Massachusetts Supreme Judicial Court Rules Defendant Entitled to Court-Appointed Attorney, After Eight Previous Attorneys Withdrew

The Massachusetts Supreme Judicial Court today ruled it was improper for a superior court judge to force a defendant to litigate a probation surrender hearing without an attorney, despite the fact that eight prior attorneys had withdrawn from representing the defendant as a result of his abusive conduct.  The name of the case is Commonwealth v. Gibson.

The defendant was convicted of two counts of indecent assault and battery on a child under the age of 14 (his daughter) in 2008.  While the case was pending in the trial court, the defendant was represented by six court-appointed attorneys.  The first five withdrew and the sixth tried the case.  The reasons for the first five  withdrawals were primarily threats by the defendant to report the attorneys to the Board of Bar Overseers (the disciplinary agency for lawyers) and allege they had committed misconduct.  Following his convictions, the defendant was sentenced to 8-10 years in state prison.  He was also placed on a concurrent term of probation, with a condition that he not contact the victim.  While he was serving his sentence, the defendant sent several letters to the victim and his probation officer accused him of violating the terms of his probation.  He was brought to court and assigned three more attorneys to defend him during the probation surrender hearing.  The first attorney withdrew after the defendant threatened to file a Board of Bar Overseers complaint against him.  The second attorney withdrew for undisclosed reasons.  A judge warned the defendant that the third attorney would be his last, and if he couldn’t get along with the third attorney he would be representing himself.  Several months later, the third attorney filed a motion to withdraw.  The judge permitted the attorney to withdraw and scheduled a hearing for the following day to determine whether the defendant had “forfeited” his right to have court-appointed counsel.  The defendant told the judge he threatened to file a complaint against his most recent attorney after the attorney told him to stop writing letters to the victim (which constituted probation violations).  The defendant contended the attorney’s advice caused him “undue stress.”  The defendant also claimed to have been diagnosed with a brain tumor that affected his conduct.  The judge found that the defendant’s conduct toward his attorneys was “egregious” and determined his mental health was not a contributing factor.  The defendant represented himself at the ensuing surrender hearing and was found to have violated his probation.  The judge added an additional 7-8 years to his original state prison sentence.

The defendant appealed the finding he had forfeited his right to counsel and the Supreme Judicial Court reversed.  The Court acknowledged the defendant’s conduct toward his attorneys during the seven years that the case was pending suggested he was either unable or unwilling to cooperate with counsel.  Nevertheless, the Court concluded the superior court judge had erred in two ways.  First, it was error to schedule a hearing on whether the defendant had forfeited his right to counsel with only one day’s notice.  Particularly in this case, where the defendant suggested he had a medical condition (the brain tumor) causing his conduct, he was entitled to have time to obtain the medical records to present to the judge.  Second, the Court found that the defendant’s conduct in repeatedly threatening to report his lawyers to the Board of Bar Overseers was not sufficiently egregious to justify forfeiture.  The Court suggested it would take an act of violence or a threat of violence to warrant taking away his right to an attorney.  The SJC remanded the case to the superior court for a hearing to determine whether the defendant is now entitled to a new attorney.  In any event, the defendant will receive a new hearing to determine if he violated his probation.

The Supreme Judicial Court has issued a series of pro-defense rulings in recent years, but this one might take the cake.  It’s incredible that a defendant who can’t get along with 8 prior attorneys is still entitled to another court-appointed lawyer.