The Kickham Comment - Boston Criminal Attorney Blog
Courts – especially appellate courts – usually exist to apply the law, not advocate for specific changes in the law. Advocacy of that nature is typically the responsibility and territory of legislators, lobbyists and activists.
So it was with not a small amount of notice in the legal community in Massachusetts, that two Justices of the Supreme Judicial Court (SJC,) yesterday took the unusual step of advocating that the Massachusetts Legislature enact a change in a crime-fighting law that has existed since the late 1960’s. Enacted in 1968, this law is a wiretap law, which allows police and law enforcement investigators to use wiretaps only when the targets of the investigation are engaged in organized crime. In the case that was before the court for review, a man was recorded on tape admitting to a 2007 drive-by killing in Brockton. Prosecutors attempted to use the tape against the defendant at his Superior Court trial, but the tape recording was excluded from evidence by the trial judge, who ruled that the defendant’s activities did not fall under the definition of “being in connection with organized crime.” The Commonwealth appealed her ruling, and the SJC agreed to hear the case.
In a 7-0 ruling, The SJC stated that the language of the existing statute makes clear the specific type of criminals that police officials are allowed to surreptitiously tape record: Individuals in “a continuing conspiracy among highly organized and disciplined groups to engage in supplying illegal goods and services.” In the Tavares case, the court found that while this murder suspect (Tavares) and two other suspect under investigation by State Police were part of a “putative street gang,” Tavares did not qualify as being an “organized crime” figure. They concluded this because prosecutors did not introduce evidence that Tavares was part of what Massachusetts law describes as a “pecuniary enterprise, such as drug, gun, or contraband trafficking, or promoted some other unifying criminal purpose.”
While a lot of people won’t like this, Justice Robert Cordy wrote that street gang members enjoy the same legal rights as any other person in Massachusetts, and absent police and prosecutors producing the type of evidence that the law requires, wiretap evidence is inadmissible in criminal trials where the defendants’ activities don’t meet the definition of being engaged in “organized crime.”
Criminal defense and appellate lawyers know how to read between the lines, and it was clear that among the 7 justices voting here, more than one was holding his nose as they voted on this case. They were upholding the law, but it was clear that it wasn’t a pleasant process (as many of these tough decisions aren’t pleasant.) But two of the Justices, Ralph D. Gants and Judith Cowin, took the unusual step of writing a separate but concurring opinion, in which they openly urged the Legislature to wake up and change this law, so that it can be applied to appropriately prosecute street gangs.
In writing a forcefully worded concurring opinion, Justices Gants and Cowin strongly suggested that the legislature should delete five words from state law, which would have the effect of applying the law to members of street gangs, thus rendering secretly recorded conversations of such gangs admissable in court. “The legislative inclusion of five words, ‘in connection with organized crime,’ means that electronic surveillance is unavailable to investigate and prosecute the hundreds of shootings and killings committed by street gangs in Massachusetts, which are among the most difficult crimes to solve and prosecute using more traditional means of investigation,” Gants wrote (emphasis added here.) He and Justice Cowin urged the legislature to correct this omission.
In the interests of fairness and honesty, police officials and prosecutors have a point to make here. The more serious Massachusetts drug crimes and violent crimes, are very often the product of street gang activity. As a Boston, Massachusetts criminal defense lawyer, I do not disagree with this approach, as long as any change in this statute is done in accordance with appropriate legislative procedure, and after requisite hearings before the appropriate legislative committees, including the Joint Judiciary Committee.