It has been a while since I’ve posted a blog, but I believe that today’s article in the Boston Globe about the Supreme Judicial Court’s formal inquiry into the acquittal rate of jury-waived drunk-driving trials in Massachusetts is extremely misleading. The high acquittal rate is based on several factors that are not mentioned, all of which I believe are far more significant than the charge of judicial leniency.
My first experience presiding over a criminal trial as lead prosecutor for the Commonwealth of Massachusetts was in 2007. I was in my final year of studies at Suffolk University Law School, working as a student-prosecutor. My supervisor handed me the file and said “Here, take a look at this case, you’re trying it tomorrow.” (I quickly learned that prosecutors were often lucky to have the case even THAT far in advance, as first contact with a case in the morning, taking a look at it over lunch, and then arguing in front of a jury by the afternoon was commonplace). When I got home and looked at the file, I realized why my supervisor handed me this particular case as my first trial- it was a loser.
The defendant had been stopped for a broken taillight (in other words, no “erratic operation” to suggest that he was impaired), there was no breathalyzer taken, and when asked, the defendant stated that he had consumed one beer. The strongest evidence of impairment against this defendant was that he failed two out of three field sobriety tests that were administered to him. While he was able to recite the alphabet without any issue, he failed both the one-legged stand and the nine-step walk and turn. The problem was that the officer never asked the defendant if he had any medical problems that might prevent him from doing such tests. As it turns out, 71 year old defendant had undergone a total of 5 surgeries on his legs and back over the past 10 years, and he had significant arthritis, all of which was documented in his medical records. The jury-waived trial took all of 45 minutes, and the judge did not say a single word at the close of the evidence other than “Not Guilty.”
Why am I referencing the first case I tried almost 5 years ago? There’s several reasons. First, in many states, the prosecutor’s office would have dismissed this case long before it ever reached trial. I don’t think that any judge, lawyer, or legal scholar in the country who understands what “proof beyond a reasonable doubt” really means could have considered a guilty verdict based on these facts. In Massachusetts, in order to heed to the outcry on drunk driving from the citizens who elect them, most District Attorneys have a policy that their prosecutors are NEVER to dismiss OUI cases, unless ethical standards require them to do so. So anytime a person is arrested for drunk driving, no matter how significantly the evidence is lacking, you can expect that the case will be prosecuted to the fullest extent of the law even when the outcome at trial is almost certainly a “Not Guilty” verdict. You can also expect the defense attorney to elect a jury-waived trial in such cases, as judges are more likely to understand the law and make a ruling based on the evidence rather than emotion and public opinion.
Second, judges in Massachusetts are more likely to render fair and impartial verdicts based on the evidence and the law, instead of public opinion, than their colleagues in other states. Why? Because they are appointed for life and are not elected officials, as judges are in most states. This allows Massachusetts judges to follow the law over re-election concerns, which might potentially cause them to take much tougher, albeit unjust, stances when rendering verdicts on drunk driving cases.
Third, the OUI trials that end up in front of judges rather than juries are there for a reason. The defendant has the option to have the case tried by a jury or a judge. When the case is weak (meaning very winnable for the defendant), either based on a lack of factual evidence or based on the law, as a defense attorney I almost always advise my client to waive his right to a jury trial. A judge will be able to see that the case falls far short of the standard of proof required for a conviction, whereas juries are much more unpredictable. If the case is a closer call, or the prosecution has a stronger case, I may advise my client to take his chances with a jury, depending on the circumstances. If the facts of the case are so bad that there is virtually no chance of an acquittal, I am probably working out a deal and not taking the case to trial at all. This being the general, and very simplified, model that most defense attorneys follow when deciding whether to elect a jury or jury-waived trial, Massachusetts judges are faced with the all of weakest cases in the criminal justice system, many of which probably should have been dismissed in the first place.
If you have been arrested for operating under the influence or any other criminal offense in Massachusetts, contact:
Law Offices of Benjamin P. Urbelis, P.C.
1211 Commonwealth Ave.
Boston, MA 02134
T: (617) 206- 4828
F: (617) 507-8188