The Kickham Comment - Boston Criminal Attorney Blog

In my previous post, I explained the Massachusetts SJC’s ruling last week on the contretemps surrounding the question of whether or not the Massachusetts Commission on Judicial Conduct can allowably inquire into a judge’s reasons for his or her rulings. The issue arose because the Judicial Conduct Commission had launched an inquiry into one of the judges in the Boston Municipal Court following allegations of bias filed by the Suffolk County District Attorney.

Surprisingly enough, as a Dedham, Massachusetts criminal defense attorney, I disagree with this decision. I know that my colleagues in the criminal defense bar will disagree strongly with me, but I can’t agree with this decision. My opinion isn’t pro-prosecution, nor is it pro-defense. Nor am in any way saying that judges should be required to explain their reasoning if litigants, prosecutors or defense counsel don’t like a particular judge’s ruling. Such would be ridiculous. The Judiciary was designed to be independent for good reasons. Under typical, day-to-day “normal” circumstances, I don’t believe judges should have to explain their reasoning to litigants, to disaffected parties, or to the media.

However, the circumstances presented in judge Dougan’s case are anything but “normal” – and I don’t think that an honest advocate for either side of this argument can claim otherwise. The SJC’s ruling here can just as easily be used against criminal defense attorneys one day. Or against minorities, or women. Consider this: What if a judge somewhere in Massachusetts were to routinely – in almost every case that came before him or her – rule against black defendants. Or against women. Or against the members of any particular ethnicity or group. Let’s assume a judge were to rule this way no matter the evidence, and let’s say it happened in almost 100% of the cases before this hypothetical judge. In such a circumstance, such a judge would be essentially unstoppable. And that is not good public policy.

Sorry I’ve been absent for a little while. With the summer waning and the heat still high, I took a few days off for the beach.

OK, back to work: The Supreme Judicial Court’s (SJC) ruling is finally in on the dispute surrounding the subject of whether the Massachusetts Commission On Judicial Conduct (otherwise referred to as the “Judicial Conduct Commission or “JCC“,) can inquire into the reasoning behind a particular judge’s decision (or decisions.) The Judicial Conduct Commission is the state government body that is empowered to investigate various allegations of wrongdoing by state court judges, whether that wrongdoing is on or off the bench. The operations of the JCC are highly secretive, for the purpose of protecting the independence of the judiciary and its members.

This ruling is sure to fuel a lot of talk radio time and fill a lot of space in the blawgosphere, so let’s get to it.

By now, most people know that Governor Deval Patrick has agreed to sign the “Three Strikes” crime bill that the Legislature originally delivered to him last week. He had sent the bill back to the Legislature with an amendment to provide judicial discretion in sentencing certain habitual offenders who have been convicted more than three times for almost 40 violent crimes. The Legislature rejected that amendment, very quickly.

Patrick claimed he requested the amendment after Supreme Judicial Court Roderick Ireland responded to Patrick’s written request for clarification of the Legislature’s final bill, opining to the governor that the law could lead to an overly-crowded appeals docket, given the lack of judicial discretion in the bill. Whatever his motivation, the Legislature kicked what many saw as his attempt to “water-down” the bill by allowing parole in certain cases instead of life imprisonment, right back at his doorstep.

I think the governor made the right decision in signing this bill as is. As Norfolk County criminal lawyer, as a rule I do not approve of mandatory sentences, and I have written previously about this subject in this blog. However, there can be exceptions to a rule, and I don’t see the objections or problems that are typically presented with mandatory sentence provisions, in this particular bill. The reason for that is that the only defendants who are going to end up in the situation of facing a mandatory sentence of life in prison without possibility of parole, are the worst offenders imaginable. Serial criminals who are extremely violent, and who have already been convicted three times or more for the most heinous, violent of offenses. Any defendant in that position has pretty much already earned his stripes as a serial, unrepentant, violent criminal. Such people belong behind bars for life. Yes, I can say that, even though I’m a criminal defense attorney. My chief concern is that every defendant, no matter what he or she is charged with, receives a fair trial with a competent defense attorney. If those requirements have been met and a defendant has been convicted three times of extremely violent crimes, I don’t have a problem with a mandatory sentence of life in prison with no parole.

In my profession as a Norfolk County criminal defense lawyer, there are times when someone I am representing – the defendant – under my advisement, will enter a plea of “Admission to Sufficient Facts.” Since most people do not know what this means, here is a brief overview.

When a defendant enters a plea of “Admission to Sufficient Facts,” he or she is, in essence, admitting that if the case were to go to trial, the prosecution would be able to present sufficient evidence to secure a guilty finding, from either a jury or judge. Instead, subject to the prosecutor’s agreement, the defendant enters a plea of “Admission To Sufficient Facts” instead of actually pleading guilty. This procedure comes from an old trial system and it has been abolished by the state legislature in Massachusetts. However, it is still used by defendants as a way for the defendant’s case to be continued without a guilty finding (which I’ll further explain in a moment). This form of plea may be refused by the judge, or it may be conditionally accepted upon the compliance of the defendant with certain requirements advanced by the prosecution.

The types of charges that a defendant to plea Admission To Sufficient Facts to are several. They can include, as a partial list, armed robbery, larceny by stealing, OUI (drunk-driving), domestic violence and kidnapping.