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.
Currently in Massachusetts, the only mens rea required for first-degree murder by extreme atrocity or cruelty is malice aforethought—the same mens rea required for second-degree murder. See Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983). The mental state may be identical, but the punishment is very different: for first-degree murder, it is life imprisonment without parole; for second-degree, it is life with the possibility of parole after fifteen years. What distinguishes proof of the greater offense is evidence of extraordinary brutality or suffering. Id. at 227–228. But the Commonwealth need not prove the defendant intended, or was even aware of, this heightened savagery. Id.
Is it time to reconsider this law? At least two Justices of the Supreme Judicial Court (and one former Justice) think so. See Commonwealth v. Berry, 466 Mass. 763, 774–778 (2014) (Gants, J., concurring, joined by C.J. Ireland [now retired] and Duffly, J.). See also Commonwealth v. Riley, 467 Mass. 799, 828–829 (2014) (Duffly, J., concurring). They say it is unfair to allow a jury to find that a defendant acted with extreme atrocity or cruelty without proof that he intended, or was indifferent to, the victim’s extraordinary pain. Riley, 467 Mass. at 828–829; Berry, 466 Mass. at 776–778. The point is well taken.
Consider a hypothetical case where a jury heard evidence that a defendant killed a victim by repeatedly striking him in the head with a tire iron. On the theory of extreme atrocity or cruelty, the jury would be instructed that they could find the defendant guilty if they found any one of seven factors—only one of which is subjective: the defendant’s indifference to, or taking pleasure in, the victim’s suffering. See Cunneen, 389 Mass. at 227. The other six factors are objective: the victim’s consciousness and degree of suffering; the extent of physical injuries; the number of blows; the manner and force of blows; the instrument used; and the disproportion between the means needed to cause death and those used. Id. So, the jury could sidestep the question of the defendant’s intent or awareness of the victim’s suffering by focusing solely on one or more of the objective factors—e.g., that the instrument used (a tire iron) can cause grotesque injuries. To be sure, there is one circumstance when a jury is required to consider the subjective factor: when there is evidence suggesting the defendant was mentally impaired. See Commonwealth v. Gould, 380 Mass. 672, 685–686 (1980). But even then, the Commonwealth is still not required to disprove the defendant’s impairment; evidence of impairment is simply a factor that the jury can weigh as they see fit.
In short, the trouble with Cunneen is that it separates the subjective factor from the objective ones. Luckily, these factors can be joined using principles from our existing law.
The case that established that malice is the only required mens rea for extreme atrocity or cruelty nonetheless acknowledged that another state of mind is also relevant. See Commonwealth v. Gilbert, 165 Mass. 45, 58–59 (1895). In one breath, the court declared that “[s]pecial knowledge of the character of the act,” i.e., that the killing “was attended with extreme atrocity or cruelty,” is not required. Id. at 58. But, in another breath, the court recognized that some knowledge of the crime’s brutality must exist: “The circumstances [of the killing] would give [the defendant] reason to believe that he was causing pain to his victim; the indifference to such pain, as well as actual knowledge thereof and taking pleasure in it, constitute cruelty, and extreme cruelty is only a higher degree of cruelty.” Id. at 59. The implication is that a defendant who knows his actions are cruel would also know they are extremely so. Yet, how can a jury make this conclusion unless they find that the defendant’s actions were extreme (e.g., that the defendant inflicted multiple blows with a dangerous weapon), and that the defendant had at least “actual knowledge” of the extraordinary pain the victim would suffer? Gilbert, 165 Mass. at 59. And shouldn’t the Commonwealth have to prove this mens rea, considering what is at stake: a sentence of life without parole? Put another way, when our most severe criminal punishment is on the line, is it fair to allow the jury to presume the defendant’s actual knowledge of, indifference to, or pleasure in the victim’s extreme suffering? These are the problems that Gilbert created and that Cunneen failed to solve.
So what is the answer? How about requiring the Commonwealth to prove both the first Cunneen factor and at least one of the others? That would bring together two essential components: an unusually brutal or painful manner of death (objective element), and the defendant’s indifference to or taking pleasure in the victim’s extraordinary suffering (subjective element). By analogy, our law already uses a similar hybrid of objective and subjective components for so-called “third-prong malice”: an intent to do an act which, in circumstances known to the defendant (subjective part), a reasonable person would have known created a plain and strong likelihood of death (objective part). See Commonwealth v. Stewart, 460 Mass. 817, 826 & n.9 (2011). A similar hybrid could perhaps work for extreme atrocity or cruelty too.
Some time ago, two members of the Supreme Judicial Court worried that requiring the Commonwealth to prove the defendant knew about or intended the victim’s extreme suffering would “blur the distinction” between two theories of first-degree murder: deliberate premeditation, and extreme atrocity or cruelty. See Gould, 380 Mass. at 693 (Quirico, J., concurring in part and dissenting in part, joined by Hennessey, C.J.). The Justices did not explain what they meant by “blur.” It seems they were concerned that because deliberate premeditation is the only theory of first-degree murder that, besides malice, has a second mens rea (i.e., forming a plan to kill after a period of reflection, Commonwealth v. Caine, 366 Mass. 366, 374 ), adding a second mens rea to extreme atrocity or cruelty (indifference to or pleasure in the victim’s suffering) would—by giving that theory two mens reas—make that theory too similar to deliberate premeditation. The concern, however, is not compelling. The mental state for deliberate premeditation (forming a plan to kill after a period of reflection) is quite unlike indifference to or taking pleasure in a victim’s extraordinary suffering. Thus, the purported concern with “blurring” should not stand in the way of improving our law.
The same two Justices also warned that adding a second mens rea would “rewrite [the] legislative definition” of extreme atrocity or cruelty. See Gould, 380 Mass. at 691. Perhaps so, considering that G. L. c. 265, § 1 does not provide this second mens rea. But neither does the statute define what acts objectively bespeak extreme atrocity or cruelty; the common law does that. See Cunneen, 389 Mass. at 227. Also, the Legislature has not amended G. L. c. 265, § 1 since the Supreme Judicial Court, more than three decades ago, allowed juries to at least consider evidence of a defendant’s mental state (beyond malice) to determine whether the defendant acted with extreme atrocity or cruelty. See Gould, 380 Mass. at 684–686 & n.16. Accord Commonwealth v. Rutkowski, 459 Mass. 794, 798 (2011); Commonwealth v. Urrea, 443 Mass. 530, 535 (2005). See also Cunneen, 389 Mass. at 227–228. The Legislature’s silence on Cunneen and Gould suggests it is comfortable with sensible judicial modifications of the law.
It may be some time before the right occasion arises to revisit the mens rea element of murder by extreme atrocity or cruelty. When that time comes, the Supreme Judicial Court would do well to take the opportunity to make the law more logical and fair.
Alex G. Philipson is the founder of Philipson Legal, a boutique practice focusing on civil and criminal appeals.