Transcript Top Ten Tips for Single Justice Practice

Direct Appellate Review
How to Get The Justices to [Pay Attention]
Mass. R. App. P. 11 - Procedure
• Apply within 20 days after case is entered in Appeals Court
• Note: It appears that late applications are routinely allowed.
• Opposition due within 10 days (maximum 10 pages)
• File one copy w/ Appeals Court & original + 17 copies w/ SJC
• How granted?
• Two Justices of the SJC OR
• “[A] majority of the justices of the Appeals Court shall certify
that direct appellate review is in the public interest”
What is legal standard under Mass. R. App. P.
11(a)?
1.
2.
3.
Questions of first impression or novel questions of law
which should be submitted for final determination to
the Supreme Judicial Court;
Questions of law concerning the Constitution of the
Commonwealth or questions concerning the
Constitution of the United States which have been
raised in a court of the Commonwealth; or
Questions of such public interest that justice requires a
final determination by the full Supreme Judicial Court.
So …… what does that really mean?
• Constitutional questions, either under the MA
Constitution or Federal Constitution; and/or
• Novel questions which are also questions of public
interest
• Note: Although the rule is disjunctive, it appears that
the SJC typically grants applications where both
conditions are met
DAR …. Allowed?
Some Recent Examples
• Commonwealth v. Pagan, SJC-11714
Whether the trial judge erred in reducing the verdict from murder in
the first degree to murder in the second degree, pursuant to Mass. R.
Crim. P. 25 (b) (2), based on what she perceived to be weak, albeit
sufficient, evidence of deliberate premeditation and her consideration
of the defendant's youth (sixteen years old at the time of the offense),
untreated mental condition (ADHD), developmental immaturity, and
family neglect, all of which, the judge found, caused or contributed to
his impulsiveness.
DAR …. Allowed?
Some Recent Examples
• Commonwealth v. Canning, SJC-11773
Whether, for purposes of obtaining a search warrant, police are required to
ascertain that an individual suspected of cultivating marijuana does not have
a lawful medical marijuana license and a cultivation registration that would
authorize such activity, or must provide facts at least supporting an inference
of the same.
• Commonwealth v. Freeman, SJC-11745
Whether a juvenile offender seventeen years old at the time of his offense
against whom criminal proceedings were pending on the effective date of St.
2013, c. 84 ( An Act Expanding Juvenile Jurisdiction ), is denied equal
protection because he does not receive the benefits of the act.
DAR …. Allowed?
Some Recent Examples
• Commonwealth v. Ridge, SJC-11676
Whether the defendant's motion to correct his mittimus should have been
granted because fundamental fairness compels that the days of credit to
which the defendant is entitled be applied in a meaningful manner, that
benefits the defendant, no more no less, for the days he spent confined prior
to the disposition of his case?
• Commonwealth v. Camblin, SJC-11774
Whether the motion judge erred in declining to hold a hearing (as requested
by the defendants) on the question of the reliability of the Alcotest MK III-C
breathalyzer machine, and, in reliance on an opinion of the New Jersey
Supreme Court, ruling that the claimed flaws in the machine's source code
did not undermine its overall reliability.
DAR …. Allowed?
Some Recent Examples
• Commonwealth v. Bastaldo, SJC-11763
Whether the court should adopt the recommendation of the Study
Group on Eyewitness Evidence that, in a case where identification is at
issue and the proof of identity relies on a cross racial or cross-ethnic
identification, the jury must be instructed to consider that people of all
races and all ethnicities may have greater difficulty in accurately
identifying members of a different race or a different ethnicity.
Tips
• Reported Questions
• Timely Issues (E.g, new statutes or new rules)
• Differing Views in Trial Court