profiles of the justices - Massachusetts Lawyers Weekly

B12 | Massachusetts Lawyers Weekly | September 25, 2006 Subscribe Today - Call 1-800-451-9998 www.masslawyersweekly.com | Cite this page 35 MLW 284
Continued from page B10
Therese M.Wright for the commonwealth; Eric
S. Brandt for the defendant (Docket No. SJC-
09507) (Jan. 19, 2006).
Reciprocal discovery -
Witness statements
Where a judge in a criminal case ordered the
defendant to furnish the commonwealth with
witness statements in the possession of the defendant
or his attorney, including statements
of the commonwealth’s intended witnesses,this
order was valid under Massachusetts law and
accordingly should be affirmed.
Commonwealth v. Durham (Lawyers Weekly
No.10-043-06) (47 pages) (Greaney,J.) (Marshall,
C.J., joined by Ireland, J., dissenting) (Cordy, J.,
joined by Marshall, C.J., and Ireland, J., dissenting)
(SJC) Case reported by Cordy,J.,sitting as single
justice. James L. Sultan and Jonathan P. Harwell
with him) for the defendant;Paul B.Linn and
David E. Meier for the commonwealth; the following
submitted briefs for amici curiae:Matthew
Feinberg and Peter B. Krupp for the National Association
of Criminal Defense Lawyers and another;Stephanie
Page and Brownlow M.Speer for
Committee for Public Counsel Services (Docket
No. SJC-09576) (March 14, 2006).
Right to jury trial - Waiver
Where a defendant did not sign a written
waiver of his right to trial by jury (as required
by G.L.c. 263, §6 and Mass. R. Crim. P. 19 (a)),
his subsequent conviction by a judge of possession
of a class B substance was invalid and
must be reversed.
Commonwealth v. Osborne (Lawyers Weekly
No. 10-012-06) (9 pages) (Cordy, J.) (SJC) Case
heard by May, J., in the District Court. Amanda
Lovell for the commonwealth; Deborah Bates Riordan
and Theodore Riordan for the defendant
(Docket No. SJC-09448) (Jan. 17, 2006).
Sentencing - Credit -
Home confinement
Where a defendant,having pled guilty,sought
to have his sentence offset by time he spent in
home confinement prior to trial,that request was
correctly denied under G.L.c. 279, §33A.
Commonwealth v.Morasse (Lawyers Weekly No.
10-034-06) (14 pages) (Sosman,J.) (SJC) motion to
correct the mittimus heard by Kottmyer, J., in Superior
Court. Paula Finley Mangum for the defendant;Marcia
H.Slingerland for the commonwealth
(Docket No. SJC-09500) (Feb. 21, 2006).
Sexually dangerous person
Where an individual has appealed a denial of
his petition for discharge from his continued commitment
as a“sexually dangerous person,”we hold
that his challenge must fail because (1) a judge acted
permissibly in admitting into evidence,under
G.L.c. 123A, §9, certain treatment center reports
containing “totem pole” hearsay, (2) the jury instructions
framed contained no reversible error,
(3) sufficient evidence was introduced at trial to
demonstrate the need for the petitioner’s continued
commitment and (4) a discharge petition filed
under G.L.c. 123A, §9, was not an appropriate
means for the petitioner to challenge the validity
of his original commitment.
Affirmed.
McHoul, petitioner (Lawyers Weekly No. 10-
150-05) (27 pages) (Sosman,J.) (Spina,J.,joined
by Cowin, J., concurring in part and dissenting
in part) (SJC) Case tried before Hamlin, J., in
the Superior Court. David Hirsch for the petitioner;
Mary P. Murray for the commonwealth;
William R. Keating, Tracey A. Cusick and Varsha
Kukafka submitted a brief for the District
Attorney for the Norfolk District, amicus curiae
(Docket No. SJC-09392) (Sept. 8, 2005).
Wetlands Protection
Act - Indictment
Where a judge dismissed without prejudice
an indictment charging the defendants with
violating the Wetlands Protection Act in connection
with tree clearing and landfilling activities,
the dismissal order must be reversed
because the grand jury proceedings were not
impaired.
Commonwealth v. Clemmey (and a companion
case) (Lawyers Weekly No. 10-114-06) (29
pages) (Cordy, J.) (SJC) Motion to dismiss heard
by Connon, J., in Superior Court. Daniel I. Smulow
and Paul Molloy for the commonwealth;
Howard M.Cooper for Karl D.Clemmey and another
(Docket No. SJC-09463) (June 30, 2006).
Written statement to police -
Manslaughter instruction -
Provocation by third party
Where the Appeals Court vacated a Superior
Court judge’s order suppressing a murder
defendant’s written statement to state police
investigators,we affirm the Appeals Court’s decision,
as we conclude that the statement was
admissible.
Commonwealth v. LeClair (Lawyers Weekly
No. 10-006-06) (16 pages) (Greaney, J.) (SJC)
Motion to suppress heard by Patrick F. Brady, J.;
case tried before Francis F. Fecteau, J., in Superior
Court.Chauncey B.Wood on appeal for the
defendant; David Waterfall for the commonwealth;
Debra S. Krupp submitted a brief for
amicus curiae Committee for Public Counsel
Services (Docket No.SJC-09487) (Jan.11,2006).
Damages
Liquidated damages -
Burden of proof
Where a judge refused to enforce the liquidated
damages provision in a commercial
lease, this was proper, as defendant lessee satisfied
its burden of proving that “the liquidated
damages were,from the outset,intended by
[the plaintiff lessor] to serve as a penalty, and
not as a reasonable assessment of damages that
actually might occur.”
We go on to vacate as unwarranted an award
of counsel fees for the plaintiff.
TAL Financial Corp. v. CSC Consulting, Inc.
(Lawyers Weekly No. 10-057-06) (19 pages)
(Greaney, J.) (SJC) Case heard by Hinkle, J., in
Superior Court.Leonard M.Singer for the plaintiff;
Andrew C. Griesinger for the defendant
(Docket No. SJC-09518) (March 31, 2006).
Domestic relations
Divorce - Jurisdiction
Where (1) a plaintiff wife and defendant husband
were divorced in Massachusetts in 1990,
(2) the defendant moved to Tennessee and then
to Utah where he presently resides,(3) the plaintiff
moved to New York but then returned to
Massachusetts to live in 2003, (4) the plaintiff
subsequently went to court in Massachusetts arguing
that the defendant had failed to make child
support and medical payments for two years and
(5) a Probate & Family Court judge found the
defendant in contempt, we hold that the contempt
finding should stand as the Probate &
Family Court had proper jurisdiction to consider
the plaintiff’s complaint.
Klingel v. Reill (Lawyers Weekly No. 10-029-
06) (11 pages) (Sosman,J.) (SJC) Complaint for
contempt heard by Kopelman, J., in the Probate
& Family Court. Frank J. Baldassini for the
plaintiff; Richard E. Manelis for the defendant
(Docket No. SJC-09536) (Feb. 14, 2006).
Prenuptial agreement - Alimony
Where a judge struck down as invalid an antenuptial
agreement’s provision precluding the
wife from receiving alimony,that decision must
be reversed on the ground that “the agreement
was valid at the time it was executed and reasonable
at the time of divorce.”
Austin v.Austin (Lawyers Weekly No.10-195-
05) (15 pages) (Ireland,J.) (Greaney,J.,joined by
Spina, J., dissenting) (SJC) Case heard by Terry,
J., in the Probate & Family Court. Jacob M. Atwood,
Mark T. Smith and Erin Moran Shapiro
for Craig B.Austin; Dana Alan Curhan and Brad
P. Bennion for Donna M. Austin (Docket No.
SJC-09492) (Dec. 21, 2005).
Same-sex marriage -
Out-of-state residents
Where non-resident same-sex couples
sought a preliminary injunction barring the
enforcement of a state statute under which they
are prohibited from marrying in Massachusetts,an
order denying that request must be affirmed
as to the plaintiffs who reside in Connecticut,Maine,New
Hampshire and Vermont
because same-sex marriage is prohibited in
those states.
Cote-Whitacre, et al. v. Department of Public
Health, et al. (and a companion case) (Lawyers
Weekly No.10-055-06) (91 pages) (Spina,J.,with
whom Cowin and Sosman, JJ., join, concurring)
(Marshall, C.J., with whom Cordy, J., joins and
Greaney, J., joins in part, concurring) (Greaney,
J., concurring) (Ireland, J., dissenting) (SJC) Motions
for injunctive relief and for reconsideration
heard by Ball, J., in Superior Court. Michele E.
Granda and Gary D. Buseck for the plaintiffs;
Kevin D.Batt,Anne Robbins and Sarah R.Wunsch
for town clerk of Provincetown and others;
Peter Sacks for Department of Public Health and
others; the following submitted briefs for amici
curiae: Kenneth J.Parsigian and Shirley Sperling
Paley for Erwin Chemerinsky and others; Kathleen
M. O’Donnell, Mark D. Mason, Martin W.
Healy, Peter F. Zupcofska, Elizabeth M. Duffy,
Darien K.S.Fleming,Eleanor H.Gilbane,Shu-Yi
Oei, Matthew D. Schnall and Corin R. Swift for
Massachusetts Bar Association and another;Anthony
Mirenda, Vickie L. Henry, Sara K. Pildis
and Bradley E. Abruzzi for Asian American Legal
Defense and Education Fund and others;Barbara
J. Cox, Jonathan A. Shapiro, Maura T.
Healey, Joseph J. Mueller, Steven P. Lehotsky and
Miranda Hooker for Barbara J. Cox and others;
George I. Goverman, pro se; Benjamin W. Bull,
Glen Lavy, Randall Wenger, Dale Schowengerdt
and Philip D.Moran for Raymond Flynn and another
(Docket No.SJC-09436) (March 30,2006).
Education
Regional school district -
Amendment
Where the Commissioner of the Department
of Education denied approval of a proposed
amendment to a regional school district
agreement, a judgment upholding the Commissioner’s
decision should be affirmed on the
ground that the Commissioner did not exceed
his authority.
Town of Holden v.Wachusett Regional School
District Committee, et al. (Lawyers Weekly No.
10-199-05) (20 pages) (Marshall,C.J.) (SJC) case
was heard by Fishman, J., on motions for summary
judgment; entry of judgment ordered by
McCann, J., in Superior Court. John O. Mirick
for the plaintiff; Jane L. Willoughby for Department
of Education; Brian W. Riley for town of
Rutland (Docket No.SJC-09438) (Dec.29,2005).
University police
department - Public records
Where a plaintiff has requested,pursuant to
G.L.c. 66, §10, production of certain documents
in the possession of a defendant university’s
police department, the request was
properly denied on the ground that the documents
do not constitute public records.
The Harvard Crimson, Inc. v. President and
Fellows of Harvard College, et al. (Lawyers
Weekly No. 10-007-06) (16 pages) (Spina, J.)
(SJC) Case heard by Staffier, J., on a motion to
dismiss. Frances S. Cohen, Amber R. Anderson