Barber v. Com.

Decision Date02 November 1967
Citation230 N.E.2d 817,353 Mass. 236
PartiesNathaniel W. BARBER et al. v. COMMONWEALTH et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Thomas E. Dwyer, Boston, for Household Finance Corp.; Walter J. Hurley, Boston, for Nathaniel W. Barber; Francis J. DiMento, Boston, for James S. Pratt; George J. Leary, Boston, for Beneficial Finance Corp.; William C. Madden, Boston, for Francis T. Glynn, and Edgar .l. Kelly, Boston, for John M. Farrell, submitted a brief.

Elliot L. Richardson, Atty. Gen., and James B. Krasnoo, Asst. Atty. Gen., for the Commonwealth, submitted a brief.

Before WILKINS, C.J., and SPALDING, CUTTER, KIRK and SPIEGEL, JJ.

SPIEGEL, Justice.

This is a petition brought under G.L. c. 211, §§ 3 and 4A, 1 asking the court to exercise its supervisory power to stay a second so called 'small loans' trial, already in progress, until thirty days after the determination of pending appeals taken after the conclusion of the first 'small loans' trial. The single justice reserved and reported the case without decision.

The petitioners are individual and corporate defendants charged with offering or paying, or soliciting, or receiving bribes, or conspiring to do so, under numerous indictments returned in May of 1964 by a special grand jury. Pre-trial motions on these indictments were heard for sixty-five court days ending May 9, 1966. The transcript of the pre-trial proceedings covers 4,730 pages. The decisions disposing of the various motions cover almost 700 pages. Review of these proceedings was sought by a request for an interlocutory report under G.L. c. 278, § 30A, which the trial judge denied. Forty-nine of the indictments were grouped for trial which began on July 18, 1966. The trial lasted about five months and generated a voluminous record. Verdicts were returned against the petitioners, among others, on December 18, 1966. Timely appeals were taken by the petitioners after these convictions. These appeals have not yet come before this court.

In March, 1967, the judge scheduled hearings on the disposition of the remaining indictments. The petitioners then moved for a continuance of any further trial until thirty days after the disposition of their appeals. Three defendants (not the petitioners) 2 moved at the same time for a speedy trial. The petitioners moved for severance from these defendants and for a '(c)ontinuance or (p)ostponement.' These motions were denied. The trial, postponed from July 5, 1967, commenced on July 17, 1967, and is still in progress.

The petitioners' principal argument for the exercise of this court's supervisory power is that they have the burden of trying complex cases while equally complex appeals following the first trial are being prosecuted. This, they maintain, effectively denies them the right to counsel guaranteed by the Sixth Amendment to the United States Constitution. They assert that the rigors of the present trial prevent them from properly preparing their cases on appeal; or, conversely, that if their counsel concentrate on the appeals, they will be unable adequately to protect their clients in the present trial. This argument is based in part on the allegation that the major issues are common to the two groups of cases, and that the second trial should therefore await the disposition of the issues involved in the pending appeals. The petitioners further argue that severance would adequately accommodate the right of other defendants to a speedy trial, and that the public interest would best be served by postponing a costly trial which may prove unnecessary if their appeals prevail.

The Commonwealth maintains that the relief which the petitioners seek would not be appropriate under G.L. c. 211, §§ 3 and 4A. Since they have saved their exceptions, it is argued, they may more properly seek review at the conclusion of the present trial. Until this avenue of appeal is exhausted, the Commonwealth contends, the supervisory powers of this court should not be exercised. In addition, the Commonwealth argues that the adequacy of counsel can only be raised after trial, when the safeguarding of the petitioners' Sixth Amendment rights may be better evaluated by examining the entire record.

We do not agree that the court's supervisory powers under G.L. c. 211, §§ 3 and 4A, are so limited. While these powers are by nature extraordinary, in an appropriate case this court could and should act at whatever stage in the proceedings it becomes necessary to protect substantive rights. That an appeal may lie from a final judgment does not prevent the court from taking such action as it may deem necessary. Cf. Connecticut River R.R. v. County Commrs. of Franklin, 127 Mass. 50, 59. While review of the adequacy of counsel under the Sixth Amendment has normally arisen after trial, there is no compelling reason why such review might not be had before trial in an appropriate case. The question is whether this is such a case.

It may be that the legal problems involved in both the second trial and the appeals are complex, and there may be considerable overlapping of the issues. However, it also appears that the petitioners' counsel have been working continuously on these problems for well over three years and have consistently demonstrated thoroughness and competence. This petition itself is indicative of their vigilance and capacity in guarding their clients' interests. We must consider, too, the distinction between a case being tried in a trial court and the argument of a case on appeal. In the former instance it may be necessary for counsel to conduct an investigation, and to confer frequently with his client and witnesses. In the latter instance it is doubtful if these measures can be of any assistance. The issues and the points of law raised on appeal are shown by the record and in all likelihood have been argued, at least to some extent, in the trial court. These are factors, which the judge might have considered when exercising his...

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24 cases
  • Com. v. Beneficial Finance Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • November 4, 1971
    ...trial which began on July 18, 1966. The trial lasted about five months and generated a voluminous record.' See Barber v. Commonwealth, 353 Mass. 236, 237--238, 230 N.E.2d 817. The transcript of evidence consists of 103 volumes containing more than 7,500 The evidence in the first trial, pert......
  • Blaisdell v. Com.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 14, 1977
    ...substantive rights.' " Myers v. Commonwealth, 363 Mass. 843, 844, 298 N.E.2d 819, 821 (1973), quoting from Barber v. Commonwealth, 353 Mass. 236, 239, 230 N.E.2d 817 (1967). The questions reserved and reported by the single justice involve matters of great import not only to the defendant b......
  • Ex parte James
    • United States
    • Alabama Supreme Court
    • May 31, 2002
    ...Louisiana law, "by exercising our supervisory jurisdiction, this court has authority to review the case"); Barber v. Commonwealth, 353 Mass. 236, 239, 230 N.E.2d 817, 819 (1967) (stating that "[w]hile these [supervisory] powers are by nature extraordinary, in an appropriate case this court ......
  • Com. v. Cook
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • April 2, 1980
    ...360 Mass. 170, 171, 274 N.E.2d 589 (1971), where "it becomes necessary to protect substantive rights," Barber v. Commonwealth, 353 Mass. 236, 239, 230 N.E.2d 817, 819 (1967). See also Commonwealth v. Longval, --- Mass. ---, --- - --- d, 390 N.E.2d 1117 (1979); Blaisdell v. Commonwealth, 372......
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