Judge could dismiss charges against more than 100 defendants without lawyers amid work stoppage
However on Monday, the committee filed an emergency petition asking the Massachusetts Supreme Judicial Court to order Juvenile Court judges in six counties to follow similar protocols and dismiss charges against juveniles who have gone too long without legal representation.
There 'is an ongoing systemic violation of indigent [youths'] constitutional rights to effective assistance of counsel due to CPCS's incapacity to provide such assistance through its staff attorneys,' or through court-appointed bar advocates, the lawyers for the committee wrote.
Attorney Shira Diner, former president of the Massachusetts Association of Criminal Defense Attorneys, said the push to dismiss cases against juveniles and adults 'shows just how deep and severe this crisis is.'
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At the heart of this crisis is the work stoppage
'We're going to have cases closed without resolution. I would urge everybody who cares about public safety to be in support of our bar advocates and help them get back to work,' Diner said.
Governor Maura Healey told reporters last week that she would 'do everything I can to advocate for a swift resolution' to the work stoppage. She said bar advocates 'deserve to be paid a fair wage' and 'it's not a good situation where people don't have representation and are being released.'
Last month, legislative leaders sliced a measure from their $61 billion budget plan that would have raised the pay for some, but not all, of the state's court-appointed attorneys. At the time, Senate President Karen E. Spilka said 'hard decisions had to be made,' but she looked forward to talking to bar advocates directly 'to hear what their issues are.'
On Monday, James Borghesani, a spokesperson for Suffolk District Attorney Kevin R. Hayden, said in a statement that prosecutors 'have done their utmost to oppose the release of serious offenders' since the work stoppage began.
The 45-day mark, which triggers the court-ordered protocols requiring hearings, 'represents a significant escalation in the threat to public safety, with cases involving serious assaults, domestic violence and other high-level offenses up for potential dismissal,' Borghesani said. 'The danger is only going to expand and compound as the stoppage drags on and additional defendants are released.'
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On July 3, Massachusetts Supreme Judicial Court Justice Dalila Argaez Wendlandt had ordered Suffolk and Middlesex counties to follow what is known as the Lavallee Protocols in response to an earlier emergency petition filed by the public counsel committee. The agency
represents about 20 percent of the state's indigent defendants and relies on some 2,500 bar advocates to take on remaining cases.
Under the protocols, if defendants who can't afford to hire their own lawyers aren't appointed one as required by state law, then a judge should consider releasing them. State law generally requires defendants be provided a lawyer within an appropriate time. The courts have established that time to be seven days for those in custody and 45 days for anyone charged with a crime.
In its latest emergency petition Monday, the public counsel committee said protocols should be expanded to include juveniles because the work stoppage was having a severe impact on them as well.
As of Friday, there were 101 unrepresented children charged with crimes in the juvenile courts in Essex, Franklin, Hampden, Middlesex, Norfolk and Suffolk counties, according to the petition. One juvenile was being held in custody in Suffolk County while the charges are pending, and the rest were released.
'As in District Court, there is a chronic shortage of private counsel in juvenile courts across the Commonwealth which has been exacerbated by the work stoppage,' the petition says. 'Without a specific end date to the work stoppage combined with the ongoing counsel shortages in Juvenile Court, increasing numbers of children will face criminal charges and detention unrepresented.'
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The petition says youths are afforded even more rights and privileges under the law than adults, including 'the opportunity to consult with an interested adult prior to any police interrogation,' making it critical that they immediately be appointed a lawyer once they are charged with a crime.
Youths can also request that their cases be dismissed prior to arraignment, requiring a lawyer be retained before then.
As such, the petition said requirements under the protocols should be even more stringent for juveniles than adults when it comes to lawyers. Youths may not be held for more than three days without counsel, the petition says,
and charges should be dismissed if a lawyer does not file an appearance on behalf of a youth within 15 days of the youth's initial appearance in court.
Also, according to the petition, no child may be placed in a diversion program prior to arraignment without consulting a lawyer about waiving their constitutional rights, which is required before entering such a program.
The SJC has yet to rule on the petition.
Shelley Murphy can be reached at
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