News out of Boston was deeply disconcerting. The progressive district attorney, Rachael Rollings, had decided against prosecuting “counter-protesters” at the ridiculous Straight Pride Parade. The reports showed that Judge Richard Sinnott refused to dismiss the cases.
Even more outrageous, an attorney representing one of the defendants, was held in contempt and taken into custody.
Susan Church, a prominent Cambridge-based immigration lawyer, was in court to represent at least one client who was arrested by Boston police during the controversial so-called “Straight Pride” parade and counter-protests on Saturday.
Church was reading case law in support of prosecutors’ requests to dismiss cases of disorderly conduct and resisting arrest connected to the demonstrations, according to defense lawyers in the courtroom.
On its face, this is outrageous. Certainly, Church had a duty to argue her client’s cause, to make a record, given the bizarre state of affairs where the prosecutor moved to dismiss and the judge refused to grant the perfunctory motion.
As it turned out, things weren’t quite as clear and wrong as first appeared, and spread like wildfire across social media. Apparently, the judge didn’t refuse to dismiss en masse, but granted dismissal in some, but not all, cases.
Sinnott rejected at least seven of the prosecutors’ motions to dismiss charges Tuesday against the protesters. One of the defense attorneys for those arraigned Wednesday said Judge Sinnott did, however, accept motions from prosecutors to drop charges in at least six of those cases.
And as for the contempt ruling against Church, the issue may not have been her doing her job for her client, but her refusing to allow the judge to speak and deliberately talking over him. Per Church:
“All I was trying to do was read the law to the court,” Church said. “And I was summarily arrested, handcuffed, brought down to the holding cell, held there for hours … simply for doing my job and advocating for my client.”
The phrasing here is peculiar, as “read the law to the court” isn’t something lawyers do. We may cite a case, give a statement of the law, perhaps even quote a sentence or two, but we do not, ordinarily, “read the law to the court.” And it may be that the problem wasn’t her advocating for her client, but her refusal to cede the floor to the judge, who is charged with maintaining order in his courtroom.
“This is the only warning you’re going to get. Do not try to talk over me, do not try to turn this into theater,” Sinnott said before ordering Church to be held in contempt.
Was this zealous advocacy or an attempt to seize control of the courtroom to put on a show for the media? Church’s client, 29-year-old Lilley Antoinette, was pleased.
“My lawyer is a badass,” Antoinette said.
While being a “badass,” whatever that means, may thrill a client, it may not be the same as effective advocacy. Indeed, given the possibility that the protesters (oddly described in media reports as “counter-protesters,” even though there was no protest to counter) appear to include activists who appreciated disruption more than legal process.
It would appear that the refusal to dismiss the charges against protesters on motion of the district attorney was an incomprehensible act. If the prosecutor chooses not to prosecute, that’s within her discretion and, due to separation of powers, beyond the authority of the court to refuse.
“The actions of Judge Richard Sinnott are unprecedented and outrageous,” Rollins said in a statement announcing the SJC filing. “His insistence on arraigning individuals when my office has used its discretion to decline a case is an unconstitutional abuse of his power and serves neither the interests of justice nor public safety.”
Rollins took to twitter to explain herself and rally support.
By compelling arraignment in every case, the judge punished the exercise of individuals’ First Amendment right to protest.
Then again, charges ranged from disorderly conduct to assault on police, including throwing bottles of urine at cops, which goes a little beyond free speech and assembly. Would Rollins be as accommodating had this been a Gay Pride Parade and the protesters been antagonistic to the cause?
While the exercise of discretion in individual cases is entirely within the discretion of the prosecutor, it would be hoped that Rollins didn’t exercise discretion to decline to prosecute in this instance based upon her approval of the political viewpoint of the defendants, and would selectively prosecute protesters who held a contrary view with which she disapproved.
As for Susan Church, the arrest, cuffing and incarcerating were beyond the pale under any circumstance. If she was being contumacious, then the judge had remedies available to address her behavior far short of locking her up. Short of criminal conduct, you don’t toss a lawyer in a cell.
Attorney Susan Church addresses the media after Judge Richard Sinnott releases her. Sinnott held her in contempt earlier today. pic.twitter.com/PXu9VRYK9B
— Stefan Geller (@StefanGeller) September 4, 2019
But was Church’s conduct nothing more than perfectly normal and proper advocacy or something different? Was she being a “badass” or a lawyer? It’s impossible to say with certainty, as the reporting provides little information on what actually was happening in the courtroom before she was taken into custody, and more conclusory characterizations of events. But even if she had gone beyond zealous advocacy, her treatment was improper and inexcusable.
And, her point about the judge refusing to dismiss upon the prosecution’s exercise of discretion not to prosecute was absolutely correct. The judge had no lawful option but to dismiss. No matter whether he questioned Rollins’ motives or choices, it’s a decision for the district attorney, not the judge, to make.
While Rollins’ argument is that she’s just doing what she was elected to do, other Boston officials aren’t entirely supportive.
Meanwhile, Mayor Martin Walsh on Wednesday said he’s backing the judges, revealing a split with Rollins.
“I think the judge, the courts should take those cases on,” Walsh said. “They should go through the court system.”
Also Wednesday, City Councilor At-Large Michelle Wu took to Twitter, saying she watched videos of police interactions with protesters Saturday and felt police acted professionally.
None of this justifies putting a lawyer in shackles or the refusal of a judge to dismiss cases upon motion of the district attorney, but this division raises questions of whether the election of Rachael Rollins, knowing her positions going in, is going to produce the outcomes people want or render Boston incapable of maintaining order, whether on the streets or in the courtroom.