The Massachusetts Supreme Judicial Court heard oral arguments on December 7th in Commonwealth v. Lindsey Hallihan. This case deal with the fall out from the Ananias litigation and the serious discovery violations that occurred, undermining the integrity of breath test results for a period of time from 2011 to 2019. In the Hallihan case, the defendant filed a motion for new trial based on the fact that her breath test was in the period of time where the discovery violations occurred. The trial judge denied the motion to vacate. The SJC has to decide what standard and remedy to apply when a defendant brings a motion to vacate.
The SJC looked to its case on prosecutorial misconduct from the drug lab scandal. The SJC was wrestling with the issue of whether it should:
- Apply a global remedy and dismiss all cases with prejudice; or
- Apply a case by case test where a defendant would have to show there was a reasonable probability that they would not have accept a plea without the breath test evidence.
Justice Gaziano asked why is this a two stage case, indicating he believed that the misconduct had already been established through the Executive Report of Public Safety, referred to as the EOPSS report, and investigation showing that the OAT withheld exculpatory evidence. The EOPSS Report established this went into great details finding that OAT had a culture of disregarding discovery violations and hiding evidence from prosecutors, defense lawyers and the Court.
The Justice discussed how the misconduct in the OUI cases before the Court was different from the drug lab scandal. The Court stated that in the drug scandal the tampering with the drugs undermined the entire case and the State could not determine which cases were impacted by the scandal. In contrast, OUI cases allow for two methods of proof, an observation theory and a per se theory. The Justice seemed to suggest that the observation theory is not impacted by the misconduct of OAT. The Justice suggest you can create a remedy by taking the breath test out of the case.
Justice Kafker suggested that any remedy may not include OUI Serious injury or OUI 5th Offense. In a brief written by CPCS and the Massachusetts Criminal Defense Lawyers, it was suggested that all cases should be dismissed with prejudice. The defendant did not ask for this remedy but the judges questioned whether a global remedy is more appropriate and whether it need to create a remedy with a sufficient sting to prevent future cases of misconduct. Justice Gaziano asked what message would be sent to the public if misconduct in handling evidence was allowed to stand without an adequate and strong remedy for those impacted.
While I do not think the SJC will dismiss all cases, I think the Court will provide a significant remedy in this case. The prosecution argued that the Court has not been flooded with motions for new trial in these cases. Justice George pointed out that this may be because individuals cannot afford to hire a lawyer to bring these motions for new trial. As part of the remedy, I would expect the Court to allow for the appointment of counsel to assist individuals in addressing motions for new trial based on the discovery violations of OAT.
What will be the standard to have a new trial motion allowed?
I would expect the Court to create a high burden for the Commonwealth to allow all but the most extreme cases of impairment to stand. I would expect the SJC to require the Commonwealth to demonstrate overwhelming evidence of intoxication or extreme impairment that could support the conviction without breath test evidence. The SJC does not want different outcomes in different cases and wants to promote fairness to all defendants so I would expect a standard making it highly unlikely that the Commonwealth will be able to show that the case would have been plead without a breath test. It would not be surprising to me for the SJC to go even further and say that in all cases with a breath test, a defendant can file a motion for new trial as there is a conclusive presumption of misconduct. Vacating all pleas would be fair for a number of reasons:
- Many defendant’s quickly accept a plea without a proper investigation of the case when there is a breath test.
- Lawyers wrongfully fail to look into all avenues of defense.
- Witness that could have been spoke to may not be interviewed because the person is assuming the case cannot be won because there is a breath test.
- The breath test deflates the person willingness to fight the case in some cases without a lawyer because the person thinks the results are scientific.
To Learn more about vacating a plea when you admit to an OUI with a breath test contact Attorney DelSignore; I have successfully vacated manny old OUI cases and most of these cases have resulted in the ultimate dismissal of the OUI charge. You can call or text Attorney DelSignore at 781-686-5924.