Dissent Alert

Dissents in the Appeals Court here in Massachusetts are infrequent and thus newsworthy. In Commonwealth v. Sanchez, Mass. App. Ct. No. 06-P-1197, the dissent espouses the appellant’s incredible argument that a judge’s instruction in a burglary case was deficient. Why? Because the trial judge instruction the jury that entering a house through an open window can satisfy the breaking and entering element of a burglary charge.

The rationale for the appellant’s argument was that disclosing this critical and not remotely self-evident point of law amounted to an endorsement of the prosecution’s version of events. The prosecution’s story was that the defendant entered an otherwise locked apartment through, you guessed it, an open window.

That a lawyer would be willing to make this argument and that an Appeals Court judge would find it compelling enough to write a dissent is further evidence that the public, in holding the profession in seriously low esteem, may well be on to something.