Ma Supreme Judicial Court Running Scared: How It Protects the Treasury

judge-cartoon-graphic-280x165One thing the judges of the Massachusetts Supreme Judicial Court understand is that they get paid out of the Commonwealth’s treasury and if they hope to get another pay raise in the near future they have to protect it to the utmost.

Remember Annie Dookham who ran amuck in the state drug laboratory  causing a great furor. Annie made it possible for thousands of drug users and dealers to get their sentences set aside. I was asked what I thought the effect of that would be: I suggested it could top the Big Dig if things worked out like they normally should. I figured all those who were wrongfully incarcerated would have to be compensated, and the money seized returned, and the fees assessed by the courts would have to be returned.

After all if you are convicted on tainted evidence then you are to have your conviction set aside. The exclusionary rule keeps tainted evidence out of a trial. Evidence wrongfully seized, confessions wrongfully obtained, or evidence tainted by actions of state authorities is not admissible. If without that evidence the state is unable to prove its case then the person charged goes free without any penalties. It is sort of a stupid system where guilty people go free but that’s what we have.

All the drug evidence that Annie had access to is tainted. None of the people whose drugs she analyzed should have been convicted. Those that were had their convictions set aside. One such person was a guy named Pierce A. Martin.

The decision in his case, Commonwealth v. Martin, is here.

Martin pleaded guilty to possession of marijuana with intent to distribute. He  was sentenced to probation. He paid probation supervisory fees ($780) and a victim witness assessment fee ($50). When he learned of Annie’s doings he filed a motion to withdraw his plea of guilty which was allowed. The DA then decided he would not prosecute the case because he did not have the evidence to prove Martin’s guilt since the analysis of the marijuana being tainted was not admissible.

Martin seeing he was not guilty of anything thought he should be able to get the money he paid back. It seemed logical that he would not have to be out that money where he wasn’t convicted. But the Massachusetts judges said: “no way.” They feared a run on the Commonwealth treasury which might impact the amount of money available to pay them.

They said the Legislation imposing the victim witness fee only allowed it to be returned if the person won on appeal. If the person was convicted wrongly and received a new trial at which he was acquitted he still had to pay the fee. After spending much time telling us the Legislature intended the money be returned only if a person won on appeal it did admit that in another case (Zawatsky) the assessment was set aside when a judge voided a conviction for lack of jurisdiction.

How’s that? Did only not mean only? To get around it double talk it hoped we forgot the only on appeal part so it added it can also be set aside for lack of jurisdiction (it is void) but cannot be set aside if the court has jurisdiction and sets it aside. (it is voidable).

As I’ve pointed out, the judges make up the law even when it makes no sense. You and I know whether your conviction is set aside on appeal, by a new trial, or by a refusal of a prosecutor to go forward with the complaint against you the result is that you were not convicted. Why then would a court want to split hairs and say somehow those are different things when it is obvious that a person who has not been convicted of anything should not be charged a victim witness fee.

Then there is the matter of the probation fee. Martin is out-of-pocket $780 having been put on probation when he should not have been. Had he been sent to jail then he would not have paid the fee and would have been released. I’m not sure if he would be entitled to be compensated for the time wrongfully spent in jail. But if you are wrongly placed on probation why should you have to pay for that.

So you would think he gets back that money. But not in Massachusetts. The court said defendant did not point to a statutory basis for him to get the money back. When one deals in equity, that is what is right and just, you do not have to point to a statute. You rely upon a judge being able to tell right from wrong. The simple question is whether a person who has not been convicted must pay a probation fee.

Martin conceded during oral argument that the probation fees are financial penalties or fines. The court wrote the opinion as if he didn’t do that. It agreed with him. It cited an old decision noting those fees are “to defray the costs associated with the provisions of services to probationers, as an alternative to prison. . . . suggesting a nonpunitive, regulatory purpose.” The Martin court also cited a case that said: “the primary goals of which are rehabilitation of a defendant and protection of the public; the fees themselves suggest more of a civil than a criminal orientation.”

Had Martin not been wrongfully convicted he would not have worried about an alternative to prison or needed rehabilitation nor would the public needed protection. Whether it was a civil or criminal assessment it is improper since he was innocent under our law.

Keep in mind if you have to go to court make sure the remedy you are hoping for does not affect the court’s pocketbook.



16 thoughts on “Ma Supreme Judicial Court Running Scared: How It Protects the Treasury

  1. Matt: I post here an unrelated post.
    Yes, many Russian Olympic Athletes have tested positive for Performing Enhancing Drugs at the last two Olympics. (what? about 120 out of 700 who competed? That’s not good. Agreed!)
    But historically a more magnanimous picture emerges of Russia:
    Here’s a table I found on the Internet showing Russia with 9 doping cases and the US with 8 over a 40 year period.
    IV. Olympic Doping Cases by Country, 1968-2010
    # of Doping Cases
    10 Austria
    9 Greece, Russia
    8 USA
    7 Bulgaria, Hungary
    5 Poland, Spain
    4 Germany, Sweden
    3 Great Britain, Mongolia, Norway, Ukraine et al
    2 Belarus, Brazil, Canada, Ireland, Italy, Japan, Puerto Rico, Romania et al
    1 Afghanistan, Algeria, Armenia, Australia et al.
    127 Total
    and Remember to factor in Russia and US large populations.

    1. Bill:

      You want to cozy up to Putin so you come up with some statistics that are absolutely meaningless. There was no program in the United States to provide dope to its athletes and then to cover it up. I am not talking about individual athletes but a national government. You seem to want to close your eyes to reality which puzzles me. It was not 120 cases, it was over a thousand across more than thirty sports with and extensive cover up by the state involved. Please see this:

      “Russian sports officials had been baffled by the task of hiding tainted urine. So, McLaren’s report shows, they asked the FSB intelligence agency — the successors to the KGB — to do it for them.” Who was a former KGB official and as President Obama said the other day nothing of this magnitude would be done in Russia without Putin’s approval.

      There is no magnanimous picture of Russia. They cheated in the Olympics with their officials giving the home team absurd scores when it was the Soviet Union and Putin has doubled down on this. I’m talking state action which few doubt; you point to individual actions. There is a difference. It is in the DNA of Russia to lie and cheat. Remember it denying that its troops had entered Crimea when it sent them in with unmarked vehicles and plain uniforms and claimed they were from another part of Europe.

      I’m really at a loss to think you want to have relations which such a nation. It is not a democracy. There are no freedoms to assemble or speak. The media is under Putin’s control. Putin has noted that America is a force for evil which you seem to agree. You say we are provoking Russia with a defensive battalion of troops (a battalion is less than 1,000 troops) while they have several divisions (a division is about 15,000) lined up opposite the Balkan states. I really don’t get it.

  2. Kind of interesting. What would be more interesting is the authors thoughts on who Donald Trump is naming to his administration. Tweeting? It must work, spelled right I hope.

    1. Norwood:

      Hope you are well and enjoying the fine weather. I’m freezing here and perhaps that affects my mood. I will be posting some thoughts on the new team in town over the next few days. I’d say he has lined up a scary group of people to run the country and if you want wars he certainly has the right people in place.

  3. Well, at least it’s a $780 federal and state income tax deduction for a loss.

    And if denied it will make good appeal fodder.

  4. Marcy had another circuit court judge in his pocket, named, Wilson. Wilson walked Harry Aleman out of a murder charge. Marcy was doing a hell of a business in acquittals. Judge Wilson killed himself rather than take a bust. It was a case of the bitch move. Nobody was sorry to see him go.

  5. Matt: A summary response to yesterday’s issue: If I posted it yesterday, it would have been lost behind Msfreeh’s post.
    Don’t question the CIA? Don’t remember the Maine, the Gulf of Tonkin, Weapons of Mass Destruction, Mosadeq in Iran, Diem’s assassination, Bay of Pigs propaganda? Don’t remember Hillary’s promise of a no-fly zone to the rebels in Syria? How many more easy wars and regime changes is the CIA going to promise us?
    Disparity between rich and average worker in Russia? How about economic disparities in our own country, in China and around the world?
    Worried about Russian nukes on Russian territory? How many US nuclear weapons are stored in Europe (Italy, Belgium, etc., look it up!).
    How many US troops on Russia’s borders? How many Russian troops on US borders?
    Russia intervention in Syria in late 2015? We intervened and began bombing a year earlier. The Syrian Civil War, instigated by US/NATO/Oil Sheiks ( a photocopy of the Libya fiasco) began in March 2011. Hundreds of thousands died while Syria alone fought Isis, Al-Nustra and US-backed rebels. Russia has been more effective killing Isis and Al-Nustra. Russia may have killed more civilians than US/NATO/Arab coalition, but in a modern civil war, civilians always suffer.
    DEATHS IN YEMEN attributable to US? as reported in Slate:
    “A minimum of 10,000 civilians have been killed or wounded in the U.S.-backed war in Yemen, according to the U.N. humanitarian coordinator. Since the Saudi-led coalition began its bombing campaign in Yemen in March 2015, there has been an average of 13 civilian casualties a day, according to the U.N. Office of the High Commissioner for Human Rights.
    The U.N. and human rights organizations have thoroughly documented atrocities committed by the Western-backed coalition and have accused it of committing war crimes. Despite these reports, the U.S. continues to reaffirm its close alliance with its repressive Saudi ally and sell it weapons. About 3,800 Yemeni civilians have been killed and more than 6,000 have been injured in the war, according to the U.N.”
    Others say over 10,000 civilians dead thanks to American bombs and American refueling Saudi planes.
    Make peace, not war. Stop war-mongering!

    1. Bill:

      Tell me how to make peace with al Qaeda and the Islamic State.

      Here is Samantha Powers at the UN: “We condemn the shelling of civilian areas into western Aleppo. It’s outrageous. Is Russia prepared to condemn the shelling of and the aerial bombardment of eastern Aleppo? Does Russia believe that all the children who are being killed in eastern Aleppo are themselves al-Qaeda members? Is that what happens – you come out of the womb and you’re an al-Qaeda member right from the beginning? Of course Russia can’t condemn the shelling and the bombardment – systematic aerial bombardment – of eastern Aleppo, because Russia’s carrying out the systematic bombardment of eastern Aleppo. Because Russia has brought to bear in the conflict weapons that even a brutal Syrian regime had never used before. These bunker-buster weapons that are designed to get families who are huddled, hospitals that have had to be rebuilt several stories down in basements. These weapons are just designed to target people burrowed in the ground. They’re not designed for terrorists. They are designed to militarily conquer eastern Aleppo by making the civilians relent and cry uncle.

      What is so remarkable and troubling about the presentation we’ve heard today, is that what Russia really wants from the UN is credit. Congratulations Russia, you’ve stopped for a couple days from using incendiary weapons. Thank you for not using cluster bombs in civilian areas. Thank you for staying the hand of brutality with regard to bunker buster weapons. You don’t get congratulations and get credit for not committing war crimes for a day, or a week. That’s not how the international system is structured, and nor should it ever be.

      If you want an indicator of Russia’s intentions, you heard from Under-Secretary-General O’Brien – there’s the leaflet that Russian and Syrian planes passed out. Because what is said in the Council – which sounds so benevolent you would think Russia was like the Red Cross, and then there’s the leaflet which is what they put into the actual theater where civilians are living and are desperate.

      “This is your last hope, save yourselves. If you do not leave these areas urgently, you will be annihilated.” Annihilated. “We have opened for you safe passage to exit. Make a quick decision. Save yourselves. You know that everyone has given up on you. They left you alone to face your doom and nobody will give you any help.” Will the Russian Ambassador state for-the-record that Russia had nothing to do with these leaflets, which came out of Russian planes and came out of Syrian planes? Those of you on the Council who support the Syrian regime, is this a leaflet that you also would throw your weight behind? . . . look at the pictures of what happened in Haas today. Just look at the pictures. Look at the kids carrying their backpacks, frozen, as they attempted to go to school before being hit either by the Russian Federation or the Syrian regime. More than a dozen parachute bombs. On a school. Today.”

      That’s your peaceful Russia.

      There aren’t many people in America, or at least there weren’t many before Trump came along, who thought that the American rights and values were the same as in Russia. I can’t remember many Gulags in America; or forced hungers, or massive executions but perhaps you can point to them. I don’t remember America seeking to capture territory or enslaving nations, maybe you do. And what about that free press in Russia and the public demonstrations that seemed to disappear; did that happen in America.

      Was it war mongering to fight the Nazis? Was it war mongering to protect South Korea? Should America have stayed out of all wars and let the Nazis take over Europe, the Japanese the Far East, or the North Koreans the whole peninsular. How is the CIA (and all the other intelligence agencies) promoting a war by telling us that Russia is hacking our elections and picking out people to support. Or, are you like Trump thinking all that is being made up.

      How come you don’t mention the war crimes Russia, Syria and Iran are committing in Syria. Would you be happy if Yemen fell into the Russian, Iranian, Iraq, Syrian Shia block of nations? Doesn’t Saudi Arabia have a right to defend itself from Yemen which is on its border. The Russians and its Syrian allies have murdered more in Aleppo than all the people who died in Yemen but you don’t mention that.

      No, civilians do not always suffer the way the Russians have murdered them. Don’t you think we could have easily conquered Mosul if we used the Russian tactics. Instead we are moving slowly trying to protect as many civilians as possible. No one says America is perfect but it is hard to listen to someone tell me that it is no better than Russia.

  6. Chi-town just took a hit for 22 million. A ranking member of the El Rukhn Temple was wrongfully convicted after detectives on the case concealed evidence from the defense. Hidden files concerning other possible perpetrators were discovered buried in the Wentworth area CPD station. It’s a strange case. In the original proceedings, the fix was in. Circuit Court Judge Tom Maloney had been bribed. In his court, special defendants would ask for a bench trial instead of a jury. Maloney would dismiss on a technicality. You could buy that guy for ten thousand, seems cheap. Bill Swano represented many of the defendants. He charged twenty for the fix. He’d give ten to one of Maloney’s bailiffs for the judge. I figure Bill had to kick some of the take up to Marcy, downtown. I’ve always wondered how much his retainer was, over and above the supposed twenty K bribe, and, whether he had to kick some of that, also. The Rukn case came up late in the game, after the Feds were on to the scheme. Rat bastard R Cooley took the whole thing down to escape gambling debts he owed to the arm. The Rukns went into court thinking they had play, but, Maloney got paranoid of the G, and, returned their dough. He then convicted both guys of murder in the first, and sent them to the death house. One of the guys survived and is living to spend his millions.

    1. Khalid:

      Tragic tale. Any idea what happened to Bill Swano or Judge Maloney. What was the story with R. Cooley – how was he involved with the scheme. Hard to believe such things happen.

      1. Bill lives in Michigan these days.

        Cooley has a web-site. He claims to have sunk the outfit and parades around like a hero. He did sink Pat Marcy and his crew, but, he’s no hero. He makes the claim that he decided to cooperate because he was asked to clip a CPD officer. Nobody knows anything about that, but, everybody knows he was in big to the books, and, owed juice guys more dough than he’d ever have. Cooley was an ex-cop himself. Bill got a bunch of cases referred to him by Cooley. When Cooley rolled, he took down Bill with the rest of the guys.
        Because Pat Marcy had a couple of ILL Circuit Court judges in his pocket, he could fix everything from traffic tickets to murders. Maloney and Wilson got caught up, but, there may have been more judges involved. Wilson killed himself when the Feds closed in. I don’t know happened to Maloney after he finished his bit in the BOP. Bill is doing fine, developing RE in the upper thumb of Michigan. He’s done with the Chicago scene.
        It’s piggy-move-up time in Chicago. Albert is at bat. Sal C is warming up just behind him. The Feds are working hard to take down Albert. Sal is being patient and biding his time. If he doesn’t get taken off the count, he’ll eventually get the big seat. Things work a little different out here.

  7. Matt: We’re used to judicial double-talk and travesties of justice perpetrate by the justices themselves in Massachusetts. For example, see Boston’s three-years debacle with the Veterans’ St. Pat’s Day Parade. The Vets were put through the wringer by state judges, federal judges and administrative law judges, who just couldn’t decide whether a parade was protected free speech.
    But . . . I read about the Town of Ayer Mass which was successfully sued in Federal Court for $10 million dollars for the wrongful imprisonment of Kenneth Waters. (They made a movie about it: “Conviction.” I didn’t see it.)
    I wonder if any of those folks wrongfully convicted due to Annie Dookhan will seek Mass Cash from the Feds.
    P.S. I understand Mass recently passed a wrongful imprisonment statute limiting compensation to $500,000, but you have to file within 2 years of a judge’s decision, or so I’ve read.
    Let’s see Mass Courts wiggle out of this one.
    The Annie Dookhan Toll: Governor’s Report: 40,000 cases; Prosecutors estimate:20,000 cases; as of @ end of 2014: 900 petition for freedom; 500 set free.
    Legislator sets up $30 million fund; As of @ 2015, they pay out $15 million in compensation.
    I guess folks are settling for 10 or 20 thous and waiving their rights to sue civilly in federal court.

  8. I am amazed that they are letting him off the hook at all, he did plead guilty.
    This reasoning is used to keep many DNA exonerated people who where coerced or extorted into pleading guilty for rape, or even murder. The fact that 95% of criminal cases are pleaded out to a “lesser” charge allows the injustice to continue, if necessary. The old adage , The US justice system is not perfect , but it is the best, at this point needs to be readdressed.

    1. Daniel:

      It is typical of Massachusetts. It is lazy justice looking for the simple way out. We delude ourselves into thinking our justice system is anyway near the best. It has not changed in 100 or so years. No one has an incentive to change it. The pay is the same whether you do or don’t so why bother.

Comments are closed.