Boston judge won’t let DA dismiss cases; standoff ensues

Spotlights like this one provide original commentary and analysis on pressing criminal justice issues of the day. You can read them each day in our newsletter, The Daily Appeal.

“Even before Boston Municipal Court Judge Richard Sinnott had defense attorney Susan Church handcuffed on Wednesday morning, proceedings in his courtroom had gotten bizarre—and worrying,” wrote Yvonne Abraham, a Boston Globe columnist. “The court had been dealing with those arrested protesting Saturday’s ‘Straight Pride Parade,’ a demonstration by a collection of alt-right trolls, white supremacists, and Trump fans whose sole, sleazy goal was to own the libs. Fights broke out, and some of those protesting the event were charged with assault and battery. Others were charged with disorderly conduct and resisting arrest.”

“Suffolk County prosecutors [chose to] pursue the violent offenses,” Abraham continued, “but asked the judge to dismiss the minor charges in other cases.”

But over prosecutorial objections, Sinnott refused to dismiss some of the minor cases. Prosecutors and defense attorneys were put in the uncommon position of teaming up against a judge to get cases dismissed.

On the second day of handling these cases, a prosecutor asked the judge to dismiss minor charges against another protester, and Sinnott again refused. Defense attorney Church “tried to argue that the judge had no legal authority to do that, attempting to cite the case law,” but the judge told her she couldn’t cite case law and, when she kept trying, he turned to his court officers, saying, “Take her into custody.” She was detained for four hours.

Church had been arguing that the judge’s denial of the prosecutor’s request to dismiss charges infringed on a prosecutorial power, which became precisely the basis for an emergency petition filed by the progressive district attorney of Boston, Rachael Rollins. In it, Rollins asked the state’s highest court to overturn the judge’s ruling in refusing to allow her to dismiss charges. Sinnott “ignored the clear and unambiguous constraints placed on the judiciary by the separation of powers,” Rollins argued.

For context, the Daily Appeal spoke to an attorney who was in the courtroom for much of the two-day ordeal. The attorney requested anonymity because they appear regularly before Judge Sinnott. Under the prior DA, the attorney explained, “assistant district attorneys would routinely dismiss protest cases,” but “there was less fanfare about it because he wasn’t considered a defense-friendly DA. … It was pretty common, and would happen without incident” before various judges. And now, under Rollins, disorderly conduct, disturbing the peace, and resisting arrest with no other offense attached are on her list of charges they don’t want to prosecute. “So they routinely try to dismiss those; it wasn’t unique to this protest. And this particular judge on a regular basis denies those requests.”

This standoff echoes the experience that another progressive prosecutor, Larry Krasner, has had with judges. Krasner, the district attorney of Philadelphia, made a commitment to offer plea deals at or below the minimum sentencing guidelines. That commitment is being tested when it comes to the nearly 180 juvenile lifers awaiting new sentences under a U.S. Supreme Court ruling that found automatic life-without-parole for minors unconstitutional, Samantha Melamed wrote for the Philadelphia Inquirer earlier this year. “In a number of those cases,” she continued, “Krasner has offered new deals making the lifers immediately eligible for parole—but the judges handling those cases have begun rejecting some of the deals.”

It is highly unusual for a judge to reject a plea deal offered by a prosecutor. But as judges see prosecutors act less adversarially than their predecessors, they may step in more regularly. “I suspect that phenomenon will be coming up more and more,” Douglas Berman, a law professor and sentencing expert at Ohio State University, told Melamed, “especially when, as seems to be the case in Krasner’s situation, judges have reason to believe going in that the prosecutor is not being nearly as aggressive as most judges expect and have experienced a prosecutor being.”

Another element of this new judicial behavior is worth keeping in mind: control, specifically social control, usually over marginalized people. Progressive prosecutors have promised to scale back on the amount of control they exert using the criminal system, especially when it comes to low-income communities and communities of color. Judges may be reacting to that retreat by clamping down themselves. The case that is the basis for Rollins’s emergency petition is a good example. One of the defendants, waiting to be arraigned on his case, was not allowed to enter the courtroom because he refused to take off his hat. According to the attorney present, he was making a First Amendment argument for why he should be allowed to wear his hat. When the case was called, the attorney said, “the lawyer explains he’s outside and explains the dispute over the hat.” This is how the judge responds: “He sends court officers into the hallway, cuffs him, takes him into custody [and] raises his bail to $750.”

Sinnott, the attorney said, was also refusing to let lawyers make numerous arguments. In one case, “a lawyer was making an argument for a case to be put on a pretrial diversion track which is like a dismissal track. He didn’t even let the lawyer make the argument.” In another instance, “a lawyer had filed a motion to preserve evidence, and he wouldn’t hear arguments on it.” But the judge forced the attorney to pick a date to return to court weeks in the future, “so now there’s gonna be a two and a half week period when there’s no preservation order in effect,” and the police communications that the lawyer sought could be deleted. In a third case, the DA was not asking for bail, so the defense attorney didn’t make a bail argument, but the judge raised the bail on his own, so the defense attorney then wanted to make a bail argument. He said no.

One irony is that Sinnott himself once relied on a judge listening to a prosecutor’s plea for leniency. In 1980, when he was working as an investigator for the Suffolk County district attorney’s office, Sinnott shot a member of the Coast Guard during a brawl on City Hall Plaza. The man survived. During an arraignment for two other men involved in the fight, a prosecutor read a statement asserting that Sinnott was the victim of an unprovoked attack, according to reporting at the time. But other investigative sources contended “that Sinnott may have precipitated the incident by spraying the group with Mace after they ignored his orders to stop kicking the tires of an F15 fighter jet on display in the plaza.”

In that moment, Sinnott must have been hoping that the judge would honor the prosecutor’s request, defer to their discretion, and treat him with understanding—in short, he was in all likelihood hoping for a judge nothing at all like the one he would become.