Heard: February 10, 2016.
found and returned in the Superior Court Department on
January 7, 2011.
postconviction emergency motion for judicial intervention to
prohibit inquiry of the jury, filed on July 23, 2015, was
heard by Jeffrey A. Locke, J., and questions of law
were reported by him to the Appeals Court.
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
K. Anderson, Assistant District Attorney Edmond J. Zabin,
Assistant District Attorney, with her) for the Commonwealth.
Chauncey B. Wood for the defendant.
Neil Austin, Caroline S. Donovan, & David A.F. Lewis, for
Massachusetts Association of Criminal Defense Lawyers, amicus
curiae, submitted a brief.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
consider here five questions reported by a Superior Court
judge to the Appeals Court concerning the effect of an
amendment to Mass. R. Prof. C. 3.5 (c), as appearing in 471
Mass. 1428 (2015) (rule 3.5 [c]), regarding an attorney's
ability to communicate, postverdict, with jurors who
deliberated on, or were discharged from, the attorney's
client's case. Rule 3.5 (c) became effective on July 1,
February 13 to March 22, 2012, the defendant was tried in the
Superior Court in Suffolk County on charges of murder in the
first degree (four counts), G. L. c. 265, § 1; home
invasion, G. L. c. 265, § 18C; armed robbery, G. L. c.
265, § 17; armed assault with intent to murder, G. L. c.
265, § 18 (b); aggravated assault and battery by means
of a dangerous weapon, G. L. c. 265, § 15A (c0; carrying
a firearm without a license, G. L. c. 269, § 10 (a.);
and trafficking in cocaine, G. L. c. 94C, § 32E (b). The
jury were deadlocked on nine of the charges and found the
defendant not guilty on the tenth (trafficking in cocaine).
The trial judge declared a mistrial. On October 2, 2012, the
defendant filed a motion for a change of venue on account of
extensive media coverage, which was allowed in part. The
defendant was retried before a jury from Worcester County
sitting in the Suffolk County Court House from October 16 to
December 18, 2012. In the middle of deliberations, an issue
concerning a deliberating juror's compliance with the
judge's instruction not to consult extra-trial research
arose. After individual inquiry of each deliberating juror,
the judge dismissed one juror and, based on a finding that
the remaining jurors were not affected by exposure to
extraneous information, denied the defendant's motion for
a mistrial. The jury continued to deliberate. One week later,
the jury found the defendant guilty on the four indictments
charging murder in the first degree as well as on those
charging home invasion and armed robbery, and not guilty on
the remaining three charges. The defendant filed a notice of
appeal on January 2, 2013; the appeal has been docketed in
this court but has not yet been briefed or argued.
14, 2015, two weeks after the effective date of rule 3.5 (c),
one of the defendant's appellate attorneys sent a letter
to the assistant district attorney representing the
Commonwealth on appeal, informing her of defense
counsel's intention to contact the deliberating jurors in
the defendant's second trial pursuant to amended rule 3.5
(c), and attached a copy of the proposed letter that counsel
intended to send to the jurors. On July 21, 2015, the
defendant's appellate counsel sent via first class mail
the letters to the deliberating jurors. Later that same day,
the assistant district attorney sent an electronic mail
(e-mail) message to the defendant's appellate counsel,
notifying them that the Commonwealth would file a motion to
prohibit juror communication, and further explained that
"[i]t is the Commonwealth's position that
postconviction inquiry of jurors remains prohibited as a
matter of law."
23, 2015, the Commonwealth filed an emergency motion for
judicial intervention to prohibit postconviction inquiry of
the jury; the defendant's appellate counsel filed an
opposition. After hearing, the motion judge, who had been the
trial judge in the defendant's second trial, agreed to
report to the Appeals Court five questions concerning rule
3.5 (c), ordered that the defendant's appellate counsel
not communicate further with the discharged jurors pending
further order of the court, and further ordered that counsel
retain sealed and unread any written or e-mail responses they
might receive from jurors in response to the letter
five reported questions are the following:
"1. In revising Rule 3.5 of the Massachusetts Rules of
Professional Conduct to permit attorney originated
communications with discharged jurors, did the Supreme
Judicial Court implicitly overrule the prohibition against
attorney originated communications with jurors as set forth
in Commonwealth v. Fidler, 377 Mass. 192, 203-204
"2. In generally adopting the American Bar
Association's Model Rule 3.5 containing the language
'prohibited by law, ' did the Supreme Judicial Court
intend Commonwealth v. Fidler to be continuing
"3. If the answer to question two is 'no, ' then
what types of contact with discharged jurors by an attorney,
if any, are 'prohibited by law' under Rule 3.5(c)
"4. If the answer to question one is 'yes, ' and
the answer to question two is 'no, ' does revised
Rule 3.5 permit attorneys to communicate with jurors who were
discharged prior to July 1, 2015?
"5. If the answer to question four is 'yes, ' in
light of Commonwealth v. Fidler, are attorneys
required to seek approval from the court prior to contacting
transferred the judge's report from the Appeals Court to
this court on our own motion.
Attorney disciplinary rules and the Fidler
October 2, 1972, this court adopted S.J.C. Rule 3:22, the
Canons of Ethics and Disciplinary Rules Regulating the
Practice of Law, as appearing in 359 Mass. 796 (1971).
Disciplinary Rule (DR) 7-108 (D) governed postverdict contact
with jurors. This rule permitted attorneys to initiate
communication with jurors postverdict without permission of
the court, providing that "the lawyer shall not ask
questions of or make comments to a member of that jury that
are calculated merely to harass or embarrass the juror or to
influence his actions in future jury service." S.J.C.
Rule 3:22, DR 7-108 (D), as appearing in 359 Mass. 826
(1971). The text of DR 7-108 (D) was essentially identical to
the Model Code of Professional Responsibility that previously
had been adopted by the American Bar Association (ABA).
years later, this court decided Commonwealth v.
Fidler, 377 Mass. 192 (1979). The defendant in
Fidler was convicted of armed robbery after a jury
trial in the Superior Court, and thereafter filed a motion
for a new trial based on alleged juror misconduct. See J_d.
at 193-194. In support of the motion, the defendant filed an
affidavit of one of the deliberating jurors. See J_d. The
affidavit averred that the jury considered in their
deliberations matters the judge had instructed them to
disregard, and also that extraneous information had been
introduced into the jury deliberations in the form of
statements by a juror about factual matters relating to the
defendant that had not been presented in evidence at trial.
See J_d. The trial judge denied the defendant's motion
for a new trial without an evidentiary hearing. In
considering the defendant's appeal from this denial, this
court affirmed the common-law rule, first discussed by this
court in Woodward v. Leavitt, 107 Mass. 453, 460
(1871), but having earlier roots in England, that inquiry
into jury deliberations is prohibited. In particular, we
reiterated that it is impermissible to impeach a jury verdict
with juror testimony concerning the contents of the
jury's deliberations, and also impermissible to
"permit evidence concerning the subjective mental
processes of jurors, such as the reasons for their
decisions." Fidler, supra at 198.
After discussing these common-law precepts, we proceeded to
define and adopt a separate rule that, going forward, would
require all postverdict contact with and interviews of jurors
by attorneys to occur under court supervision and ...