Former Catholic priest Paul R. Shanley was back in the news this week when his appeal from denial of his motion for a new trial following his 2005 conviction on sex abuse charges was accepted for further review by the Massachusetts Supreme Judicial Court. His motion, largely based upon the allegedly improper use of expert testimony regarding so-called “repressed memories,” raises some interesting issues, and I look forward to seeing how the SJC addresses them.

Since it’s not often that a motion for a new trial makes headlines, I thought that this would be a good time to address questions which I am often asked in connection with vacating convictions in Massachusetts. I should note up front that while practitioners typically refer to this process as a “motion for new trial,” these motions are also legally identical to motions to withdraw a guilty plea, and are often collectively referred to as “motions to vacate.” I will be using this last term throughout this post not only because it is somewhat simpler, but also because I like the sound of it.

What is a motion to vacate?

Rule 30(b) of the Massachusetts Rules of Criminal Procedure states that judges may vacate prior convictions “at any time” upon a showing that “justice may not have been done” in the prior proceedings. This includes convictions arising either from trials or guilty pleas.

If turning back the clock to rectify a situation in which “justice may not have been done” sounds like a job for Superman—or, if Mr. Kent is otherwise engaged, perhaps Matt Murdock—you can think of Rule 30(b) as a Massachusetts judge’s own personal phone booth. It bestows the courts with extraordinary powers, which is exactly why they generally choose to exercise them only in extraordinary circumstances.

How is a motion to vacate different from an appeal?

Motions to vacate differ from direct appeals in two significant ways:

1) Timing.  Notice of direct appeal from a criminal conviction must be brought within 30 days of the date of conviction, although late appeals may be permitted under certain circumstances. Under Rule 30(b), however, a motion to vacate a conviction may be brought “at any time.” It is not uncommon to see these motions brought decades or more after the original conviction, usually when the defendant is facing serious collateral consequences such as deportation or enhanced sentencing in a subsequent charge.

2) Content. New evidence may not be raised on direct appeal, as all claims made on appeal must be supported by the settled record in the trial court. A motion for new trial presents an opportunity to expand the record with information which did not appear in prior proceedings. This could be exculpatory (newly-available eyewitness testimony, new scientific evidence, etc.) or, more commonly, evidence as to elements of the trial (usually, but not always, attorney performance) which are not immediately apparent from the face of the record.

What does it take to vacate a conviction?

Grounds for a successful motion to vacate can vary widely, and you should consult an attorney who is experienced with these unique and highly technical motions if you believe that “justice may not have been done” in any criminal proceeding. Possible reasons for vacating convictions will depend entirely on the circumstances of your case, but they may include deficiencies in the plea hearing, problems at trial (including ineffective assistance of trial counsel), and/or newly-available exculpatory evidence.

Dude, I was totally high when I pled to that. Shouldn’t I get another chance?

Maybe, but probably not. Read more…

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If you need one more reason to take pride in the genius of the American democratic process today, keep in mind that Supreme Court Chief Justice Roger Taney, the last person to administer the Presidential oath of office upon the Lincoln Bible on which Barack Obama will place his hand today, believed that:

…it is too clear for dispute that the enslaved African race were not intended to be included [in the phrase "all men are created equal"], and formed no part of the people who framed and adopted this declaration, for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted, and instead of the sympathy of mankind to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.

In Dred Scott v. Sandford, 63 U.S. 393 (1857), now known as one of the worst rulings in Supreme Court history, the Taney Court was asked to decide whether African slaves and their descendents could ever become citizens of the United States. The answer was an angry, Ted-Stevens-style, “NO!” After all, wrote Taney, our Founders found Africans to be:

“…beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.”

Furthermore, Taney believed that it was essential to the health of the nation that the same Constitutional rights that applied to “real” Americans be forever witheld from Africans and their descendents because:

[Citizenship] would give to persons of the negro race… the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color [in slave states], both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.

In an unfortunate attempt to answer the “slavery question,” Dred Scott openly vindicated the “property rights” of slaveowners, vitiated the Missouri Compromise, and forcefully precluded the possibility that African slaves and their descendents could ever call themselves “African-Americans.” It remains one of the handful of Supreme Court opinions that everyone can now agree was just a really bad idea.

Although Barack Obama is the first incoming President to take the oath from a Chief Justice to whose appointment he was opposed, John Roberts is no Roger Taney. Justice Taney was an open supporter of the “rights” of slaveowners to their human “property,” and an avowed enemy of Abraham Lincoln. (Scholars still dispute whether or not Lincoln actually attempted to issue a warrant for Taney’s arrest several months after he took office.) Dred Scott had been in effect for four years by the time that the two men faced each other on the steps of a Capitol built on the backs of slave labor with this Bible between them, and a war that would truly solve the “slavery question” once and for all of American history was only months away.

Dred Scott was legally superseded by the passage of the 13th and 14th Amendments to the U.S. Constitution after the Civil War which granted full citizenship to “all persons born or naturalized in the United States,” but it was never formally overruled by the Court.  With the conclusion of today’s ceremonies, however, one singular man has proven that Dred Scott really is as dead, ugly, and rotting as Taney himself.

Happy Inauguration Day!

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An obituary:

Matter of Lozada (April 3, 1988-January 7, 2009) was good law for 20 years, and became a working part of the immigration litigator’s lexicon during that time. Rarely used but often useful, Lozada ensured basic Constitutional due process protections to aliens in removal proceedings, and was often the only hope for immigrants who had been ill-served by attorneys they had retained (often at exorbitant rates) and trusted to guide them through the eldritch realms of Immigrationland. It was not perfect, but it was workable. It worked.

Lozada suffered an untimely death on Wednesday when outgoing U.S. Attorney General Michael Mukasey surprised it from behind, garotted it, injected it with a shot of Bush-era executive hubris, reanimated it, and imbued the resultant chimera with an unholy taste for human flesh. I give you: Compean-Bangaly-J-E-C, 24 I&N Dec. 710 (A.G. January 7, 2009).

Mass Appeal has obtained a fresh copy of Mukasey’s monster, and will now (with Mssrs. Justerini & Brooks assisting) perform an initial autopsy: here for more

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As of today, the partial decriminalization of marijuana has officially been achieved via ballot measure for the first time in American history. After passing 65-35 in November, Question 2 is now law and Massachusetts has joined the eleven other U.S. states to have decriminalized possession of small amounts of pot. As with any significant change in the law, only time and creative lawyering will give us an outline of the full contours of this thing. Meanwhile: (Full analysis continues)

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