Harvey A. Silverglate, BridgeTower Media Newswires
Big institutions hate to admit when they are wrong. Big government is as bad as big business. But when the criminal justice system balks at admitting error, the very soul of our society bleeds.
Once a jury proclaims a guilty verdict, it is a steep climb to convince an appellate court either to dismiss the conviction and the charges, or at least to order a new and fairer trial.
And after one appeal, the climb is even steeper to convince a court to revisit a case. This is what the courts call “finality.” What’s done is done is the sacred concept. And finality too often stands in the way of truth and justice.
The prosecution of James Rodwell for murder, and his life sentence (now in its 36th year), recently the subject of a dramatic true crime story by Boston Globe reporter Maria Cramer, is an example of a case that will not go away; too many people remain disturbed by the outcome.
I am one of those people. So is Rodwell’s current lawyer, Boston’s Veronica White, quoted by Cramer as saying, “I will keep fighting for Jimmy for the rest of my life.” Yes, the case is that compelling.
But this instinct that drives people to persevere when the system misfires is countered by the system’s self-protective reflex that makes it difficult to get judges to take a second, third or fourth look into a case, even when new and powerful evidence of a severe miscarriage of justice surfaces.
The central issue in Commonwealth v. Rodwell is whether Rodwell or someone else — likely one of the witnesses who pinned the murder on Rodwell — killed Louis Rose in 1978 in Somerville. Two inmate thugs, Francis Holmes and David Nagle, were the only witnesses to testify against Rodwell. Each was treated favorably by the police and prosecutors, though they claimed, dubiously, that none of the favorable treatment accorded them was a reward in exchange for their testimony.
Holmes testified that he witnessed the murder. Nagle, who had a long history of cooperating with the government in exchange for leniency, told the jury that Rodwell confessed to him while the two occupied neighboring cells, supposedly fortuitously, at the Billerica House of Corrections.
Rodwell faced another hurdle above and beyond the court system’s inexplicable denial that the witnesses against him were the product of rewards and inducements that should have resulted in the jury’s being informed and warned about the relationship between such rewards and a witness’s credibility. The District Attorney’s Office had lost its file of this prosecution! The judge seemed to take this remarkable development in stride, neither penalizing the prosecutors nor indulging in any presumptions in favor of Rodwell’s factual claims.
Instead, Superior Court Judge Thomas Billings, who struck down Rodwell’s seventh motion for a new trial, claimed the “unfortunate” loss of the file “was the result of negligence, not recklessness or bad faith.”
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The key question is whether judges, clothespins firmly attached to noses, will continue to pretend that justice was done, or whether they will rule at long last that James Rodwell has now presented sufficiently disturbing evidence to warrant a new trial.
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Besides, in a remarkable display of clairvoyance, Judge Billings theorized that “it is also highly unlikely that the file, if found and intact, would contain evidence proving or suggesting that David Nagle acted as a government agent in speaking with Rodwell.”
It was, one supposes, mere fate that put the two together and allowed Nagle, supposedly without any reward or inducement, to report to the jury on the supposed inculpatory admissions by Rodwell.
Rodwell is not an isolated case. There are far too many infamous cases in which the indications are strong that justice misfired, but the systemic preference for finality and the resistance to the confession of judicial error are strong.
This tension between justice and finality has long roiled the Massachusetts criminal justice system. It has produced considerable disagreement between the two camps of judges — those who view finality as the ultimate goal, and others who deem justice to be paramount.
In the controversial prosecution of members of the Amirault family growing out of allegations that they sexually abused children at the Fells Acres Day Care Center in Malden, Supreme Judicial Court Justice Charles Fried announced in 1997 a state “finality” doctrine. (Disclosure: I helped bring the appeal in that case.)
Despite voluminous evidence that the Fells Acres crimes never even occurred, Justice Fried persuaded a majority of the court to reject our petition for a new trial because the case had already bounced up and down in the courts too many times.
Justice Francis O’Connor wrote a powerful dissent in which he roared that “finality should not eclipse our concern that in our courts justice not miscarry.” But Fried had the majority on his side.
A few years later, Bernard Baran, sentenced to life in 1985 for an alleged rape of a child at the Early Childhood Development Center in Pittsfield, presented a powerful array of evidence to Superior Court Judge Francis Fecteau, proving that the case against him had been concocted when police and prosecutors coached the children on what to say.
After Judge Fecteau heard several days of testimony, he realized the enormity of the setup that put an innocent 19-year-old into prison for life.
Fecteau ordered Baran released. When the district attorney appealed, the Appeals Court, obviously horrified by the miscarriage of justice that cost an innocent boy much of his life, affirmed Judge Fecteau.
In a clear rebuke to Fried’s finality doctrine, the Appeals Court in Baran quoted Justice O’Connor’s Amirault dissent rather than Justice Fried’s majority opinion. The DA had the good sense not to seek further review in the Supreme Judicial Court, where Justice Fried was no longer sitting (he had by then returned to his teaching perch at Harvard Law School).
Into this cauldron of judges battling over justice versus finality has fallen James Rodwell. The prosecution of Rodwell reeks from start to finish.
The key question is whether judges, clothespins firmly attached to noses, will continue to pretend that justice was done, or whether they will instead rule, at long last, that Rodwell — despite his several prior interactions with the legal system — has now presented sufficiently disturbing evidence to warrant a new trial.
Put more simply: Will justice prevail over finality? Will Rodwell get a fair shake?
