It further alleged bribery and gratuity in connection with the hiring of Representative Thomas Petrolati’s wife and employees recommended by Representative Robert DeLeo on behalf of other representatives at the time he was preparing to run for Speaker of the House and was allegedly seeking their votes. After a lengthy trial, the jury convicted the defendants on some of the mail fraud and gratuity charges.
In reversing the convictions and ordering judgments of acquittal, the First Circuit used broad language critical of the attempted reach of the prosecution: “This case involves state officials’ efforts to increase funding for their department through closed door arrangements with state legislators and other public officials. But not all unappealing conduct is criminal. As sovereigns, states have ‘the prerogative to regulate the permissible scope of interactions between state officials and their constituents.’” O’Brien, 844 F.3d at 54 (quoting McDonnell v. United States, 136 S. Ct. 2355, 2373 (2016)). The decision also reiterated Supreme Court warnings about federal meddling in state government. See id. But the court actually decided the case under much narrower, longstanding elemental principles.
With regard to the mail fraud counts, the court found that the rejection letters at issue were not mailed “in furtherance” of the alleged scheme to defraud, as the statute requires. See id. at 59-61. The government had argued that “rejection letters in a corrupt hiring system . . . help to maintain a facade of a merit-based system.” Id. at 59. But the court found that the government “presented no evidence that would allow the jury to infer that the rejection letters in this case served this duplicitous purpose.” Id.
With regard to the gratuity counts, the court held that the “evidence as to the gratuities predicates does not show adequate linkage between the thing of ‘substantial value’ conferred by O’Brien (the jobs) and an ‘official act’ performed or to be performed.” Id. at 55. The “government cannot show the requisite linkage merely by demonstrating that the gratuity was given ‘to build a reservoir of goodwill that might ultimately affect one or more of a multitude of unspecified acts, now and in the future.’” Id.
The O’Brien decision thus confirms the continuing vitality of basic elemental limits on mail fraud, bribery, and gratuity prosecutions. Not every incidental mailing in a fraud scheme can trigger federal prosecution under the mail fraud statute. Bribery and gratuity crimes require a clear connection between a specific “official act,” on the one hand, and a particular “thing of value” provided, on the other hand.
But the First Circuit’s decision did not directly address whether “personal gain” is required to sustain a public corruption case, nor did it establish any clear limits on federal criminal prosecution of political “horse-trading” among state and local officials. What would happen if the facts established the basic elements more clearly? Take, for example, an arrangement where “You vote for my funding bill and I vote for yours,” with a false denial of the deal contained in a mailing that more squarely is in furtherance of this arrangement? Untangling such questions will be left to future cases. The stakes are high because expansive federal investigations, as in O’Brien, can cast a chill over the State House, distracting and draining resources from legislators and their staffs for years.
William Fick, a founding partner of Fick & Marx LLP, was part of the trial team that defended Probation Commissioner Jack O’Brien.