Wednesday, November 7, 2007

Your Government At Work

There’s great interest in the Vith Ly decision yesterday from the SJC. The legal principles and precedential effects are interesting, but the case once again raises one of the most urgent and least sexy issues facing the Commonwealth and the nation: the basic diligence and competence of our government.

This is simple stuff, isn’t it? If we can’t manage to order a convicted rapist to jail for a period of sixteen years – during which time he’s twice brought before the courts for other serious charges – if we can’t manage that, should we be surprised when tunnels and bridges collapse, when restaurant venting systems go uninspected, or when giant pallets of cash disappear in the Green Zone? Maybe, though, this is just the kind of stuff that happens when turnout is fourteen percent.


Anonymous said...

One of the wonderful things about being the SJC is being able to write, without citation, things like this: "It is clear, nonetheless, that a defendant who unsuccessfully appeals from a criminal conviction bears no burden to come forward voluntarily to be taken into custody and incarcerated. There is no apparent fault to be attributed to the defendant in this case."

Why is that so clear? The defendant sought a stay of execution under Rule 31(a), he obtained it, and apparently, the stay remained in place for 16 years. The rule is silent as to whom the burden falls upon to take action to terminate the stay once a "final determination" is made. The SJC implicitly assumes that the burden falls on the state, but there is no textual basis in the rule for that interpretation. Why is it any less reasonable to place the burden on the defendant who sought the stay to give notice to the court that he had exhausted his appeal?

The cases cited by the SJC are all cases where a person who was already incarceracted by a state(and thus within the control of the state) was, without any "fault" of their own, (1) not timely turned over to a different authority; or (2) turned over to another state for execution of a different sentence, thus waiving the first sentence; or (3) inadvertently released from incarceration too early. In the case before the SJC, while the defendant certainly could not be "faulted" for pursuing all appellate remedies available to him, why is he not at "fault" for failing to advise the court that he had exhausted those remedies, so that the stay he obtained by his own motion was no longer appropriate?

Terry Klein said...


Implicit in this comment, I think, is the notion that this wasn't an easy decision for the Court to make. Otherwise, you would have ended your comment with a statement and not a question. Right?

It was a hard decision. Which leads to two thoughts:

(1) Chief Justice Marshall does a really good job getting unanimous decisions in hard cases, which I would argue strengthens the rule of law. Compare that with Chief Justice Roberts on the U.S. Supreme Court, Getting anything less than nine separate opinions probably warrants breaking out the champagne in his chambers.

(2) On hard decisions, though, this Court is going to lean left. As between the Commonwealth and criminal defendants, between the insured and the insurer, between the business and the consumer, we know where the predilections lie (This is the kind of comment that got me in real trouble in law school, by the way, where claims of result-orientation cause pedagogical problems). This leftish pitch is great for people like me, people who voted for Clinton, Clinton, Gore, O'Brien, Kerry, and Patrick. But it kind of detracts from the rule of law props I doled out in the paragraph above.

Anonymous said...

Let's look at what would have happened in a civil case. Plaintiffs prevails. Defendant obtains a stay pending appeal, no bond posted. Plaintiff prevails in appeal, but doesn't execute on judgment for 16 years. Plaintiff then finally seeks to execute judgment. No problem, because a plaintiff has 20 years to execute after judgment. This would suggest that in criminal context, burden was on DA to execute sentence, so I am not troubled by that aspect of the decision. What I am troubled by is the notion that it is somehow unfair to the defendant who obtains a stay, and never says anything after his appeal is exhausted, to execute his sentence 16 years later. We live with our choices.

Also not sure the Roberts Court deserves your opprobrium. A different take is that conservatives are more willing than liberals to compromise (or less motivated to write a dissent when they know the stick is up), no?