The SJC’s drunk driving report

For the second time in less than three years, the state’s court system is marching to the tune of the Boston Globe’s Spotlight Team.

The first instance came in 2010, when a report by the Globe on legislative patronage at the state’s probation department prompted the hiring of an independent counsel and an overhaul of the system. The second came last year, when a series of Spotlight reports on judicial leniency in drunk driving cases prompted the hiring of a special counsel. The issuance of a report by the special counsel on Thursday confirmed most of the concerns raised by the newspaper.

Special counsel Jack Cinquegrana, a former federal and state prosecutor who works at the law firm of Choate, Hall & Stewart, had a more narrow purview than his probation predecessor, Paul Ware. Ware had subpoena power and sought to make the case for criminal prosecutions, while  Cinquegrana was hired to do a fact-finding inquiry, not to root out wrongdoing.

Cinquegrana’s 148-page report confirms the gist of what the Globe reported and places that information in context. Cinquegrana and his team of lawyers and analysts, all working for free, examined 56,966 cases during a 45-month period from January 1, 2008 to September 30, 2011. They found that 77 percent of the cases ended with an adverse finding for the defendant, 10 percent were dismissed, and 13 percent resulted in acquittals after a trial. The Cinquegrana report said the overall “conviction rate” in Massachusetts drunk driving cases is similar to other states.

But what the Globe focused on and what Cinquegrana confirmed is the unusual high rate of acquittals when defendants go to trial. Those who went before a jury were acquitted 58 percent of the time, according to Cinquegrana’s report. Those who went before a judge were acquitted 86 percent of the time. Some judges, including all of those in Worcester County, had a near-100 percent acquittal rate, which Cinquegrana said created “an appearance of leniency.”

In its comment on the report, the Supreme Judicial Court said Cinquegrana found no evidence of any judicial misconduct or any corrupt personal relationship between a judge and a defense attorney. That’s true, although Cinquegrana didn’t really go hunting for those sorts of things. In a bit of circular logic, the SJC concludes: “The preliminary inquiry was expressly not a disciplinary inquiry, and we find nothing in the report to indicate that a disciplinary inquiry is warranted with respect to any judge’s adjudication of OUI cases.”

Cinquegrana made two recommendations that the SJC forwarded without comment to legislative officials for action. One proposal would change the law to make it a crime to have a blood alcohol content above the legal limit of .08 percent within a certain time after driving rather than at the time of driving. The change would eliminate the defense that at the time of driving the blood alcohol content had not yet reached the illegal level.

Another proposal would mandate that refusal to take a breathalyzer test would trigger a license suspension that would remain in effect even if the operating under the influence charges are eventually dismissed or the driver is found not guilty.

Cinquegrana also recommended that OUI defendants be required to decide between a trial before a jury or a judge earlier in the legal process to prevent defendants from “judge shopping.” The SJC said it would appoint a working group to make recommendations on the proposal by the end of March. Another group will decide whether judges should be required to give a brief oral explanation of their decisions. The Globe found several judges didn’t explain why they ruled the way they did. The SJC said it would begin implementing another of Cinquegrana’s  recommendations — that judges undergo training on the handling of scientific evidence in their courts.

The Globe’s story on the Cinquegrana report includes a chart highlighting the statistical findings. The chart shows the jury and judge acquittal rates by county as well the individual acquittal rates for 18 judges. Two judges, Margaret Guzman and Richard Ricciardone, both from Worcester County, acquitted OUI defendants 100 percent of the time.

The Taunton Daily Gazette quotes Joseph P. Harrington, a defense attorney, as saying several of Cinquegrana’s recommendations are unlikely to take effect. Harrington was particularly critical of  the proposal requiring drivers who refuse to take a breathalyzer to have their license suspended even if the charges are later dismissed or they are acquitted. “It’s a constitutional right not to have to furnish evidence against yourself, so to punish somebody for exercising a constitutional right when they’ve been found not guilty is draconian,” Harrington said.

The Massachusetts Bar Association takes a sanguine view of the findings, cautioning against making any adverse conclusions about the high acquittal rates of some judges. “The special counsel’s report to the SJC demonstrates that overall the Massachusetts courts are treating OUI cases in line with that of other states,” said Thomas Hoopes of the MBA.

Cinquegrana offered many explanations as to why judges might frequently acquit OUI defendants, but he didn’t question judges about their decisions or challenge their findings. As Plymouth County District Attorney Timothy Cruz said in the Enterprise, “The report does not explain why some judges have such off-the-chart numbers.” Cinquegrana let the numbers speak for themselves. 

                                                                                    –BRUCE MOHL


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