Criminal Defendant Out On Bail Kills Three on Cape Cod: Part Two of Two

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.

The Brangan ruling speak to very lofty, laudable and admirable legal jurisprudential concepts: Quoting from that ruling:A bail that is set without any regard to whether a defendant is a pauper or a plutocrat runs the risk of being excessive and unfair.” That is both eloquent and cerebral; almost Shakespearean or Dickensian. But lofty jurisprudential thoughts, arrived at within a vacuum of realism and the violence that pervades so many of our communities, can easily be rendered to the confines of idealism dis-attached from the real world of criminal law, law enforcement and prosecution. And it is here where an honest observer would hopefully reply to that observation, by pointing out the fact that in its Brangan ruling, the SJC did indeed see ahead to the very real possibility that judges will need to subordinate the issue of how much a given defendant can pay, to often more compelling questions – and the court specifically gave judges the ability to deny a defendant low bail and hold him/her in custody, “if other relevant considerations weigh more heavily (than granting the defendant affordable bail)”; (edits added). Quoting that passage of the Brangan decision in full, the decision cautions judges that “When “setting the amount of bail, whether under G. L. c. 276, § 57 or § 58, a judge must consider a defendant’s financial resources, but is not required to set bail in an amount the defendant can afford if other relevant considerations weigh more heavily than the defendant’s ability to provide the necessary security for his appearance at trial.(Underline emphasis added.)

So, why didn’t judge McGuire use this power? In my 25 years of experience as a Massachusetts bail attorney, I believe there were likely two reasons that were operative:

1) While the prosecution did oppose releasing Rivera on bail last September, the Assistant District Attorney didn’t specifically ask the judge for a “Dangerousness Hearing”, pursuant to the Massachusetts Dangerousness Statute: This is a special request that prosecutors can file a motion for, when they believe that either the safety of general public, or a specific individual’s safety, would be threatened if the defendant were released on bail. A judge does not have the power to invoke this type of hearing on his or her own initiative – only the prosecution has this ability. Why the prosecutor who argued against Rivera’s release, did not do this, I don’t know.  But when he or she didn’t, judge McGuire’s hands were pretty much tied – or at the very least, his options on the release motion became extremely limited. 

2) In almost 25 years of practicing Massachusetts criminal defense law, I’ve been in front of a lot of judges. They are quite human, and subject to the same human hopes, fears, concerns, and worries that many of us are. When judge McGuire ruled on the Motion for Release that Rivera’s attorney filed – complete with an attached copy of the then-one month old SJC Brangan ruling – I believe that judge McGuire may have felt understandable discomfort in refusing to release Rivera: Rivera had already been determined by the court to be indigent; that was not at issue. He had already been held for 2 years. The SJC’s ruling was almost fresh off the presses. It is entirely possible that judge McGuire did not wish to appear that he was “flouting” or ignoring the SJC’s order to judges like him. I’m not saying that I know this to be a fact. I am saying that, from my side of the bench as a criminal defense attorney, it would not be outside the realm of strong possibility.

This tragedy has caused enough pain – and will for many years ahead, for the families and persons impacted. I believe that, in view of this tragedy and the public debate that it has created surrounding the issue of bail standards, it would be appropriate if either MCLE held a judiciary-led seminar to clarify for both judges and lawyers this extremely important legal issue, or if the Massachusetts Judges Conference hold internal discussions about it, among themselves, with the goal of re-emphasizing the ability of judges to refuse to set an affordable bail for a defendant and hold him or her in custody, when, quoting the SJC’s Brangan ruling, “other relevant considerations weigh more heavily than the defendant’s ability to provide the necessary security for his appearance at trial.

The events that led to this tragedy, should not be allowed to repeat again. That is the type of injustice, that our justice system is supposed to prevent. Some readers might be surprised that a criminal defense lawyer folds this opinion.  Don’t be.  I don’t want dangerous felons free on the streets, any more than you do.  I do not believe that view to be either conservative or liberal.  I believe it to be just.

P.S.: Aug. 8, 10:00 PM –  Relative to my suggestion above that either the SJC or a continuing legal education organization could provide helpful guidance by issuing clarifying discussions or instructions about how such a tragedy as occurred here might be prevented in the future, it looks like the SJC has done just that (albeit in its own way):  The Boston Globe ran an Op-Ed piece today by the Chief Justice of the SJC, Ralph D. Gants, titled “When it comes to setting bail, judges can’t predict the future – or ignore the law.”  While the piece addressed a ‘hypothetical’ scenario of a Massachusetts District Court judge faced with trying to decide whether or not to release on affordable bail a defendant arraigned on domestic abuse charges, and while the piece did not directly reference the release on bail of Mickey Rivera and the 3 deaths that resulted here last week, it was clear to me that Chief Justice Gants was speaking to this case.  His hypothetical scenario very closely resembled the choice that judge McGuire faced, especially down to the scenario where the prosecution did not ask for a “Dangerousness Hearing”, thus preventing the judge from raising that issue on his or her own.  In so doing, I believe that Chief Justice Gants was, justifiably, adding context to judge McGuire’s limited options in releasing Rivera under the circumstances that he faced.  And I believe that Justice Gants was reminding prosecutors across the state, of the importance of the “Dangerousness Statute”, and the equal importance of using it when the circumstances and facts call for it.  Believe me, the DA’s offices across Massachusetts will have copies of this Boston Globe Op-Ed piece sent to every one of their prosecutors – with a reminder to use this statute vehicle when necesssary.