A labor dispute involving defense attorneys that has crippled the adjudication of many criminal cases across Massachusetts this year continues to impact Dorchester in a disproportionate way, with one local prosecutor calling it a “great public safety threat.”
On Tuesday, scores of cases against defendants arrested for serious crimes in Boston neighborhoods— including firearm possession, child molestation, felony assaults, and attacks on police officers— were dismissed due to an absence of legal counsel for the accused.
In a Zoom hearing lasting throughout the day, Boston Municipal Court Chief Justice Tracy-Lee Lyons was scheduled to hear multiple cases in a Central Division court session — 212 of them originating in Dorchester. As the hours went by, she dismissed a large majority of them.
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“Court finds CPCS (Committee for Public Counsel Services) has made a good faith effort to find representation and has been unable to do so,” Lyons said repeatedly in rendering her dismissal decisions. “The defendant has been without representation since [date of arrest]. The matter is dismissed without prejudice,” which means it can be refiled.
Assistant District Attorney Sam Jones, speaking for the prosecution side, objected on a number of occasions.
“Some of these prove a great risk to public safety,” said Jones at the outset of the Tuesday hearing. “This Constitutional crisis is sweeping. We have 212 cases out of Dorchester today…Everyone is trying their hardest. This is a great public safety threat, and we cannot overstate that.
“We have repeat firearm offenders and cases where we moved for [dangerousness hearings] and they were released,” said Jones. “They all have the benefit of having their cases dismissed today and it is a benefit.”
The problem has been dogging the state’s justice system since last May, when bar advocates— private attorneys who agree to defend people for below-market-rate fees— began a work stoppage aimed at increasing their wages. In August, the Legislature and Gov. Healey passed a bill that included a modest pay hike for the lawyers and added funding to the state budget for hiring full-time public defenders.
However, the compromise bill has been widely panned by the aggrieved lawyers, and some have continued to avoid taking on public defense cases.
The result has been a continuing deficit of bar advocates available to counsel defendants— and Dorchester court “has been getting hit the hardest,” one source familiar with the process told The Reporter.
The scope of the problem was on full display at Tuesday’s hearing, legally known as a Lavallee Hearing, in which defendants with open cases for 45 days or more were heard by the court to discuss next steps. The accused are mainly indigent or people without the financial wherewithal to hire a defense attorney who have not had legal counsel appointed to advise them due to the work stoppage.
By statute, these defendants must be released and the cases against them dismissed if they do not have access to a public defender within 45 days of their arrest.
While dismissed cases can be re-filed, most of the defendants are freed from custody after dismissal. In one such instance on Tuesday, a pending case against two men who’ve been detained under house arrest since Aug. 25 for illegal gun possession near the Caribbean Carnival on Aug. 23, saw their cases “dismissed without prejudice,” due to the lack of defense.
“These are two individuals that are gang-involved and were found at the Caribbean Fest in broad daylight in a very public setting with illegal firearms on their person,” said Jones. “The Commonwealth does have safety concerns for the public…At this point they are being reviewed for indictment with an active grand jury investigation ongoing.”
Another case involved a Boston man accused of two counts of indecent assault and battery on and sexual molestation of a ten-year-old girl.
The case was moving toward dismissal when the judge noted that the defendant was at the time present in another BMC courtroom on a separate charge. After a scramble, his attorney in that case agreed to also represent him before Judge Lyons.
“Counsel, [an attorney] is going to take this case,” Lyons said. “[The defendant] is now in courtroom 17 and (his attorney) has told the court he will take (the case). The matter is off the list. Thank you.”
That case was then scheduled for an Oct. 31 hearing, but later in the day, the attorney returned to court and said he wouldn’t be taking the original case after all.
The judge then ordered a dismissal.
And so things went, one after the other.
One defendant, who had been charged with assaulting a family member and ordered to undergo a dangerousness hearing was instead released in August because there was no defense attorney available for his case. Since then, he has had a fresh warrant issued out of Hingham for alleged animal cruelty.
Despite that, his case was dismissed on Tuesday.
“It’s failing the victim,” protested the prosecution’s Jones. “There are multiple safety concerns with [the suspect] getting returned to the world without any guardrails or being monitored. He is a danger to the individual [victim] and there are no mechanisms holding him back.”
In another matter, a defendant accused of assaulting a family member on three occasions— and for allegedly hitting a pregnant family member with a car—saw all charges dismissed. Yet another case involved a mother who reportedly threatened her children with a legally owned firearm.
Said Jones: “The children are in the custody of the father now, so they aren’t in danger.”
At the outset of the hearing on Tuesday, attorney Brianna Rowley of the panel on public counsel services said they are trying their best but have 2,187 unrepresented defendants statewide, with 51 in custody – 33 of them in Suffolk County.
“We have eight bar advocates in training and should be able to take [more] cases by the end of November,” she said. “Five of them will go to Suffolk County and there are 38 public defenders in training that should be able to take cases starting in November. The public defenders should have 20 to 30 attorneys in place by the end of the year.”
Asked to comment on the day’s events, a spokesperson for Suffolk County District Attorney Kevin Hayden’s office – Jim Borghesani – gave this statement: “The volume and severity of these cases made for an extremely difficult day for prosecutors, police and victim witness advocates. But it was an especially hard day for victims, who are now facing—at best—significant delays in seeing defendants brought to justice for committing crimes against them.”
Reporter executive editor Bill Forry contributed to this story.
