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

BEACON HILL

The state adopts new emergency regulations requiring further reporting by specialty pharmacies like New England Compounding Center, the firm at the center of the national meningitis outbreak linked to contaminated drug products. US Rep. Ed Markey wants to give the FDA clearer authority to regulate the pharmacies.

The MetroWest Daily News supports the “right-to-die” ballot question and notes that Oregon’s  law, which serves as the model for the Bay State, has not resulted in widespread abuses.
The Springfield Republican, however, is not enthused about legislating by ballot questions.

MUNICIPAL MATTERS

The former chairman of the Swansea Recreation Commission, just released from a Pennsylvania prison for probation violations, says his ouster while he was behind bars was illegal and he has called a meeting of the board to address his complaints.

Some changes in the state’s Open Meeting law could be in the offing in the wake of Hurricane Sandy after several officials in Freetown were forced to go out at the height of the storm to officially gavel the scheduled Town Meeting opened and closed as required by statute.

Forget Sandy: Adams is still trying to cope with damage from Irene which was more destructive to the town.

Shirley’s finance commission backs a $56 million high school renovation.

HURRICANE SANDY

Haley Barbour, the Republican governor of Mississippi during Katrina, argues that the right and the left should get off Chris Christie’s back for complimenting President’s Obama’s response to the Sandy disaster.

FEMA gets props for its response to Sandy.

Boston could be vulnerable to some of the same sort of impacts that New York City felt from Hurricane Sandy, reports the Globe. Meanwhile, did you ever wonder what happens to rats during a hurricane?

The hurricane could provide a boost for people who want more flexibility to work from home.

Sandy is likely to be the second costliest US hurricane after Katrina.

Newark Mayor Cory Booker has invited some displaced hurricane victims to crash at his house. However, he draws the line at helping citizens acquire Hot Pockets.

NATIONAL POLITICS/WASHINGTON

US unemployment rises from 7.8 to 7.9 percent in October; employers add 171,000 new jobs. US News & World Report lays out the three keys to look in monthly jobs report.

ELECTION 2012

The state’s high-profile, astronomically high-cost US Senate race hurtles into its final campaign weekend. Scott Brown is making a concerted effort to woo independent voters. Not content to hug the sitting Democratic president, Brown throws his arms around Sen. John Kerry as well. Elizabeth Warren continues to tie Brown, who is urging voters to “vote the person, not the party,” to his party. In Haverhill, a civil rights group is calling for the removal of  sign that urges the reelection of Brown, “Lt. Col. US Army, not an Indian.” On WBUR, Republican political consultant Todd Domke begins to explore the implications of a Brown loss.

GOP challenger Thomas Keyes has tripled his campaign spending over the 2010 election but is still being outspent by his opponent, Senate President Therese Murray, by a 4-to-1 margin.

Outside groups spend heavily in the race between US Rep. John Tierney and Republican challenger Richard Tisei. Tisei backers spent $3.5 million, while Tierney’s supporters spent $1.6 million, the Salem News reports.

The state representative candidates in the 12th Bristol District are trading accusations over each other’s donors.

Though Mitt Romney has touted his business background and Republican know-how when it comes to economic growth, data show the US economy growing more over the last six decades when Democrats were in charge than when Republicans controlled the White House. Michael Bloomberg and The Economist, both of whom know something about money, endorse President Obama; the latter’s endorsement is particularly unkind to Romney, charging that the GOP challenger “has an economic plan that works only if you don’t believe most of what he says.” At least Romney still has Mr. Burns on his side. Filmmaker Errol Morris talks to young people about why they don’t vote. Both campaigns ramp up their legal operations. Paul Krugman knocks what he calls the blackmail caucus in Congress: “Vote for Mr. Romney, [supporters] say, because if he loses, Republicans will destroy the economy.” The Atlantic breaks down who’s really winning early voting in key swing states. The East Coast prepares hold an election without electricity.

Mitt Romney manages to insult Italy at a Virginia rally which riles up another whole country.

Chrysler unleashes the Kraken.

BUSINESS/ECONOMY

Eric Rosengren, the head of the Boston Fed says the Fed’s effort to stimulate the economy by buying billions of dollars in long-term bonds is working.

Abiomed of Danvers says it is facing a federal probe related to the marketing and labeling of a heart pump, the Salem News reports.

The Foodmaster supermarket in Lynn will close after not being included in the sale of properties to Whole Foods Markets, the Item reports.

EDUCATION

Despite gains over the 40-year history of Title IX, the Globe reports there is still an uneven playing field between men’s and women’s sports in the Ivy League schools. In our Fall issue two years ago, CommonWealth found the same thing in Massachusetts public colleges and universities.

HEALTH CARE

The Brockton City Council approved a deal on health insurance changes bargained with the city’s unions that will save $28 million over the course of the four-year pact while keeping the coverage out of the state’s Group Insurance Commission.

Harvard officials are sounding alarms about the soaring health care cost obligations of the university, saying the increases are not “supportable.”

ENERGY/ENVIRONMENT

The US is poised to shift from one of the world’s biggest consumers of energy to one of its largest producers, Governing reports.

CRIMINAL JUSTICE

Noted defense attorney Robert George was sentenced to 3½ years in federal prison after being convicted of conspiring to launder $225,000 in drug money with a former client.

MEDIA

New York magazine asks whether incoming New York Times Co. boss Mark Thompson is the company’s next Judy Miller.

Pew’s Project for Excellence in Journalism says the tone of MSNBC’s coverage of President Obama in August and October was more negative than Fox’s coverage.