Heard: November 8, 2018.
action commenced in the Supreme Judicial Court for the
county of Suffolk on September 6, 2017. The case was reported
by Lowy, J.
Jessica Langsam, Assistant District Attorney, for the
P. Sullivan, Special Assistant Attorney General, for the
Present: Gants, C.J., Lowy, Cypher, & Kafker, JJ.
case stems from three postconviction orders, issued by three
different Superior Court judges on the same preprinted form,
requiring that exhibits in the clerk's office of the
Superior Court in Middlesex County (clerk's office) be
transferred to local police departments. The exhibits at
issue are two firearms, live ammunition, a spent projectile
and casing, other spent casings, a BB gun, and a baby
carriage. The district attorney for the northern district
petitioned a single justice of this court pursuant to G. L.
c. 211, § 3, seeking to vacate the orders and to require
that all exhibits that had been transferred to police
departments be returned to the clerk's office. The single
justice reserved and reported the case to the full court.
issue before us is whether the clerk's office or the
police departments are responsible for retaining the exhibits
in these three separate criminal trials, each of which
resulted in conviction. We conclude that the exhibit-transfer
orders in two of the cases should be affirmed, and the order
in the third case affirmed in part and remanded in part.
broader issue is how to allocate responsibility for retaining
and preserving exhibits after criminal trials to maintain the
integrity of those exhibits. The importance of properly
storing exhibits cannot be overstated. Without exhibit
preservation, innocent people convicted of crimes may linger
in prison for decades because they are unable to perform
forensic tests through existing or emerging technologies. And
with respect to those guilty of criminal offenses whose
convictions are overturned or for whom the jury were unable
to reach a verdict, the loss of exhibits or the compromising
of the chain of custody might prevent reprosecution.
the limitations discussed infra, courts, and
particularly clerks' offices, have a statutory duty to
secure, preserve, and retrieve exhibits admitted in criminal
cases that result in conviction. Unfortunately, most of the
court houses in this Commonwealth lack the facilities and
trained staff to meet their statutory responsibility.
Clerks' offices do the best they can with the resources
and facilities provided, but what is needed is a state of the
art facility staffed by trained professionals with
appropriate organizational and retrieval capability and with
climate control to preserve adequately forensic and
scientific evidence. The need to preserve adequately these
exhibits presents the three branches of government with a
grave challenge that raises questions about the fair
administration of justice. There is a shared responsibility
among the branches of government to solve this problem. No
branch is capable of solving it alone.
Escobar, Matthew Thomas, and Timothy Berry were each tried
and convicted of various crimes in the Superior Court in
Middlesex County. In Escobar's trial, the Commonwealth
introduced in evidence a .40 caliber firearm. On the same day
that Escobar was found guilty, the judge signed a form order
returning the firearm to the Everett police
department. The Commonwealth moved twice for
reconsideration, asking the judge to order that the firearm
be retained and stored by the clerk's office. After a
hearing on each motion, the judge denied the motions in a
written decision and ordered that the firearm remain at the
Everett police department.
Thomas's trial, the Commonwealth offered in evidence a BB
gun and a baby carriage. After Thomas's conviction, the
clerk's office submitted to the judge a form order to
transfer the BB gun and baby carriage to the Lowell police
department. The Commonwealth filed a motion requesting that
the judge order the clerk's office to retain the
exhibits. After a hearing, the judge denied the motion in a
written decision and ordered that the exhibits be returned to
the Lowell police department. The judge also signed the form
order. The Commonwealth then filed a motion for
reconsideration, which the judge denied in an order written
on the face of the motion.
in Berry's trial, the Commonwealth offered in evidence a
.45 caliber handgun, live ammunition, a spent projectile and
casing, and other spent casings. The clerk's office asked
the judge to sign a form order returning the exhibits to the
Lowell police department, and the Commonwealth filed a motion
requesting that the exhibits remain in the clerk's
office. Without issuing a ...