As I said in Part One of this Post a few days ago, a lot of people, especially some talk radio hosts, have placed the blame for this tragedy squarely on judge Superior Court Judge Thomas McGuire, lambasting him as a “Hack Democrat judge.” I don’t think that was the problem here, but I do think that liberal judicial thinking and liberalism in general in the judiciary, can be cited as a source of this problem. But in my view as a Boston Massachusetts felony defense lawyer, the key to seeing through to the real source of this judicial liberalism, which caused Mickey Rivera to be released on bail in the first place last fall (2017), isn’t so much the judge who first released Rivera last fall (judge McGuire), as it was the Supreme Judicial Court’s instructions to Massachusetts judges on bail procedures, in its August 2017 decision in Commonwealth v. Brangan.
The SJC’s Brangan decision focused almost exclusively on one factor that lower court judges setting bail should consider – whether and how much a defendant can afford to pay. As a Boston area criminal defense attorney, I fight hard for my clients, and I am well aware of the constitutional and procedural issues relating to bail. But I don’t believe that a judge’s primary focus should be the answer to the question “So, defendant Jones, if I were to set bail here, what can you afford to pay?” Whether or not bail is set for a criminal defendant, and how much, should not be brought down to the level of the proverbial car salesman’s question, “What do I have to do to put you in this car today?” Equal emphasis should be “What are the nature of the criminal charges here?”; “What is it that the defendant is alleged to have done?”; “Was any violence involved?”; “What kind of harm occurred in connection with this arrest or incident?”; “What kind of criminal arrest history does the defendant have?”; and “What are the totality of circumstances here?” Very importantly, those totality of circumstances include how much initial evidence the Commonwealth has against the defendant: Is that initial evidence weak? Strong? Compelling? Doubtful? Were there witnesses involved? What is the nature of the evidence?” To subordinate critically important and relevant questions and considerations such as these, to one overriding question: “What can the defendant afford to pay for bail?” is in my view as an experienced criminal defense attorney, dangerous public policy and judicial guidance. Those factors should not be subordinated to one primary question – how much a defendant can pay for bail? – they should be equal to it. Continue reading