Mass Developments

Mass. High Court: Prosecutor’s Words May Be Used Against Him

fineartamerica.com

fineartamerica.com

In a case decided this past January, the Supreme Judicial Court (SJC) held that a prosecutor’s closing statements may be read to a jury if the prosecutor later changes his argument.

That case, Commonwealth v. Kevin Keo, involved the murder of Christian Martinez who was shot and killed outside of a restaurant in Lynn back in November 2007. Mr. Keo was charged with the killing, but no one actually saw who fired the bullet. The prosecutor had earlier argued at the trial of Keo’s codefendant that the codefendant, not Keo, was the triggerman. The jury apparently didn’t buy it and convicted the codefendant only of second degree murder under a theory that he was a joint venturer, not the shooter.

With that in mind, six months later the very same prosecutor switched tracks and argued at Keo’s trial that Keo was most definitely the shooter. “That’s what all the evidence shows,” he said, “[i]t couldn’t have been [the codefendant].”  Mr. Keo was ultimately convicted, and he appealed.

The SJC issued a 4-3 decision, written by outgoing Chief Justice Ireland, upholding the conviction. The majority rejected Mr. Keo’s claim that the prosecutor violated his Due Process rights to a fair trial by allowing the prosecutor to pursue two factually inconsistent theories. A prosecutor may switch tracks so long as the “core” of his case remains the same and he does not manipulate evidence or act in bad faith. In both Case 1 and Case 2, the prosecutor told the jury that it didn’t have to identify the triggerman but rather could convict if it found that the defendant participated in the crime with the intent to kill. This was done according to the “Zanetti rule” (jury may convict if it finds that defendant participated in the murder, alone or with others, with the intent to kill).

A closer call was whether or not defense counsel at Keo’s trial was ineffective for failing to seek admission of the prosecutor’s prior argument under a rule which allows for admission of out-of-court statements made by a “party opponent.” Defense counsel could have then quoted the prosecutor as saying that Keo was not the shooter. The majority found that counsel was not ineffective because the court had never squarely decided that prior closing arguments would be admissible in this type of situation. But even if it was, it would not have been admitted at Keo’s trial because the prosecutor’s two arguments were not inconsistent “as a matter of law.” Even though the prosecutor argued factually inconsistent theories, the prosecutor also reminded the jury that it didn’t have to positively ID the shooter and could convict under Zanetti principles. And even if the prior arguments had been admitted, it was not likely to have influenced the jury.

This engendered more than a little bit of head scratching from the dissent, led by Justice Gants, which pointed out that the prosecution’s case would have been “immeasurably more difficult to prove” if the jury was told that the government had previously argued that Mr. Keo was not the shooter. Moreover, if the codefendant was the real killer, as the defense argued, then to get a conviction the prosecution would have to go an additional step and prove that Keo had planned it that way, or that he instructed his codefendant to fire the shot. But evidence suggested that Keo was not within range of the victim and was not near his codefendant at the time the victim was killed.

To return to the headline of this post, – the upside is that the majority squarely overruled Commonwealth v. Arsenault which held that prior closing arguments were not admissible. It also sounded a cautionary note:

[P]rosecutors, in future cases, should proceed with caution when asserting inconsistent arguments in different trials involving the same crime, assuming no ‘innocent explanation,’ significant changes, or new evidence have come to light. We note that, particularly after Commonwealth v. Zanetti, supra, there is no need for a prosecutor to emphasize principal liability. If a prosecutor does so and the position is inconsistent with what he formerly argued at another trial for the same crime, he does so possibly at his own peril.

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NY Limits Solitary Confinement – Mass Should Follow Suit

Boston Globe

MCI-Cedar Junction – Boston Globe

The state of New York has agreed to limit the use of solitary confinement for juveniles and the disabled, and will add durational limits and issue new guidelines to curtail the use of forced isolation. As we wrote in an earlier post, according to a recent court filing by the ACLU in Massachusetts: 

decades of scientific research, have documented instances where isolated prisoners “become so desperate for relief that they . . . set their mattresses afire . . . burst out in a frenzied rage of aimless destruction, tearing their sinks and toilets from the walls, ripping their clothing and bedding, and destroying their few personal possessions in order to alleviate the numbing sense of deadness or non-being and to escape the torture of their own thoughts and despair.” A 2007 Massachusetts lawsuit documented numerous instances of suicide and self-mutilation among inmates held in segregated housing. The practice has been banned by most nations and is condemned by the United Nations Committee Against Torture. A spate of recent states have revised and significantly reduced its use and the Justice Department is currently reviewing its application in federal prisons.

As the result of the federal law suit in New York, a host of other reforms will also be instituted, including the appointment of an assistant commissioner and a research expert to monitor and oversee the implementation of disciplinary practices. New York is the largest prison system in the United States to take these steps towards progress.

Massachusetts would do well to follow suit, particularly in light of the overuse and abuse in imposing solitary confinement and its well documented link to increased prison violence. Prisoners in Massachusetts can be sentenced for up to ten years in solitary confinement as the result of a hearing process which is lacking of basic procedural safeguards. I personally worked with and got to know a Massachusetts prisoner who spent 8 years in solitary confinement on dubious evidence connecting him to prison violence. He was finally released after psychiatrists at the Bridgewater State Hospital concluded that his personality and psychological well being would be totally destroyed were he to complete his 10 year term.

Here in Massachusetts we ought to look at the reforms being instituted in places such as New York and in several traditionally conservative southern states and we should get in the lead instead of lagging behind when it comes to smart prison policy.

A Minor Check on Solitary Confinement

April 4, 2013

Souza Baranowski Super Max Prison

Souza Baranowski Super Max Prison

Edmund LaChance was placed in the “Special Management Unit” (SMU) at the Souza-Barranowski Correctional Center after throwing a cup of pudding at another inmate in December of 2005.  For more than ten months, LaChance was held in the SMU in isolation and forced idleness.  He was placed in a small cell with a toilet and white walls, allowed one hour of recreation in an outdoor, unsheltered cage, two no-contact visits lasting no more than one hour and was shackled hand and foot and accompanied by a two guard escort while outside of his cell. He was never informed as to the duration of his confinement. Instead, he received periodic letters stating various reasons as to why he was on “awaiting action status.”

The destruction which solitary confinement works upon the human personality and its link to increased prison violence is now well-known. In the recent case of LaChance v. Commissioner of Correction the Supreme Judicial Court handed a mild victory to those seeking to scale back its use in Massachusetts.

Decided last November, LaChance found that the Department of Correction must provide persons held in solitary confinement, as a matter of due process, a hearing and written decision stating the basis for such confinement at least once every 90 days. Edmund LaChance’s lawsuit argued that his indefinite confinement violated the state and federal constitutions and the DOC’s own regulations. Prison authorities had already set out rules providing hearing rights to prisoners held in “disciplinary segregation.” Because LaChance was held in “administrative segregation,” they argued, these rules didn’t apply. The SJC rejected that argument holding that the “Special Management Unit” is solitary confinement by any other name. Under Supreme Court precedent, those held in “extreme isolation” were entitled to procedural safeguards.

solitarywatch.org

solitarywatch.org

The remaining question, and perhaps the most significant one, was whether officials who placed him in the SMU could escape money damages on qualified immunity grounds. Ten years prior, the Massachusetts high court had held in Haverty v. Commissioner of Correction that due process protections apply when officials “segregat[e] . . . a prisoner in near solitary confinement, for no specified period[.]” Nonetheless, the court had never decided how long a prison could hold an inmate in the administrative loophole of “awaiting action status” without a hearing. Writing for the court, Justice Duffly drew the limit at 90 days. Because this was apparently a new rule the prison officials did not violate clearly established law and were therefore not personally liable.

Unfortunately, this decision continues the glacial pace toward civilizing prison conditions. As noted by the ACLU’s amicus brief in LaChance, decades of scientific research have documented instances where isolated prisoners “become so desperate for relief that they . . . set their mattresses afire . . . burst out in a frenzied rage of aimless destruction, tearing their sinks and toilets from the walls, ripping their clothing and bedding, and destroying their few personal possessions in order to alleviate the numbing sense of deadness or non-being and to escape the torture of their own thoughts and despair.” A 2007 Massachusetts lawsuit documented numerous instances of suicide and self-mutilation among inmates held in segregated housing. The practice has been banned by most nations and is condemned by the United Nations Committee Against Torture. A spate of recent states have revised and significantly reduced its use and the Justice Department is currently reviewing its application in federal prisons.

Edmund LaChance prevailed on the merits of his case but one has to wonder how much solace he takes in the SJC decision to allow authorities to check-off an inmate’s confinement once every 90 days. Even though the illegality of solitary was not squarely before the court, the Justices could have acknowledged the emerging consensus on what Charles Dickens once called “this slow and daily tampering with the mysteries of the brain[.]”

(This article first appeared on MassAppeals.org.)

High Court’s Ban On Juvenile Life Sentences Must Apply To Old Cases

The recent Supreme Court decision of Miller v. Alabama struck down mandatory life-without-parole sentences for juveniles who participate in murder. As a result, the Massachusetts murder statutes are no longer valid for children. The next question: what happens to the nearly 80 defendants in Massachusetts prisons convicted and sentenced as juveniles under the illegal laws?

The Massachusetts Legislature may propose a solution in the next couple of months. Whatever bill becomes law, it will likely commute the sentences of the Miller kids to something less than natural life.

But if the Legislature fails to act then the fate of these kids will be left to local courts. The big issue for the judiciary will be whether Miller is retroactive — meaning that it applies to closed cases. I think there are two reasons why it must:

First, the Supreme Court itself applied Miller retroactively to the defendant in the companion case, Kuntrell Jackson. Mr. Jackson was 14 when he was charged with felony murder (he was not the shooter).  He was later sentenced to mandatory life in prison under an Arkansas law. Critically, his conviction was finalized under state law in 2004 when his direct appeal was denied and his conviction affirmed by the Arkansas Supreme Court. In the wake of Roper v. Simmons, Jackson filed a state habeas petition in 2008 which he eventually appealed all the way up to the U.S. Supreme Court.

The Supreme Court struck down Jackson’s sentence of mandatory life imprisonment. In overturning his conviction, the Supreme Court retroactively applied its ruling in Miller to Jackson’s case. Therefore, either the rule in Miller is retroactive for all prisoners with finalized convictions or Mr. Jackson is the only person in the United States entitled to retroactive relief. (Stranger things have happened; see the PadillaChaidez saga). But, barring this, the Miller kids in Massachusetts must receive similar treatment.

Kuntrell Jackson

Kuntrell Jackson

Second, the Supreme Court has long held that a substantive change in criminal law must be applied retroactively. In contrast, when constitutional law dictates a change in criminal procedure by reworking the mechanics of trial or sentencing, that rule is not normally applied to old cases.  Miller clearly involved a substantive constitutional finding.

The rationale behind limiting retroactive application of procedural law stems from society’s interest in finality. That is because, according to Justice Frankfurter in Teague v. Lane, “[w]ithout finality the criminal law is deprived of much of its deterrent effect.” In addition, past procedural errors are apparently less reason for concern. The reach of habeas relief is not defined “simply by reference to a perceived need to assure that an individual accused of crime is afforded a trial free of constitutional error.” In contrast, substantive changes in the law receive retroactive effect because, “they necessarily carry a significant risk that a defendant . . . faces a punishment that the law cannot impose upon him.”

How do you know when a change is substantive? Substantive changes include decisions which forbid a certain type of sentence because that sentence is cruel and unusual or because the defendant doesn’t deserve it. The Supreme Court explained this in Penry v. Lynaugh, noting that substantive changes include those rules which prohibit, “a certain category of punishment for a class of defendants because of their status or offense.”

In Miller, the Supreme Court struck down a certain penalty (mandatory life-without-parole) for a specific defendant (juveniles) because of their youthful status. As such it created a substantive change in the law. A juvenile sentence of automatic life-without-parole is “a punishment that the law cannot impose.” All 80 defendants in Massachusetts must therefore get at least a new sentencing hearing under Miller.

Much is at stake in this definitional skirmish. If the Legislature fails to act then the courts may be forced to decide whether juveniles convicted of murder will ever get the chance to face the Massachusetts Parole Board. (Whether this entails a “meaningful opportunity for release,” as required by Graham v. Florida, is another story.) Despite the rationales above, several state supreme courts have already held that Miller is not retroactive.

The real question for the court, however, is far simpler: should a child be grandfathered-in to an illegal sentence?

In all of this legalizing, the ultimate message of Miller threatens to become lost. Sentencing children to die behind bars absent any consideration of mitigating circumstances is cruel and unusual. The Miller Court, relying on neuroscience, developmental psychology and “common sense . . . what any parent knows,” found that children are constitutionally different from adults. They “have diminished culpability . . . greater prospects for reform. . . [and] are less deserving of the most severe punishments.” No judge and no law can mandate throwing away the key on a child, even one who commits murder, because “incorrigibility is inconsistent with youth.”

(A version of this article first appeared on MassAppeals.org.)