BOSTON (CN) — The Massachusetts Supreme Judicial Court appeared unlikely Monday to expand double-jeopardy protections for criminal defendants in the state after the prosecution of an accused drunken driver ended in a retrial order.
“This is a tough set of facts to say that if we're not doing enough, this is the case that we have to now say we're going to do more,” Associate Justice Serge Georges Jr. said in appellate arguments this afternoon.
The case stems from a traffic stop that occurred early one Sunday morning in October 2018. Massachusetts State Trooper Matthew Kane pulled over Joshua Perrier for going twice the 30 mph speed limit. After smelling alcohol, he had Perrier run through the field tests and put him under arrest.
Massachusetts drivers under the age 21 who have a blood alcohol percentage more than 0.02 could have their licenses suspended, and Perrier's appellate counsel noted in a brief to the state Supreme Court earlier this year that the jury might apply a lower burden of proof for Perrier if they knew that he was 19.
The judge agreed to prohibit mention of Perrier's age, but the prosecutor touched on it during closing arguments after noting that Perrier told the officer he had not been drinking when the question was asked of him.
“Why do you think he might’ve said no while he was driving that car? … maybe he’s young — maybe he was too young.”
When the jury returned a guilty verdict, Perrier moved for a mistrial. The judge did not go quite that far, saying he thought the prosecutor’s comments were not deliberate, but did grant a request for a new trial. Perrier is appealing for more, with his attorney noting how federal and state courts around the country expanded double jeopardy protections after the Supreme Court found in the 1982 case Oregon v. Kennedy that criminal defendants enjoy protection from another trial when prosecutors act in bad faith.
Nicholas Matteson claimed at oral arguments Monday that it is too narrow a protection to only trigger double-jeopardy protections only when a mistrial is declared.
Matteson asked “the court to recognize broader double jeopardy rights in the context of ... where a defendant's trial is terminated by prosecutorial misconduct or negated by prosecutorial misconduct.”
Associate Justice Frank Gaziano meanwhile called Matteson’s task “a tough row to hoe,” given that the jurors sitting in the courtroom could observe Perrier and see his youth.
Matteson responded by saying the judge’s order limiting the mention of Perrier’s age would prevent any inferences made about what standards the jury should apply. Furthermore, the judge had found earlier in the proceedings that mention of the age would be prejudicial, he said.
Repeating the state's argument from its brief, Thomas Townsend, chief of the appellate unit of the Northwestern District Attorney Office, said the conduct of the prosecutor in Perrier’s case boiled down to a mistake: “It was an honest mistake by the prosecutor and the judge so found.”
While Townsend said the right of double jeopardy can be changed to adapt to “the evolving times and change in circumstances,” Perrier’s attorney did not demonstrate that the current status quo in the state was unworkable.
Associate Justice Scott Kafker noted, however, “there is a lot of dissatisfaction out here when we look at the case law” surrounding double jeopardy in other states.
In those jurisdictions, Townsend said, courts may view their prosecutors as being overzealous. In the commonwealth, he said, prosecutors are not gunning for mistrials.
“I’m unaware of any prosecutorial goading that would give rise to a double jeopardy bar, and certainly not present in this case,” Townsend said.
While each side had 15 minutes to argue their cases, Townsend only used about seven minutes before he told the justice he was done and stepped from the podium.
The court then stood in recess; it is unclear when they might rule in the case.
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