Court splits on compensation eligibility for wrongfully convicted defendant

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Because of the implications of a recent divided Appeals Court’s decision on the state’s erroneous convictions statute for future potential plaintiffs, a petitioner who was denied the opportunity to seek compensation is asking the Supreme Judicial Court for further review.

In Cruz v. Commonwealth, the issue was whether the plaintiff was eligible to pursue a claim for compensation under G.L.c. 258D.

To the panel’s majority, that assessment turned on a determination that the facts adduced at the plaintiff’s criminal trial supported a conviction of assault and battery, a crime for which he had been indicted but that prosecutors voluntarily dismissed before the case went to the jury.

Citing the SJC’s 2010 decision in Guzman v. Commonwealth, Judge Amy Lyn Blake noted that Sections 1(B) and (C)(vi) of the statute “perform a screening function” that limits the class of claimants eligible to bring suit.

The plaintiff argued that, to meet the eligibility requirement under §1(C)(vi), he needed to show only that he was granted judicial relief on grounds that tend to establish innocence of the crime for which he was tried.

But the court’s majority accepted the prosecution’s argument that he was ineligible to sue because the reversal of his convictions on charges of indecent assault and battery did not tend to establish his innocence on the abandoned charge of assault and battery.

Blake acknowledged that the law does not require a plaintiff to make the same showing — clear and convincing evidence of his innocence — that he would have to make to obtain compensation.

But here, the court could find in the “four corners of the underlying judicial decision” not only a lack of evidence tending to establish innocence but evidence pointing in the other direction.

“Because his overturned convictions are not probative of his actual innocence under §1(B)(ii), Cruz is not eligible to sue the Commonwealth under G.L.c. 258D,” Blake concluded.

But to dissenter Peter J. Rubin, the majority’s decision guts the erroneous convictions statute.

“The majority turns the relatively low bar set by the Legislature for determining which wrongfully incarcerated plaintiffs can bring a claim under the statute into an insurmountable wall barring a large segment of those innocent individuals who have wrongfully been imprisoned from seeking the redress the Legislature provided,” Rubin wrote.

An insurmountable bar?

Perhaps unsurprisingly, criminal defense attorneys agree with Rubin and hope the SJC acts to rectify the situation.

The appellate attorney for the plaintiff in Cruz, Steven J. Rappaport of Lowell, called the majority’s opinion “disturbing,” given the ramifications it could have on eligibility for compensation for the wrongfully convicted.

Rappaport said that, in his client’s case, three indecent assault and battery charges had gone to the jury, and the jury acquitted him of one. But the abandoned assault-and-battery charge had never been specifically tied to any of the three indecent-assault-and-battery charges, making the Appeals Court’s decision even more mystifying.

Rappaport acknowledged that he may well have had a steep challenge in the second phase of the process to obtain compensation, establishing his client’s innocence by clear-and-convincing evidence. But he believes that the Legislature intended such clients to at least get their day in court.

“This case is much more important for other people than Mr. Cruz.”

— Steven J. Rappaport, counsel for the plaintiff in Cruz v. Commonwealth

Criminal defense attorneys were quick to offer up hypothetical minor, abandoned charges that would nonetheless serve as a roadblock to compensation to illustrate the potential injustice that might ensue if the Appeals Court’s decision in Cruz is not overturned.

“If this decision stands, a plaintiff who has spent 20 years in prison for murder he did not commit but who gave a false name at the time of arrest cannot recover under the statute,” said Cambridge attorney Derege Demissie.

Rappoport used the example of a defendant wrongly accused of armed robbery who was also charged with driving without a license to what happened to be the crime scene.

Defendants get indicted on such misdemeanors that are then not brought to trial “all the time,” Rappoport noted.

Given the decision in Cruz, trial courts will be forced to render an opinion on guilt or innocence to determine if a plaintiff can bring suit based on dismissed and potential charges, even though facts pertaining to those charges were not fully developed or even addressed at trial, Demissie said.

“The majority’s decision has essentially nullified the statute by imposing an eligibility bar too high to surmount,” he added.

Boston criminal appellate attorney Patricia A. DeJuneas said it is simply not the role of an appeals court to speculate what a jury may have done if given a charge that was not before them.

The fact that the prosecution has abandoned a charge is also a “pretty clear indication” of factual innocence, she noted.

The Appeals Court decision sets up something of a Catch-22 for criminal defense attorneys who will now have to devise ways of getting into the record evidence that tends to establish their clients’ innocence on charges that the prosecution is not even pursuing, according to DeJuneas. A judge is unlikely to tolerate that, she said.

“I don’t know how to get around it except to improperly argue issues you should not be arguing,” she said.

Because he views the Appeals Court’s decision as neither logical nor equitable, potentially precluding too many people who wrongly served a lot of time in prison from seeking compensation, Rappaport felt compelled to seek further review.

“This case is much more important for other people than Mr. Cruz,” he said.

Crossing ‘acceptable norms’

In 2014, plaintiff Roberto Cruz met “Jane,” a 13-year-old girl with Asperger’s syndrome who was serving as an intern at the aviation company where he worked.

Almost 60 years old at the time, Cruz waved Jane over to him and told her that he would like to give her a hug, but they should do that in a different room.

Jane then went into a hallway and waited for Cruz for a couple of minutes before returning to work. Later, Jane saw Cruz and asked if he still wanted a hug. He hugged her briefly around the shoulders.

Cruz then asked Jane if she wanted another hug before leading her into a separate room where no one else was present. He gave her a second, tighter hug and kissed her on the neck, then hugged her “very tight” a third time, lower down on her waist and hips, which left her “a little bit alarmed.”

Cruz then grabbed Jane’s shirt at her right hip and lifted it up slightly before pausing and putting it back down, never exposing or touching any of Jane’s skin. He also grabbed her hand.

On direct appeal, Cruz argued that the evidence was insufficient to support his two convictions for indecent assault and battery. In a 2018 decision, the Appeals Court agreed that prosecutors had not proven that Cruz “intruded upon a private or intimate area of the body so as to be considered ‘indecent’ within the meaning of the criminal statute.”

However, within that ruling, the court also noted the age disparity between Jane and Cruz and the nature of his conduct, opining that the jury could have found that Cruz knew that his actions were inappropriate.

Not only might Cruz’s conduct have “crossed acceptable norms of appropriate behavior,” but it “may have constituted the criminal offense of assault and battery, in the sense of an intentional, but unconsented to, touching,” the court wrote.

Cruz then filed a complaint in the Superior Court seeking compensation under G.L.c. 258D. The commonwealth moved for summary judgment, arguing that Cruz was ineligible to bring suit under the statute because his underlying convictions were not reversed on grounds tending to establish his innocence of all crimes charged in the indictments.

A Superior Court judge denied the commonwealth’s motion, finding that the commonwealth’s failure to present sufficient evidence of an essential element of the crime was probative of innocence.

The government then appealed.

‘Grave damage’ foreseen

In Rubin’s view, the majority decision in Cruz will make it impossible for exonerated individuals to sue “if either, as happens in so many cases, including this one, the commonwealth has dismissed any of the charges against them, or a judge can imagine some hypothetical, uncharged crime the individual’s ‘behavior … may constitute,’” including a crime that was never charged or “perhaps never even thought of.”

“The court says that unless the judicial decision exonerating the wrongfully imprisoned individual opines about his or her innocence of each such charge and crime, this exoneree no longer has the remedy the Legislature crafted both to deter wrongful imprisonment and to compensate for it,” the judge wrote. “But because courts lack jurisdiction to opine on charges or crimes not before them, there can never be such a judicial decision.”

The majority may view Cruz’s behavior with “disgust,” Rubin noted. “But the court’s ruling today applies to all unlawfully imprisoned individuals who have been exonerated by our courts, not just those individuals a court may view with distaste.”

With G.L.c. 258D, the Legislature was trying to provide justice for exonerated people who had been imprisoned illegally, and the Cruz decision “will do grave damage” to that effort, Rubin wrote.

In Guzman, the SJC had cautioned against just the type of merger of the eligibility requirement and weighing of the merits of the claimant’s case that the majority had performed, the judge noted.

“The approach taken instead by the court majority unfortunately amounts to the examination of the ultimate merits, and usurpation of the jury function, that the Supreme Judicial Court has repeatedly warned us the eligibility provision does not allow,” Rubin wrote. “And it leaves a hollowed-out statute, which is not what either the Legislature, or the Supreme Judicial Court in construing the statute, intended.”

Cruz may well fail to persuade a second jury of his innocence by clear and convincing evidence, Rubin acknowledged.

“I have no idea and neither do my colleagues,” he wrote. “But the court today deprives him of the opportunity to do so, and the jury of the opportunity to decide.”

The majority countered that Rubin’s dissent took an “overly broad view” of a statute never meant to sweep away sovereign immunity so broadly.

“The flaw in the dissent is that it ignores the fact that the statute includes untried crimes set forth in the indictments and uncharged felonies that can be discerned from the facts and circumstances of the case for purposes of eligibility to sue,” Blake wrote. “The dissent’s theory fails to honor the Legislature’s comprehensive approach to evaluating eligibility for relief as well as its overarching purpose of effectuating only a limited waiver of the Commonwealth’s sovereign immunity.”