Pretrial Motion Hearing – Necessity Defense – Expert Witnesses


A Pretrial Motion Hearing in the case of the Commonwealth v. the Pilgrim-14 was held on February 13, 2013.  It contained few surprises.

There was a very small support demonstration across the street from the Courthouse which would benefit from larger banners, pots, pans, whistles, and a lot more people, but folks were there, which was nice, and before parking I yelled out my car window that they should all go back to where they came from.

In court the Pilgrim-14 defendants continued to be treated with the utmost respect and courtesy.  The criminal clerks told the defendants they were not even required to go into and be sent out of the First Session courtroom, that Justice Hand, the specially assigned justice who will stay with the Pilgrim-14 case from arraignment through trial to disposition, was already presiding in a trial courtroom in the midst of a trial elsewhere in the courthouse, and that all P-14 defendants and counsel were to report to Judge Hand’s courtroom directly.  Things like that are really small in the scheme of things, but they are also truly gracious and appreciated conveniences and considerations.  It’s part of what is really lovely dealing with the court in Plymouth, that folks who work there, from staff in the judge’s lobby, to the clerks, court officers, and the judges themselves all seem very nice, polite, helpful, and accommodating, all in the interests of seeing justice administered with dignity and fairness.  And in circumstances where disputes between the government and its citizens are adjudicated, you can ask for nothing more.

The defendants even feel that way about the prosecutor, that he too is a gracious, polite, man doing his job of upholding the rule of law and justice in an upstanding manner, even if he passionately wants the defendants’ conviction … even when he tries to convince the Court the defendants should not be allowed to use the “necessity defense,” which is pretty much the only defense we have.

What actually happens in Court at the Pretrial Hearing is that the judge calls a recess in the trial she is presiding over and has all the Pilgrim-14 defendants and defense counsel brought into the courtroom without a long wait.  First the Court, the prosecutor, and the defendants agree that March 18 is a suitable and realistic trial date.  Then there is a discussion involving the lawyers for both sides about the “necessity defense,” which I’ll go into in some detail elsewhere, because it is really at the core of the case.

The bottom line for now, however, is that the Judge asks the defendants to give the Court and the Prosecution a list of expert witnesses who the defendants contend will satisfy the Court that every legal requirement of advancing a necessity defense has been met.  The defendants’ expert witness list and a summary of the experts’ proposed testimony is due in court on February 25.  Once those documents are filed they become public records and you can expect to see them posted here on the Capedownwinders’ blog.  The prosecutor then has approximately a week to submit pleadings and memoranda to the Court as to why the government thinks the defendants’ “offer of proof” is unsatisfactory, after which the defense has a week to submit a rebuttal argument.  Then it is in the hands of the judge who has basically three options:
– (1) deny the defense use of the necessity defense based on what is contained in the written pleadings – which seems unlikely based on the Massachusetts SJC ruling in Comm v. Hood – especially in light of then Chief Justice Liacos’ opinion that “
Once a defendant offers to prove sufficient facts to establish each element of the defense, it is reversible error to disallow evidence of necessity … and it is irrelevant to this point whether the trial court, or this court, would find later that the defendant had not introduced sufficient evidence on each element of the defense to generate a jury question.  That the defendants should be allowed to present their defense is required by a proper respect for the role of the jury in the criminal justice system.  The essential purposes of the jury trial are twofold. First, the jury temper the application of strict rules of law by bringing the common sense judgment of a group of laymen to the case.  Second, the jury stand as a check on arbitrary enforcement of the law. “Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence.” Duncan v. Louisiana, 391 U.S. 145, 156 (1968). The legitimacy of a jury verdict depends on the ability of the jury to perform these two functions.”
– (2) allow evidence of necessity in at trial and reserve a limiting instruction that the jurors are to disregard the necessity defense if the necessity/requisite necessity defense requirements have not been met (clearly what the defense hopes the judge will conclude is the right thing to do under the circumstances), or
– (3) the Court can order “offer of proof” testimony to begin on the 13th of March.

Ultimately the Defendants hope the defense of necessity will be allowed and that they will be exonerated under the “pressure of circumstances” doctrine – the assertion that in the unique factual circumstances surrounding their arrest the values intended for protection by the Massachusetts Trespass Law were eclipsed and superseded by values that made it “inappropriate and unjust to apply the usual criminal rule.”

Meanwhile this very nice article about the pretrial conference appeared in the local digital edition of the Boston Globe.  I’ll post more when the Pilgrim-14 expert witness list is finalized toward the end of the week.

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