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Defendants at probation surrender hearings should think of give-backs

His fall from grace was hard, fast, and probably deserved. Anthony Galluccio of Cambridge resigned from the state Senate a couple of days too late. Had he decided to do so at his probation surrender hearing, he may have been able to avoid going to jail.

Having been ordered as a condition of probation to abstain from alcohol, he was apparently confident that his “toothpaste” defense would work and the judge would give him another chance. He claimed any alcohol detected in his system at a random breathalyzer test came from toothpaste he had just used.

Unfortunately for him, he had a history of motor vehicle offenses strongly indicating a serious alcohol problem. Also, the fact that it was a high visibility case did not help him.

Unlike at a trial, where a judge or jury must find a defendant guilty “beyond a reasonable doubt,” the burden of proof at a probation surrender hearing is substantially less. The judge need only find “probable cause” that a term of probation was violated.

If the judge did not believe Galluccio, as turned out to be the case, the defendant was in trouble. What else could he surrender that might have kept him out of jail?

Framed as a self-imposed penalty that the senator would accept as an alternative to a jail sentence, his reignation might have worked. After all, the consequences would have been severe: loss of his job and likely any pension benefits.

Had that occurred as part of the probation surrender, it could have provided the judge with an alternative to jail that still carried significant consequences. It also would have kept Galluccio on probation and under strict alcohol supervision, which hopefully would have contributed to his rehabilitation.

Resigning his seat after he had already being sent to jail when he was likely to be removed by his colleagues anyway was to give up his last “poker chip” without getting anything in return.

Judges normally do not want to sentence someone like Galluccio to jail for a first, and what might be viewed as a minor, probation violation. But judges also do not like to be lied to.

At a probation surrender hearing, judges have broad discretion. Having found a violation, they can extend probation, add or modify probation conditions, commit a violator to jail, or give him another chance. The grounds for appeal are very limited.

Judges are frequently criticized for being too lenient but rarely for being too harsh. In a high visibility case, this can be a disadvantage for the alleged violator. Wanting to underscore the importance of complying with court orders, a judge may wish to set an example and also demonstrate that it is not only the poor and powerless who are called to account. Thus, a public official may be held to a higher standard.

The judge found probable cause that Galluccio had ingested alcohol in violation of his probation conditions a short time after that restriction was imposed. Instead of relying on a defense to that charge, Galluccio should also have been prepared to give up something of consequence.

Unlike others in a similar position, he had something of consequence to offer – his Senate seat. Had he offered to surrender it at the time, the judge may have viewed that as a sufficiently serious penalty, one that would be viewed as commensurate with the offense.

It is important for lawyers and defendants at sentencing or probation surrender hearings to understand those factors a judge may be considering in trying to frame a just and reasonable penalty.

In an effort to try to keep a client out of jail, defense attorneys should be prepared to suggest alternatives short of confinement that balance the need for retribution against the desire to rehabilitate.

James W. Dolan is retired Dorchester District Court judge who now practices law. E-mail: jdolan@dolanconnly.com.