Walsh v. Commonwealth

• Decision Date: 02 September 2020
• Docket Number: SJC-12648
• Citation: 151 N.E.3d 840,485 Mass. 567
• Parties: Joseph WALSH & another v. COMMONWEALTH (and a consolidated case ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

485 Mass. 567

151 N.E.3d 840

Joseph WALSH & another¹

v.COMMONWEALTH (and a consolidated case ² ).

SJC-12648

Supreme Judicial Court of Massachusetts, Suffolk..

Argued November 7, 2019

Decided September 2, 2020

Darren T. Griffis for Mateusz Dymon.

Merritt Schnipper (Robert Hennessy, Springfield, also present) for Joseph Walsh.

Ellyn H. Lazar Moore, Assistant District Attorney, for the Commonwealth.

Shira Diner & Ryan M. Schiff, Boston, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.

Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

LOWY, J.

In these consolidated cases we address issues reported by a single justice of this court concerning the pretrial detention of the petitioning codefendants, Joseph Walsh and Mateusz Dymon (defendants). At the defendants' arraignments on September 20, 2018, in the Superior Court in Worcester County on charges relating to a home invasion,³ the Commonwealth moved for each of them to be detained before trial due to their alleged dangerousness, pursuant to G. L. c. 276, § 58A. Both defendants were found to be indigent and were therefore entitled to appointed counsel for their § 58A hearings. See G. L. c. 276, § 58A (4) ; S.J.C. Rule 3:10, as appearing in 475 Mass. 1301 (2016). Due to a shortage of available defense attorneys, however, there was a delay in the assignment of counsel for the defendants. Consequently, their § 58A hearings were continued until October 16, 2018, while the defendants were held without bail, so that they could be represented by counsel. When the § 58A hearings took place, with the defendants' counsel present, the hearing judge set bail in the amount of $7,500 cash for Walsh and $5,000 cash for Dymon. Neither defendant was able to post the required amount, and both were held in lieu of bail.

Both defendants then filed petitions in the county court pursuant to G. L. c. 211, § 3. They argued that they were entitled to release because their pretrial detention without counsel for more than seven days violated the standards we established for timely appointment of defense counsel for indigent criminal defendants in Lavallee v. Justices in the Hampden Superior Court, 442 Mass. 228, 812 N.E.2d 895 (2004). The single justice reported the defendants' Lavallee claims to the full court for resolution.⁴

We hold that the delay in providing counsel to the defendants does not entitle them to release from pretrial detention under Lavallee. Lavallee established a protocol to secure representation for indigent defendants in the face of a systemic shortage of available defense attorneys, carefully balancing protection of those defendants' constitutional rights to counsel with the need to ensure public safety. Although Lavallee created a presumptive seven-day limit on an indigent defendant's pretrial detention without counsel, id. at 246, 812 N.E.2d 895, it authorized release of an unrepresented defendant from pretrial detention only as a last resort if, at a status hearing before the regional administrative justice (RAJ) of the Superior Court, the defendant was still unrepresented and the RAJ determined that, despite the good faith efforts of the Committee for Public Counsel Services (CPCS), there was still no counsel willing and available to represent the defendant, id. at 247-248, 812 N.E.2d 895. Lavallee did not create an automatic right to release from pretrial detention for any indigent defendant held more than seven days without counsel, and we decline to create such a right in these cases.

There may be individual cases where, based on all the facts and circumstances of the particular case, a judge determines that it is necessary and appropriate to release an indigent defendant who has been held in pretrial detention without counsel. Our ruling here is not intended to foreclose that possibility. But the defendants in the cases before us have not presented such an individualized argument, and their release now would not serve any remedial purpose in any event.

The defendants also argued in their petitions before the single justice that, when the Superior Court hearing judge set bail in amounts that they could not afford to post, resulting in their long-term detention, he violated the standards for bail determinations set out in Brangan v. Commonwealth, 477 Mass. 691, 80 N.E.3d 949 (2017), and in G. L. c. 276, § 58A. With regard to these claims, the single justice reported certain questions concerning (1) the level of analysis and detail that a judge must provide in findings to satisfy the due process requirements that we established in Brangan when bail is set in an amount that a defendant cannot afford; and (2) what differences, if any, there might be in the requirements for bail determinations under G. L. c. 276, § 58A, and under the bail statutes, G. L. c. 276, §§ 57 and 58.

In response to the first Brangan question, we hold that a judge⁵ should provide sufficient information to enable the parties and the appellate courts to recognize that the judge has undertaken the analysis required by our holding in Brangan and its codification in the bail statutes. See Brangan, 477 Mass. at 707, 80 N.E.3d 949 (when imposing bail amount that will likely result in defendant's long-term detention, judge must address why no alternative, less restrictive financial or nonfinancial conditions will suffice to assure defendant's presence at future court proceedings); G. L. c. 276, §§ 57, 58, as amended through St. 2018, c. 69, §§ 168, 172. To assist judges in this process, we have set out infra a series of steps for them to consider before imposing a bail that a defendant likely cannot afford to post.⁶

We reject, however, the defendants' proposals for additionally requiring a full evidentiary hearing and proof by clear and convincing evidence before a defendant may be held on unaffordable bail. Given the large number of bail hearings that must be conducted under tight time constraints in the Commonwealth's courts, and the limited evidence available to judges in bail hearings, these additional procedural requirements are impractical and would unduly interfere with the government's interest in the efficient and economical administration of justice. We therefore continue to adhere to the standards that we endorsed in Querubin v. Commonwealth, 440 Mass. 108, 118-120, 795 N.E.2d 534 (2003), where we held that a full-blown evidentiary hearing is not needed or required to determine the amount of bail that will reasonably assure a defendant's presence at trial, and that preponderance of the evidence is the appropriate standard of proof. Finally, we hold that, when proceeding under G. L. c. 276, § 58A, as under G. L. c. 276, §§ 57 and 58, a judge may set bail in an amount beyond what a defendant can afford to assure a defendant's appearance at future court proceedings, but not to detain the defendant based on the defendant's dangerousness. In doing so, however, the judge should also meet the same constitutional due process requirements that we established in Brangan.

Background. 1. Assignment of counsel for indigent defendants in Worcester County. CPCS is statutorily responsible for providing defense counsel for eligible defendants who cannot afford to retain their own counsel in criminal proceedings in the Massachusetts State courts. See G. L. c. 211D, §§ 1, 2B, 5. CPCS provides representation through both a public defender division (PDD) and a private counsel division. See G. L. c. 211D, § 6. Attorneys in the PDD are salaried staff attorneys employed by CPCS. See G. L. c. 211D, §§ 1, 6 (a ). The private counsel division contracts with local organizations to supply private defense attorneys, also known as bar advocates, to represent indigent defendants who are not represented by CPCS staff attorneys. See G. L. c. 211D, § 6 (b ). Both CPCS staff attorneys and private bar advocates must meet certain benchmarks and performance standards before they can represent a defendant beyond arraignment in a felony case.

In Worcester County, CPCS contracts with Bar Advocates of Worcester County, Inc., to provide private counsel for indigent defendants. The Worcester PDD office and the bar advocate program are responsible for covering arraignment sessions and accepting appointments in criminal cases in the Worcester County courts.

Although the number of bar advocates in Worcester County certified to handle Superior Court cases has not significantly diminished in recent years, these attorneys are taking fewer Superior Court cases than they did in the past.⁷ As a result, there have been delays in the appointment of counsel, especially in cases where the Commonwealth has moved to detain a defendant under G. L. c. 276, § 58A. Finding bar advocates who are willing to accept appointment in a case involving a § 58A hearing can be particularly challenging because these hearings require intense preparation within a short time frame.⁸

2. Proceedings below. The charges against the defendants arise out of their alleged participation in a home invasion in the town of Douglas on July 25, 2018. The defendants were initially arraigned in the Uxbridge Division of the District Court Department on July 27, 2018, where they were represented by bar advocates certified to practice in the District Court, but not in the Superior Court. The Commonwealth moved to have the defendants detained before trial due to their alleged dangerousness, pursuant to G. L. c. 276, § 58A. Both defendants were represented by their appointed counsel at § 58A hearings in the District Court on August 3, 2018, and after those hearings, the defendants were found to be dangerous and held without bail.

On September 20, 2018, the defendants were arraigned in the Superior Court in Worcester County on grand jury indictments charging them with breaking and entering in the daytime with the intent to commit a felony, putting a person in fear, G. L. c. 266, § 17, and related charges. Both defendants were...