NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Washington W., 462 Mass. 204 (2012)

CONTRIBUTING EDITOR: JULIANA CATANZARITI I. Procedural History

On August 13, 2008, Washington W., a juvenile, filed a motion seeking discovery of statistical data concerning the district attorneys prosecution of juvenile sexual assault charges. A Juvenile Court judge denied the motion without prejudice. After the Supreme Judicial Courts (SJC) decision in Commonwealth v. Bernardo,1 the juvenile filed a renewed discovery motion that was allowed on March 30, 2009. The Court ordered the Commonwealth to produce discovery no later than May 4, 2009. After denial of the Commonwealths motion for reconsideration, a new June 4, 2009 production deadline was set. On June 2, the Commonwealth moved for relief from that order. The judge denied the motion, but extended the deadline to June 19, 2009. On June 12, the Commonwealth filed a petition for interlocutory review of the discovery order with the SJC. On June 25, 2010, the SJC affirmed the order.2 In December 2009, the Commonwealth indicted the juvenile as a youthful offender for two incidents of rape of a child. On March 2, 2010, the juvenile moved to dismiss the indictments. On July 2, 2010, the judge granted the motion to dismiss without prejudice.3 At a status hearing on July 8, 2010, the juvenile filed a renewed motion for the statistical discovery, which the prosecutor promised to deliver at the next scheduled court date. At the next court date, August 12, 2010, the Commonwealth failed to produce the discovery and informed that judge that it no longer considered itself legally obligated to provide it because the indictments had been dismissed. The judge noted that the Commonwealth
453 Mass. 158, 169 (2009) (holding that discovery requests pertaining to a defendants claim of selective prosecution may be granted where the defendant has made a threshold showing of relevance under Mass. R. Crim. P. 14).
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Commonwealth v. Washington W., 462 Mass. 204, 206 (2012). Id. at 206.

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was still pursuing prosecution of the indictments, and ordered production of all discovery by August 31, 2010. On October 5, the juvenile had still not received the discovery, and moved to dismiss the indictments with prejudice. On October 7, the prosecutor informed the judge that he had the discovery with him, but he would not produce it because he was no longer obligated to. The judge allowed the juveniles motion to dismiss with prejudice.4 II. Facts The juvenile and the complainant have Aspergers syndrome. When the juvenile was in the ninth grade and the complainant in the seventh, they became friends and often played at the juveniles home. On May 7, 2007, the complainant told his parents that he had engaged in various sexual acts with the juvenile that were initiated by the juvenile. The parents notified the police, and Detective Eric Wade interviewed the parents that day. Three days later, the complainant participated in a Sexual Abuse Intervention Network (SAIN) interview. On August 7, 2007, the juvenile was charged with two delinquency complaints of rape of a child, and two delinquency complaints of indecent assault and battery on a child under the age of fourteen.5 III. Issues Presented 1. Whether the July 2, 2010 dismissal of the indictments was proper under a theory of (a) insufficiency of the evidence; or (b) the impairment of the integrity of the grand jury proceeding. 2. Whether the judge properly dismissed the indictments with prejudice for failure of the Commonwealth to comply with discovery orders. IV. Holdings and Reasoning 1(a). The judge erred in granting the July 2 dismissal on insufficiency grounds. In order to indict an accused, the grand jury must hear sufficient evidence to establish the identity of the accused . . . and probable cause to arrest him[.]6 Here, the detectives testimony that the complainant told him that the juvenile would push his pants down and then push him on to the ground was enough to support the youthful offender indictment.7 1(b). The judge did not err in holding that sufficient evidence was withheld from the grand jury to so seriously taint the proceedings as to

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Id. at 208. Id. at 205. Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982) (internal citation omitted). Commonwealth v. Washington W., supra at 211.

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Commonwealth v. Washington W.

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warrant dismissal of the indictments.8 When the prosecutor possesse[d] evidence which would greatly undermine the credibility of evidence likely to affect the grand jurys decision to indict, the prosecutor must alert the grand jury to the existence of such evidence.9 In this case, the prosecutor had a transcript and a video recording of the SAIN interview with the complainant, but did not offer it into evidence. During the interview, the complainant made statements that were inconsistent with the testimony offered by Detective Wade. Contrary to Wades testimony that the complainant told him that he was pushed or forced to the ground, during the interview, the complainant made no such statements. This evidence would have contradicted the detectives statements and put into question the reliability of the parents statements that the complainant told them that the juvenile pushed him to the ground. The infliction of threat or serious bodily harm was a necessary element of the offense, and although the prosecutor was not required to provide copies of the SAIN interview, he was required to present the grand jury with exculpatory information that would undermine that necessary element of the offense. The indictments were properly dismissed.10 2. The judge did not abuse his discretion when he dismissed the indictments with prejudice on October 7, 2010. A judge may impose sanctions on a party for failure to comply with a discovery order. The SJC accepts the lower courts findings of fact absent clear error, and reviews the sanction order for abuse of discretion. The court finds no clear error in the judges finding that the Commonwealth deliberately, willfully, and repetitively failed to provide the statistical discovery. The Commonwealth appeared to be aware of its obligation, as it represented that it would produce the discovery at a later date. However, the prosecutor reneged on his affirmation, and contended that he no longer had an obligation to produce the discovery once the indictment had been dismissed. No party is permitted to disregard a court order based on its own contention that the order is no longer necessary. This is especially the case where, as here, the judge rejected that contention. Unless the order is vacated, it remains an order of the court and a party that willfully violates the order is subject to sanctions.11 The issue was not moot due to the July 2 dismissal because that dismissal was without prejudice and the Commonwealth was pursuing further action. The judge did not abuse her discretion in dismissing the case with prejudice after finding that the Commonwealth deliberately, willfully, and repeatedly failed to comply with the discovery order. Although dismissal

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Id. Id. quoting Commonwealth v. McGahee, 393 Mass. 743, 746 (1985). 10 Id. at 212-213. 11 Id. at 215.

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is a remedy of last resort,12 in this case, the prosecutors misconduct was so egregious and willful that the sanction is appropriate. Additionally, the juvenile was denied the opportunity to support his selective prosecution claim, and correspondingly, his right to a fair trial.13

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Id. at 215. Commonweath v. Washington W., supra at 217.