On October 30, 1997, after a three week trial, a jury of twelve citizens convicted the defendant of murder in the second degree, necessarily finding that she had violently shaken an eight month old infant and forcefully slammed his head against a hard object, thereby killing him. On November 10, 1997, a judge vacated the jury verdict and reduced it to involuntary manslaughter upon his own determination that the defendant had simply handled the baby roughly and that this unparticularized handling somehow caused an unknown pre-existing, but wholly unmanifested, medical condition to spontaneously kill the baby. Five hours later, the judge announced that he intended to bring the case to a "compassionate" end, sentenced the defendant to 279 days, the time she had served awaiting trial, and released the defendant from custody. Thus, the judge, in effect, treated the defendant as though she had been acquitted. In taking these extraordinary steps, the judge nullified the function of the jury and ceded to himself its power.

Here, the defendant was prosecuted for murder. This chare was supported by probable cause, which the defendant did not challenge by way of a McCarthy motion (see Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982)). In accordance with established law, the defendant's case was required to be tried before a jury and the degree of murder was required to be determined by them. G.L. c.265, § 1; G.L. c.263, § 6. Nevertheless, the Commonwealth requested that the jury be instructed on involuntary manslaughter because the evidence adduced at the trial could also support a conviction on that charge. The judge erroneously denied the Commonwealth's request, stating that it was only "fair" that the Commonwealth be required to prove the case as indicated.

As an experienced jurist, however, the judge knew that a murder indictment includes manslaughter where the facts support it. Commonwealth v. Sires, 413 Mass. 292, 301 (1992) (lesser included offense instruction required to be given where any view of the evidence will permit it). See also Commonwealth v. Thayer, 418 Mass. 130, 133 (1994) (test to determine whether lesser included offense instruction is required does not depend on whether there is objection by defendant or Commonwealth, but rather, whether evidence supports it). Even though the law required him to instruct the jury on involuntary manslaughter upon the Commonwealth's request, se Commonwealth v. Hobbs, 385 Mass. 863, 871 (1982) (instruction must be given upon request where evidence supports it), the judge erroneously allowed the defendant to "gamble" that she would be acquitted if the jury's only other option was to convict her of murder. See Commonwealth v. Pizzotti, 27 Mass. App. Ct. 376, 385 (1989) (all-or-nothing defense tactic characterized as a gamble).

In retrospect, it is clear that this jury never had any acceptable option other than a verdict of acquittal because the court considered that a murder conviction on the evidence presented would be a miscarriage of justice. (Memorandum and Order at 15) Thus the jury was deprived of the ability to consider the only guilty verdict which would have been allowed to stand, and thereby the odds of the defendant's gamble were stacked against the Commonwealth. After the jury returned a verdict of murder in the second degree, the judge declared that the court was not a "casino" and therefore the defendant, who specifically declined an instruction on involuntary manslaughter, would not be made to accept her losses. (Memorandum and Order at 15)

Although the court expressly found that the jury verdict was not against the weight of the evidence (Memorandum and Order at 4), it erroneously reduced the verdict to involuntary manslaughter, a charge that was never before the jury. See Commonwealth v. Bowman, 373 Mass. 760, 767-768 (1977) (where trial judge and defendant made deliberate choice not to instruct the jury on manslaughter, Court refused to reduce second degree murder conviction); cf. Commonwealth v. Clark, 378 Mass. 392, 407 (1979) (Court characterized as "novel" the assertion that a jury verdict may be reduced to a crime that was not charged by the indictment and not submitted to the jury). The court purported to be acting in the interests of justice, yet it erroneously considered only the defendant and the evidence in the case, explicitly refusing to consider the victim's family. (Memorandum and Order at 12)

Moreover, the judge justified his action by erroneously constructing an entirely new theory of the case, one that was at complete odds with the mutually exclusive theories of both parities, as well as with the findings necessarily made by the jury when it convicted the defendant of second degree murder. Upon the judge's personal view of the facts, the defendant had the misfortune to become frustrated with a crying infant who had a pre-existing injury which caused him to die as a result of a little rough handling. (Memorandum and Order 12-14)

Given this view of the evidence, the defendant's culpability was barely above that of an accident. Consequently, the judge believed himself justified in conducting an immediate sentencing hearing without proper notice to the victim's family, without a presentence evaluation by probation, without sentencing memoranda by counsel and without consideration of the sentencing guidelines. Under the judge's separate findings in the case, the defendant was all but innocent, and therefore her immediate release was required to bring a compassionate closure to the case. This was in stark contrast to the jury's necessary finding that the defendant murdered the baby by violent, hemorrhage-inducing shaking and forceful, skull-fracturing head slamming.

The court was able to achieve this result by abusing the broad discretion reserved to it by Mass. R. Crim. P. 25(b)(2). Although the rule allows a trial judge to reduce a jury verdict to any lesser included offense, this is generally done when the jury verdict is against the weight of the evidence on when significant trial errors create a substantial risk of a miscarriage of justice. See Commonwealth v. Keough, 385 Mass. 314, 320 (1982). Even then, the judge is only authorized to adjust the jury verdict to reflect a conclusion of a lesser degree of culpability based on the factual findings of the jury. See Commonwealth v. Millyan, 399 Mass. 171, 189-190 (1987). Here, the judge's adjustment of the jury verdict reflected a difference in kind, not degree.

The scope of the rule 25(b)(2) cannot be so sweeping that it allows a judge to nullify the jury and construct a wholly different finding of guilt on a uniquely peculiar view of the evidence--a view which cannot be seen to be a lesser degree of culpability for conduct necessarily found by the jury, but the equivalent of a different finding of a second jury. See Commonwealth v. Keough, 385 Mass. at 321. Justice compels that a trial judge may not look to rule 25(b)(2) to shield his reduction in verdict from appellate review under circumstances where the judge did not truly reduce the verdict. Rather, the judge transformed the jury verdict of second degree murder into what amounted to an acquittal, disingenuously described as involuntary manslaughter. The time served sentence cannot stand because it is inextricably intertwined with this impermissible fact-finding, and is the product of the abuse of discretion.

If this judge could arrive at this result upon these facts, then every trial judge would have the power to nullify the law, see Commonwealth v. Burr, 33 Mass. App. Ct. 637, 643 (1992), silence the people's elected voice, see Commonwealth v. Gordon, 410 Mass. 498, 501 (1991), and dispense with the jury system altogether. See Commonwealth v. Gaulden, 383 Mass. 543, 555-556 (1981). Indeed, the trial judge in this case was able to employ rule 25(b)(2) in a manner which rejected the legislature's mandate that murderers be sentenced to life imprisonment, in a manner that vetoed the executive's decision to charge and prosecute the defendant for murder and in a manner that usurped the jury's power to find the truth.

This case has far reaching implications for the proper administration of justice in the Commonwealth. Allowing a judge to reduce a verdict upon his own view of the case undermines the very foundation of our criminal justice system. There is no need for a jury system if the verdict of twelve unanimous citizens may be overturned by a judge, who found different facts than those necessarily found by the jury. The quality of jury service will be adversely affected where jurors know that the verdict they “find” will be “corrected” by a judge or if they view their verdict as simply advisory. The perception of justice has been seriously undermined by the court's actions. Every day that this perception is allowed to remain, the damage to the integrity of the criminal justice system, and the jury system in particular, magnifies. This case therefore presents an appropriate occasion for this Court's exercise of power under G.L. c. 211, § 3.

Unless this Court grants an immediate stay of the trial court's order and sentence, however, it will not be able to exercise its powers to any useful end. As the defendant is a foreign national with an uncertain immigration status, the Commonwealth cannot demand that she remain within the country. Moreover, because the defendant has fully served the sentence imposed, the Commonwealth has no right to demand that she remain within the country. Because the defendant's release fully undermines the jury system and the facts found by twelve deliberating citizens and constitutes an abuse of discretion, justice also demands that the jury verdict remain in effect pending appeal. Therefore, it is imperative that this Court grant G.L. c. 211, § 3 relief to preserve the Commonwealth's substantive right to have the defendant, a convicted killer, answer for her crime.

Wherefore, the Commonwealth respectfully requests this court to:

1. Stay, pending appeal, the November 10, 1997 Superior Court (Zobel, J.) order reducing the October 30, 1997 jury verdict of murder in the second degree to involuntary manslaughter;

2. Stay, pending appeal, execution of the defendant's time served sentence imposed by the Superior Court (Zobel, J.) on November 10, 1997; and

3. Vacate the November 10, 1997 Superior Court (Zobel, J.) order and sentence, and reinstate the jury verdict of murder in the second degree.

Alternately, the Commonwealth respectfully requests this Court to vacate the November 10, 1997 Superior Court (Zobel, J.) order and sentence, and rule on the defendant's motion to reduce the jury verdict anew.

Alternately, the Commonwealth petitions this Court to vacate the November 10, 1997 Superior Court (Zobel, J.) order and sentence, and remand the defendant's motion to reduce the jury verdict to the Superior Court for hearing and determination by a different judge who will give appropriate weight to the jury's fact finding.

Respectfully Submitted
For the Commonwealth,

THOMAS F. REILLY
DISTRICT ATTORNEY

By: [signature]
Gerard T. Leone, Jr.
Deputy First Assistant District Attorney
BBO#555009

By: [signature]
Martha Coakley
Assistant District Attorney
BBO#087300

By: [signature]
Sabita Singh
Assistant District Attorney
BBO#560146

Middlesex Superior Courthouse
40 Thorndike Street
Cambridge, MA 02141

Dated: November 25, 1997