Rollins scores big win with SJC

IN THE FIRST big legal test of her reform agenda, Suffolk County District Attorney Rachael Rollins scored a decisive victory on Monday, as a justice of the Supreme Judicial Court ruled that a Boston judge had no authority to block her office from dropping charges against a protester arrested 10 days ago.

Justice Frank Gaziano ruled that Boston Municipal Court Judge Richard Sinnott overstepped his bounds last week when he denied efforts by prosecutors from Rollins’s office to drop charges against Rod Webber, one of three dozen counter-demonstrators arrested as they protested the August 30 “straight pride” parade in Boston.

“Fundamentally, the judge had no authority to ‘deny’ the Commonwealth’s entry of a nolle prosequi,” Gaziano wrote, referring to the Latin term for a prosecutor’s filing that charges will not be pursued in a case. “His effort to do so violated the Commonwealth’s constitutional rights…and infringed upon the separation of powers therein.”

“The prosecutor’s sole authority to determine which cases to prosecute, and when not to pursue a prosecution, has been affirmed repeatedly by this court since the beginning of the nineteenth century,” Gaziano wrote.

He cited a number of past cases establishing that authority, including a 1997 SJC ruling that “executive power affords prosecutors wide discretion in deciding whether to prosecute a particular defendant, and that discretion is exclusive to them.”

Gaziano said the only exception to that exclusive discretion accorded to prosecutors is a case of “scandalous abuse of authority.”

Rollins, at a press briefing at her office, called the controversy a “colossal waste of time,” saying “anyone who’s gone to law school knows there’s a separation of powers.” She added: “We are very, very happy that Justice Gaziano, using hundreds of years of precedent, essentially agreed with what we proposed.”

Christopher Basso, Webber’s attorney, called Gaziano’s ruling “a huge win” for his client. “This wasn’t a motion for the judge to allow or deny. This was the Commonwealth informing the judge they were not prosecuting Mr. Webber,” he said.

A spokeswoman for the Trial Court said Sinnott declined to comment on the ruling.

In hearings last week, Sinnott repeatedly denied efforts by prosecutors to dismiss cases against demonstrators facing non-violent charges. Rollins has said she is pursing cases against eight demonstrators charged with violent acts, including assault on police officers.

Rollins expressed indignation last week at the judge’s rulings, calling them “an unconstitutional abuse of his power.” She filed an emergency petition with the SJC to have Sinnott’s ruling on Webber’s case overturned. It was assigned to a single justice to rule on.

In a case similar to Webber’s, Sinnott refused to allow prosecutors to “nolle prosequi” the case of a woman charged with disorderly conduct and resisting arrest at the counter-demonstration. Her attorney, Susan Church, was cited by Sinnott for contempt and taken out the courtroom last Wednesday in handcuffs when, over the judge’s order to stop speaking, she tried to read citations from SJC cases making clear his inability to block prosecutors from dropping charges.

“The decision was both welcome and expected because the law is perfectly clear on this issue,” Church said on Monday. “This is what lawyers refer to as black letter law, meaning that it’s clear, unequivocal, and basic law.”

The cases resulting from the counter-demonstration have exposed tensions unleashed by Rollins’s election last year on a platform calling for major reform in the DA’s office. She published a list during the campaign of 15 lower-level offenses for which she said her default position, if elected, would be not to pursue charges.

The Boston police patrolmen’s union has denounced the policy, and the union’s vice president hailed Sinnott’s rulings last week.

Rollins is part of a wave of progressive prosecutors elected in several big cities across the country who have vowed to rethink the role of DAs after several decades of soaring incarceration rates. Rollins said her policy on lower-level offenses will be to seek alternatives to prosecution that she says too often saddle poor and, often, minority defendants with criminal records that stand in the way of landing jobs and housing.

In last week’s court hearings, Sinnott said he was denying prosecutors’ efforts to drop charges because they did not comply with provisions of a state law granting victims the right to appear at a hearing before charges are dropped. He also said Webber interfered with straight pride marchers’ exercise of their First Amendment rights to free speech.

Gaziano said disorderly conduct is an offense “against the public and not against a specific victim.” But even in a case with victims who are not notified, he wrote, “the judge had no authority to ‘deny’ the Commonwealth’s entry of a nolle prosequi.” The state statute concerning victims’ rights “does not trump the Commonwealth’s constitutional right to determine when to enter a nolle prosequi, nor vest that authority in a trial judge,” Gaziano wrote.

Gaziano also granted a request by the DA’s office to have Webber’s record from the arrest expunged. While the standard procedure in cases where prosecutors don’t pursue charges following an arrest is to have a record sealed, Gaziano cited past rulings that expungement is in order when there is evidence that the criminal record was created as result of “demonstrable errors by court employees.”

Defense lawyers say Rollins’s predecessors rarely pursued charges against people arrested at demonstrations. The police union vice president, Larry Calderone, seemed to confirm that in comments last week. That seemed to make the showdown with Sinnott an odd test of Rollins’s reform agenda.

Asked if she thought Sinnott’s motivation was based on disagreeing with her reform platform, Rollins didn’t answer directly, but suggested he would not be alone. “I think there’s a lot of people who do,” she said. “I would like to remind people that appointed individuals don’t get to infuse their opinion in matters where the people of Suffolk County have spoken,” she said of her election.

“Change is really hard, and there are lots of people that like the way the system’s working right now,” Rollins said. She defended her comments calling Sinnott’s actions an “abuse of power,” and said last week’s hearings brought to light “what a lot of poor people” and “black and brown people experience every single day with members of the judiciary.”

Asked whether she thinks Sinnott should continue to hear criminal cases, Rollins demurred, but said she would love to hear that question asked of Trial Court Chief Justice Paula Carey and other court officials.

“That’s not something I’ll comment on now,” she said. “I’ve had bad days before as well. I just don’t think this was his finest moment.”