Mass SJC Recommends Changes to Court Procedures in OUI Cases

By Mikaela Slaney, Drugpossessionlaws.com staff reporter

In reaction to claims the state’s acquittal rating when defendants waive their right to a jury is higher than the average, the Massachusetts Supreme Judicial Court (SJC) is now imposing recommendations on the court system that may negatively impact defense attorneys practicing in Worcester County and statewide.

The SJC referred to a year-long study of the court system conducted by special counsel Jack Cinquegrana that found that juries acquit drunk driving defendants 58 percent of the time while judges acquit 86 percent of the time, according to the Boston Globe.

To deter unproven claims that defense attorneys engage in “judge shopping”, and to assure that judges have received sufficient training in handling criminal case evidence, the SJC is recommending a change to jury waive procedures, where a defendant can choose to waive his right to a jury, and have his case decided by a judge instead in what is known as a “bench trial”. They recommend deterring the defendant’s right to waive a jury up until the eve of the trial.

The SJC says in their report that they expect to hear recommendations by March 30 from justices as to whether jury waiver procedures in the District Court and Boston Municipal Court should be revised, and if so, which changes should be made.

“The flaw in the original reporting in the Globe, and the follow up analysis by the study is assuming that the pool of cases that go before judges should be equally likely to be proven guilty as those that go before juries, which really doesn’t make any sense if you understand the dynamics of the system”, said Russell Matson, a prominent OUI defense attorney in Braintree.

Waiving the right to a jury can happen for many different reasons. As we noted when the Globe series was first published last year, comparing cases that go to jury trials to cases that go to bench trials is not apples to apples, so there is no reason to assume conviction rates should be the same.

• There are a lot of weak OUI cases. OUI charges are almost never simply dropped due to the politics of the district attorneys. They would always rather lose a case at trial then dismiss the charges. In the unlikely case the person ever is charged again, it would look bad very if the prosecutor didn’t pursue a case against the defendant the first time he or she was arrested.
• The weakest cases almost always go as bench trials. If the evidence is extremely thin, the defense lawyer and the judge would typically rather do a bench trial because it is simply quicker to get to the expected result.
• More technical defenses are often bench trial. If the defense depends on a fairly complicated, but legitimate legal technicality, it makes sense to present that information to a judge than to a jury who might not understand it.
• Generally speaking, judges are more impartial and dispassionate than juries. If the evidence against a defendant is thin, but his appearance or manner might appear rough and rub a jury the wrong way suggesting an unfair assumption that “that guy looks like a drunk driver”, then a bench trial is a better bet.

The second recommendation by the SJC seeks judicial training to establish a judge’s role as a gatekeeper with respect to evidence during a case, whether an OUI case, or any other case that relies on scientific evidence.

“Everyone can agree that judges should be well versed in the nature of the evidence commonly provided in Massachusetts OUI cases”, agreed Attorney Matson.

The SJC report does offer one silver lining with their recommendations, as they draw light on an often overlooked need by local police departments to establish sufficient video recording by police during field sobriety testing in OUI cases.

“While video recording systems to memorialize a driver’s performance on field sobriety tests at the time they are conducted are used by police in some other states, few if any Massachusetts police departments make such video recordings, with the result that recordings are rarely available to be offered in evidence in OUI trials in Massachusetts,” the SJC report concluded.

Insufficient video recording is both detrimental to finding justice for defendants, and it makes the trial process difficult for both sides. Attorney Matson added, “Video evidence works in favor of the defendant as often as it works against us, so I am usually happy to discover video evidence in a case.”

77% of OUI charges in Massachusetts end adversely for the defendant, which is comparable to the rates in other states. It is an extremely misleading statistic to imply that judges are not punishing drunk drivers 80% of the time. That simply isn’t true.