Mass. SJC imposes rule that could trigger release of hundreds of criminal defendants

BOSTON — The Supreme Judicial Court of Massachusetts on Thursday imposed an emergency protocol that could lead to the release of hundreds of criminal defendants due to their lack of legal representation.

Supreme Judicial Court Justice Dalila Argaez Wendlandt ordered the implementation of the “Lavallee protocol” amid an ongoing work stoppage involving court-appointed attorneys in Suffolk and Middlesex counties.

The Lavallee protocol, named after a case in 2004 involving a similar work stoppage, calls for the release of any defendant who has been held in detention for more than seven days without legal counsel, and anyone without a lawyer for 45 days must have their charges dismissed without prejudice.

In a 25-page filing, Wendlandt stated in the ruling that “despite good faith efforts” there is an “ongoing systemic violation of indigent criminal defendants’ constitutional rights to effective assistance of counsel due to CPCS’s (Committee for Public Counsel Services) incapacity to provide such assistance through its staff attorneys or through bar advocates.”

Bar advocates began refusing to accept new cases for the representation of criminal defendants over a compensation dispute on May 27.

“The number of unrepresented indigent defendants has broadly increased since the beginning of the work stoppage,” Wendlandt’s ruling stated.

As of June 29:

• There were at least 587 unrepresented defendants in Middlesex District Courts, including 25 who were in custody.
• In the divisions of the Boston Municipal Court, there were at least 557 unrepresented defendants, including at least 36 who were in custody, as of the same date.
• In Chelsea District Court, there were at least 46 unrepresented defendants, and at least nine of them were in custody.

“The current numbers far exceed the totals of unrepresented indigent defendants, including defendants held in custody, that gave rise to the ultimate applications of the Lavallee protocol,” the ruling stated.

In her ruling, Wendlandt also denied a CPCS request to set compensation rates for attorneys appointed to represent criminal defendants.

“As requested in the petition, this order imposes the Lavallee protocol on the Courts and provides conditions for the ongoing monitoring of the shortage of counsel,” Wendlandt stated. “I deny without prejudice CPCS’s additional request that I set rates of compensation for counsel representing indigent defendants.”

Just earlier this week, a Boston police sergeant charged with child rape was ordered held without bail because he appeared in court without legal representation.

Read Wendlandt’s entire ruling:

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