Contrary to the motion judge’s findings, there was no evidence that pill-bottle sized weapons had “proliferated” nor was there evidence that the defendant had a specific history of using tiny weapons.

Cruz-Rivera was subjected to a traffic stop after he was observed operating his vehicle in “an unsafe manner.” Although there was some belief that he might somehow be a person of mild interest in connection  an incident in Lowell,¹ there simply wasn’t enough to hold him or charge him with anything. Following a routine patfrisk for officer safety, the defendant was declared free to leave just before officers decided—and hey, why not, while we’ve got him here—to perform a detailed, comprehensive, fine-tooth search of his vehicle for reasons never really clearly stated on the record in any kind of way that should have passed the laugh test.

Almost immediately at the outset of the search, officers proceeded to examine a large-ish “vitamin pill bottle” in the vehicle’s center console, in which they found… well, you can probably guess. Nothing my mother ever made me take—although it might have gotten me through my chores  a lot faster.

The defendant moved to suppress the evidence as the result of an unlawful search, and the motion judge found that “[b]oth officers [had] received training indicating a proliferation of smaller weapons that are easily concealed in small containers…. which include razors, knives, and pen-sized single-shot guns, ” although it was “perhaps a relative longshot” that they might find a “small knife or a one-shot revolver.”²

On appeal, the Appeals Court reversed the motion judge, holding that:

On this record, it simply was not reasonable to believe that the defendant might, upon his release with a message that he was free to go, enter his car, reach into the console, open a pill bottle, extract a weapon smaller than four and one-half inches by one and three-fourths inches and use it in an effort to harm the two nearby, fully armed police officers who had just released him. Indeed, allowing police to search the pill bottle under the circumstances this record reveals would, as a practical matter, essentially remove most constitutional brakes on police power to search the contents of motor vehicles stopped for routine traffic incidents.

Exactly the right result. Remember:  this was a vitamin pill bottle. We’re not talking about a massive bottle of Vicodin with someone else’s name on it, a green plastic box labeled “Rebekah’s Pot,” or, indeed, a dodgy titanium cylinder marked “CAUTION! TINY WEAPONS INSIDE!” Having found no other reason to hold the defendant, the police conducted an invasive search of his vehicle which included areas that no reasonable person would ever believe to contain weapons, and then attempted to justify the whole thing after the fact with a weird explanation of how small weapons can be, sometimes, in the known universe. (Also, quick protip: Any true collector knows that tiny weapons begin to lose their value pretty much immediately unless they are protected from the elements in a childproof screwtop vitamin bottle.)

As I have discussed in this space more than once already, officer safety is serious business. I don’t discount the entirely-valid concerns that should arise when police engage a suspect for even the most routine traffic stops, and officers should be encouraged to take all reasonable measures to protect themselves—but there’s nothing wrong with an appellate court stepping in to ensure that the limits of these searches are properly circumscribed. Having already decided that a suspect is free to go, there is simply no defensible reason to conduct an invasive search of every container in his vehicle.

Well, anyway. If you are the kind of person who is inclined to believe that criminals are always “getting off” on “technicalities,” (and it happens far less often than you might think, anyway) you may want to read these facts again—and kindly remember that the Constitution is never a technicality, at least not here in the Commonwealth.

1. Not quite as bad as it sounds: see footnote 2 in the opinion
2. Unless, of course, the defendant was wanted for questioning in connection with the assassination of President Garfield.

The Supreme Court’s 5-4 decision in Melendez-Diaz v. Massachusetts [PDF] was released earlier today as a followup to its critically-acclaimed performance in Crawford v. Washington. To the surprise of pretty much no one I know who cares about these things, Justice Scalia’s majority opinion came down almost exactly as I predicted it would a few days ago. (Just a warning: The following might get a little confusing if you haven’t read that post, or any other review of the issues in this case.)

As sequels go, Melendez-Diaz is a formula job. Scalia revisits everything that we loved about Crawford, and once more finds that the Confrontation Clause was intended to mean exactly what it says: a criminal defendant “shall enjoy the right… to confront all witnesses against him.” As of today, this is true even—or perhaps especially?—if those witnesses happen to be wearing lab coats. Melendez-Diaz has emphatically held that evidence of the chemical composition of an alleged controlled substance may not be introduced without the supporting live testimony of an analyst responsible for this testing. It’s a good result, and I’m happy to see it.

I don’t know about you, but I hate it when sequels re-cast major characters.³ While Scalia reprises his Crawford role as the dorky-but-likeable strict constructionist leading man here, Thomas⁴ plays the plucky swing voter, and Kennedy⁵ serviceably captains a grumbly dissent that is a full ten pages longer than the majority opinion. It’s all kind of confusing.

Justice Thomas, still riding high from recent cases in which he was the lone voice in favor of both gutting the Voting Rights Act and giving the government the green light to probe the underpants of our nation’s 13-year-old girls on a whim⁶, filed a one-page concurrence in which he basically agreed with Scalia on every point (nothing new there), but also made it clear for the record that he only supports Crawford as it relates to “formal testimonial” statements.⁷

This was more the kind of thing that I was expecting from Chief Justice Roberts⁸, but Roberts joined Kennedy’s rambling 33-page⁹ dissent together with Alito and Breyer. I would dig into this dissent more, but I’m just not up to it right now, mostly because: (1) caselaw, like history, is written by the winners and (2) I don’t like it very much. While I do agree that Scalia has overstated the efficacy of the so-called “burden-shifting statutes” used in many states, I was otherwise entirely unpersuaded by Kennedy’s arguments. I will note only that the idea that 21st-century chemists are in any way comparable to 18th-century copyists simply doesn’t pass the laugh test, and that I think that he otherwise vastly overstates both the import and the potential impact of this decision even as he indulges in an unbecoming display of haughty pragmatism. Besides, lengthy contextual examinations of what the Framers were thinking at any given moment is the kind of thing that really only works for one of the Court’s current members—and he’s on the other side of this one.

It’s really unfortunate that a case of this significance had to be so closely divided, but it is especially interesting to see who ended up where. The Court’s three (arguably) most “liberal”¹⁰ justices have teamed up with its two avowed conservatives against four of its most consistently moderate thinkers. Like so many Supreme Court-worthy cases, however, Melendez-Diaz presents issues that are far more important than the typical “conservative” or “liberal” distinctions with which the rest of the country has become so obsessed. As Walter Dellinger just noted in a Slate post, these two unlikely combinations of justices can be viewed as “legalists” (what does the law say?) versus “pragmatists” (what will this result achieve?), and Justice Sotomayor can’t necessarily be counted upon to reliably fall upon either side of this split if and when she takes the bench.

Well, anyway. This case may not be as much fun to talk about as today’s Redding “strip-search” ruling, but I’m fairly confident that it will ultimately prove to be far more important, both here in Massachusetts and elsewhere.

1. Or, better yet—don’t.
2. Yeah, I know: it’s a prequel. So maybe I’m assuming that the Supreme Court and Star Wars attract totally different packs of fanboys. Throw me to the Sarlacc.
3. E.g., Katie Holmes’s replacement by Maggie Gyllenhaal during the course of the Batman reboot. It’s a small thing, I know, and I actually like Gyllenhaal better—but still: Why?
4. Yeah, that Thomas.
5. Yeah, that Kennedy.
6. Seriously, I wish that were just a stupid joke. Today’s wantonly authoritarian dissent in Redding is one of the single scariest things I’ve ever read in a Supreme Court opinion issued in my lifetime.
7. Read: Barely agrees with Crawford at all.
8. This was, after all, the essence of the position taken by his mentor William Rehnquist in his Crawford concurrence, and it is otherwise fairly consistent with Roberts’ brand of moderate conservatism
9. Including not one, but two appendices full of [mostly pre-Crawford] cases that this decision will allegedly disturb or overturn…
10. This is relatively speaking: I continue to maintain that there have been no true “liberals” on the Court in my lifetime.

Those who have had the pleasure of an American criminal procedure course will remember Belton as the source of the “search-incident-to-arrest” corollary to the “automobile exception” to the Fourth Amendment’s general rule against unwarranted searches and seizures. Simply put, the Belton rule permits the passenger compartment of a suspect’s vehicle to be searched on-site at any time after a lawful arrest without a warrant.

This exception is usually justified on the grounds of officer safety, and that’s understandable: we want to be sure that police officers are able to quickly locate and lock down any weapons that might be at hand during the course of an arrest. But Belton’s unnecessarily broad wording has openly permitted searches that could never reasonably be explained that way. Realistically, unless you’ve collared yourself a Jedi,¹ there’s really no conceivable way that a handcuffed suspect locked in a police cruiser could possibly get to anything in his car that could be used to hurt you, and that seems to be the point at which most of these searches are performed. The “search-incident-to-arrest” element of the automobile exception has always seemed like a problem disguised as a solution to me, and a whole pile of academics and other people far smarter than me have been trying to get the Court to re-examine it for decades.

In a closely-split decision today in Arizona v. Gant (No. 07-542)(PDF), Justice Stevens² has all but overruled Belton.

The facts aren’t all that important, but I should note that the defendant had been arrested for nothing more than driving on a suspended license and was safely in custody by the time that his car was searched and a small quantity of cocaine found. During the course of the hearing on the motion to suppress brought prior to trial, the arresting officer assured the Court that the search had been conducted under these circumstances “[b]ecause the law says we can do it.”

Well, not anymore. Stevens has upheld the Arizona Supreme Court’s holding that this search was un-Constitutional, and that Belton was significantly overbroad. Here’s my favorite part:

The experience of the 28 years since we decided Belton has shown that the generalization underpinning the broad reading of that decision is unfounded. We now know that articles inside the passenger compartment are rarely“within ‘the area into which an arrestee might reach,’” and blind adherence to Belton’s faulty assumption would authorize myriad unconstitutional searches. The doctrine of stare decisis [Latin, I believe, for "What part of that last ruling didn't you understand?"] does not require us to approve routine constitutional violations.

Nice!

Best I can tell from my first read of Gant, Stevens has limited Belton to situations in which the suspect either has access to his vehicle at the time of search and/or the search would yield evidence directly relating to the crime for which the suspect was arrested.

Sounds about right to me, but where does this leave us? As Scalia grumbles in his mostly-reasonable concurrence, Stevens isn’t exactly overruling anything³ but only cinching Belton up a few notches. I kind of agree with Scalia⁴ that the best course of action would really be to ditch (rather than refine) Belton and its progeny altogether and go with an alternative rule: vehicle searches after arrest may only be conducted when seeking evidence toward the crime for which the arrestee had already been arrested. This logic in this is kind of inarguable on its face: If an officer already had probable cause to arrest a driver for certain crimes,  why shouldn’t there be probable cause to search the same person’s immediate area after arrest for evidence⁵ of that crime? But I’m not totally sold on this, as it still has significant potential for abuse and is almost certainly motivated by Scalia’s well-known career hatred for the exclusionary rule.

But, still: good enough for now. Gant is an encouraging and long-overdue development in Fourth Amendment caselaw, and I’m happy to see it.

1. And if so: How?
2. Stevens sat out Belton, instead signing on to a concurrence that was obviously hesitant to endorse it.
3. The Alito/Roberts/et al dissent disagrees, arguing that there is “no doubt” that Gant overrules Belton, and dissents almost entirely on stare decisis grounds.
4. As combinations of words go, I’ve probably uttered this phrase about as often as I have “Please pass the mushy peas, because they are delicious.”
5. Drugs and/or guns, 95% of the time

I happened to be in the Appeals Court the morning that they took up this unusually amusing case. Here are just a couple of instructive excerpts taken verbatim from my notebook:

JUSTICE GREEN (within first minute of argument): “I don’t know why this case is here.”

JUSTICE BROWN (waving his arms around umpire-style): “The Commonwealth wins on all five issues here. All five! That’s called a shutout. The Commonwealth has nailed it.”

It’s not often that appellate judges tell you exactly how they’re going to dispose of a case during the course of oral arguments, let alone within the first sixty seconds. Usually cases in which the outcome will be so obvious are relegated to the purgatory of the appropriately-named “non-argument list,” and the parties never have a chance to show up to explain themselves before an opinion issues. Having actually seen this one for myself, however, I have to suspect that the Court only put it on the calendar for the same reason that Steven Hawking might want to keep a book of easy Soduku puzzles handy on the coffee table: It’s just good, clean, mindless fun.

As an appeal, Harrington had only one reason to live: a District Court judge with a grudge against the current state of the Commonwealth’s ridiculous disorderly conduct statute which dates back to his time as a Massachusetts state representative.¹

In the course of a totally routine disorderly conduct case, the judge took it upon himself to try to convince the Court of Appeals that it should hold the current interpretation of the statute² unconstitutional and strictly limit the law to its face.

Harrington came to the Court not as a direct appeal but via something which, the Court snidely notes, “ostensibly” took the form of a “reported question” under Mass.R.Crim.Pro 34. (This is a fun-but-rarely-used vehicle by which trial courts may send up questions of law which are “so important or doubtful” as to require resolution by the Appeals Court before proceeding to trial.) But the Court is not even convinced that there is a “question” in Harrington at all, and they’ve certainly got a point.

Three of them, actually:

1) The District Court was asking the Appeals Court to overrule the Supreme Judicial Court. This not only directly violated Robert Heinlein’s familiar proscription against teaching pigs to sing³, but may in fact have actually been more pointless than that.⁴

It’s just Not How Things Are Done, is what I’m trying to say. Lower appellate courts can’t overrule higher ones; they just can’t, no more than a lowly squaddie may draw up detailed battle plans, a state governor set federal immigration policy, or an older sibling overrule a curfew set by the head of the household. Even the courts have a chain of command, and it has to be followed just as strictly as any other.

2) The Appeals Court has not seen the inside of a college dorm room for many, many years. To my knowledge, none of them own beanbag chairs, hackeysacks, or drug rugs, and they certainly do not want to sit up late with you for academic bull sessions while drinking Jolt Cola and listening to John Zorn records. If they are going to strike down a statute⁵, they’re going to have to have an actual appeal based upon an actual start-to-finish case in front of them to hang their actual decision on. They’ve already got more than enough actual appeals from actual cases to deal with, thank you very much, and they just don’t have time for your what-ifs.

3) The legislature has amended this statute twice since the Commonwealth’s highest court handed down Alegeta, and the law generally presumes the Great and General Court are all total SJC fanboys/girls who spend their weekends updating their pocket parts. If our elected representatives had believed that there was something wrong with the way that our unelected judicial gatekeepers had interpreted the statute, either of those amendments could have done something about this. But they didn’t.

1. I totally agree on this, but I’ve already hated on this statute more than once in this space and I’ll try to restrain myself now.
2. Following the SJC’s opinion in Alegata v. Commonwealth, 353 Mass. 287 [1967], this law now officially includes a definition of “disorderly” which is found nowhere in the statute
3. ”…it wastes your time and annoys the pig.”
4. Maybe I’ve just read Charlotte’s Web one too many times, but I have to believe that there might be a particularly talented, irresistably anthropromorphic, pig out there somewhere who could actually be taught to sing.
5. Which, on balance, they probably won’t anyway

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.

Judges are required to ask defendants a series of questions (known as the “plea colloquy”) under oath prior to accepting a plea to be sure that they haven’t used any drugs or alcohol that day and aren’t on any medication that would otherwise affect their judgment before a guilty plea may enter, and defendants are generally going to be stuck with the responses they provided at the time. Of course, the question itself isn’t especially useful: if you really were under the influence to a degree that would concern the court, you may not have been especially well-equipped to know whether or not your judgment was  impaired.  (Or, for that matter, that you were not actually engaged in a friendly conversation with, say, an affable black-robed porcupine about late-’70s modal jazz.)

You can see the problem here: if voluntary intoxication were proper grounds for withdrawing a guilty plea, our courts would be full of criminal defendants hopped up on their substances of choice hoping to be able to come back and get a better deal after the case was closed and the evidence disposed of.

That said, judges are obligated to determine that defendants are fully competent to enter a plea and know exactly what they are doing before accepting the plea and permitting it to become a conviction. Although I’m not aware of any reported Massachusetts case which has allowed a conviction to be vacated on these grounds, it is certainly possible that a judge who failed to notice a defendant’s state of obvious intoxication at the time of the plea would not be faulted for later permitting this plea to be withdrawn.

I am a foreign national who is about to be deported and permanently separated from my family in the U.S. because of an old, relatively minor, conviction. Can’t the judge consider this fact?

No. Although you can certainly mention it, Massachusetts courts are not simply permitted to explicitly take so-called “collateral consequences” into account when ruling on motions to vacate. And you wouldn’t want them to, anyway: No matter how the relevant state law defines it, immigration authorities will only consider a conviction to be officially vacated for their purposes if the record demonstrates that this decision was made on legal or Constitutional grounds. This is an unfortunate reality of our system, and only one more example of how it occasionally permits our laws to preclude the administration of justice.

However, this is not to say that it is not possible to clear a conviction when it is the only thing standing between you and your otherwise-lawful presence in the United States. In fact, there is sometimes an extra option available to those facing deportation for reopening an old plea that would not be available for U.S. citizens. You should consult an attorney immediately if you are currently facing immigration consequences from a criminal conviction.

How often are these motions granted?

Motions to vacate are, as they say, “disfavored.” There is generally a presumption in favor of the validity of any given conviction, and the burden is on the defendant to overcome this presumption. If this seems like a high standard, it is this way by design in favor of the basic principle that a functioning justice system requires some measure of finality in its criminal convictions.

This principle is especially true in regard to plea hearings in which criminal defendants have freely, knowingly, and voluntarily waived their Constitutional rights to have the evidence against them proven beyond a reasonable doubt and admitted their guilt. Given that any motion to withdraw such a plea must be decided by the same judge who originally accepted it, many judges will be skeptical of any claim that there was something wrong with the plea hearing.

This is not to say that it is impossible to win such motions, however, and I am proud to have been able to obtain favorable results on behalf of many of my clients.

Is vacating a conviction different from sealing/expunging a conviction?

Yes. Although Massachusetts has no provision for “expunging” a conviction in the way that other states permit,  an individual whose records have been  “sealed” by the court may truthfully inform anyone who needs to know that they do not have any criminal convictions. However, these records still technically exist, and may still be accessed by probation, immigration and other law enforcement authorities (although not potential employers, schools, etc.) for certain purposes. Also, records may not be sealed any sooner than 10 years after a misdemeanor conviction, or 15 years after a felony. (The Commonwealth has pretty much the harshest laws in the country in this area; as usual, I blame our theocratically-inclined forefathers.) If this time has already passed, however, sealing old convictions is still almost certainly going to be easier than vacating them.

Although vacating a conviction may ultimately remove it from one’s record entirely, a defendant may also be facing an entirely new set of problems once a motion to vacate is granted—more on which further below.

What happens after a motion to vacate is granted?

One of the most important questions that a defendant should ask himself and/or his attorney before filing a motion to vacate should not be “What if I lose this?”, but rather “What if I win?”

It is a common misconception that a “vacated” conviction is simply cleared from a defendant’s record with no further proceedings. While this may be true in some cases, it is often not quite so simple.

Once you have successfully litigated a motion to vacate, the case is treated as if your plea or trial had never occurred. So the good news is pretty good:  you get a chance for a new plea or trial. Of course, the bad news may also be that you… have a chance for a new plea or trial. Since prosecutors are understandably reluctant (or, in many cases, unable) to go forward with ancient cases in which documents, witnesses, and other evidence have become unavailable, your record may end up entirely cleared. If the conviction was fairly recent, however, the Commonwealth may be happy to offer you a new, substantially-similar plea bargain, or to proceed to re-try you.

Would you mind looking at my conviction to see if there’s anything that might be done to seal or vacate it?

Not at all! I am fully experienced and comfortable with these issues, and you are welcome to contact me any time to schedule a free consultation. If I feel that there is a reasonable possibility that your conviction may be sealed or vacated, it will be my pleasure to represent you in this matter.

But, like the man said, the past isn’t dead… it isn’t even past. For as much as there is to love about having a constitution and an attorney’s oath that are at least twice as old as most American states, it also means that we sometimes have to live with statutes that are just as old–or older.

Our legislature’s woeful failure to update some of our creakiest and most ancient statutes seems to be driven by the same philosophy that has kept the cult of King James going in certain Christian circles: If it was good enough in 1620, it’s good enough for 2008.

Take G.L.c. 272 Sec. 53 (…please!). Although it’s usually referenced as the “disorderly conduct” statute, it is actually a tasty smorgasbord of old-timey criminality. Namely:

Common night walkers, common street walkers, both male and female, common railers and brawlers, persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex, lewd, wanton and lascivious persons in speech or behavior, idle and disorderly persons, disturbers of the peace, keepers of noisy and disorderly houses, and persons guilty of indecent exposure…

There’s a lot to say about this damnably stupid law, starting with this: It needs to die. Just ask our own Supreme Judicial Court:

We note at the outset that G.L.c. 272 Sec. 53 has been saved, although sometimes just barely, by several limiting constructions and we have repeatedly commented that the statute is archaic and in need of legislative scrutiny.

Commonwealth v. Chou, 433 Mass. 229 (2001), FN2.

Which is to say: Boys,  load up yer shotguns, drag this thing out back, and kindly shoot it in the HEAD.

Fair game, as were prior remarks that this section has “had a tortured history” (too lazy for a full cite, but it was 1975), and is “obviously is badly in need of careful legislative attention and comprehensive revision and rearranging” (same, 1981).

All true. Sec. 53 has been in legal force in one form or another since the earliest days of the Massachusetts Bay Colony, back when freedom of speech meant “freedom of Biblically-sanctioned Puritan speech” and your mom was just getting started in her storied career as a common night walker. Its manifest “constitutional infirmities” (1988) have been remedied only by acts of judicial triage, most significantly a constructive grafting of the Model Penal Code’s definition of “disorderly” (1975) as well as generously limiting its scope to “conduct which involves no lawful exercise of a First Amendment right” (1976).

And it used to be much worse. The last serious attempt to revise and rearrange Sec. 53 “to simplify, to clarify, to modernize, and to make more precise an ancient statute some of the terms of which were difficult to define and had come to have a flavor of obsolescence” was undertaken in 1941. See Commonwealth v. Lombard, 321 Mass. 294 (1947); See also Commonwealth v. Diamond, 248 Mass. 511 (1924)(tracing disorderly conduct statute’s history from 17th century colonial law to the 1920s).

The 1941 reform decriminalized the conduct of a whole merry band of ne’er-do-wells previously named in Sec. 53’s predecessor. To wit: “rogues and vagabonds,” “common pipers and fiddlers,”persons who use any juggling or unlawful games or plays,” “pilferers,” “persons who neglect all lawful business and habitually misspend their time by frequenting houses of ill fame, gaming houses or tippling shops ,” (these last being, I gather, some kind of Victorian packies) and (my favorite) “persons who neglect their calling or employment or who misspend what they earn and do not provide for themselves.” Lombard, again, but see also Alegata v. Commonwealth, 353 Mass. 287 (1967). (When taken as a whole, it appears that this revision also effectively legitimized the existence of most of Allston-Brighton.)

So that’s all pretty hilariously self-explanatory. What is not is why what is left of Sec. 53 hasn’t gone the way of old chestnuts like the  one that used to criminalize “tramps” (still going strong while Lowell native Jack Kerouac was on the road), or the one about any “person known to be a pickpocket, thief or burglar… acting in a suspicious manner around any steamboat landing [etc],” both of which were  gutshot by Alegata more than forty years ago while Sec. 53 was left on life support.

Yes, our creepy Puritan great-uncle still wanders the old post roads, a cheerless zombie who munches nuts and berries while sprinkling himself with ashes as he mumbles about the Commonwealth of idle and disorderly railers and brawlers and common night walkers we’ve become.

As amusing as this bit of colonial arcana is, it is also a real law with real consequences, under which real people are convicted every day.  I presently have four separate appeals pending in which my clients were charged and convicted under this statute. Three of these four were sentenced to the maximum six months of committed time on the basis of nothing more than things that they said to other people and I still just don’t see why.

Next: prepare to be accosted and/or annoyed!