Indigency Appeals 101 Joseph N. Schneiderm a n, Esq. H a mpden County - - PowerPoint PPT Presentation

Joseph N. Schneiderman, Esq. Hampden County Bar Association May 1, 2020

Indigency Appeals 101

Indigency Appeals 101

• You can challenge the denials of funds during a criminal case and don't have to

wait for a conviction.

• I handled an indigency appeal in late February. That was fun! See Fuller v.

Comm., A.C. Docket Nos. 20-J-111, 20-J-118.

• Travaun Bailey (give him a big hand!) reached out to me two weeks later about a

similar issue and I talked him through it.

• We’ll cover the procedures here and common errors and issues.
• I adapted this course from a practice advisory I sent to the SDP and juvenile

panels.

Today’s Agenda

Indigency Appeals 101: Step 1: Filing the Appeal

• If your motion for funds is denied, under G.L. c. 261, §27D, you have seven (7) days to file a notice of

appeal in the trial court.

• You absolutely, positively, HAVE TO MAKE THIS CLOCK!
• The 7 Day Clock is Mandatory and Statutory.
• Miss the 7 day clock, there is no appeal/you have no appeal. Comm. v. Clark., 67 Mass. App. Ct. 832

(2006).

Indigency Appeals 101: Step 1: Filing the Appeal

• Reference Section 27D in your notice of appeal. (Models are attached at the end.)
• Doesn't have to be long, Judge denied on this date, pursuant to G.L. c.261, §27D,

defendant appeals. (Last slide is a model.)

• The Clerk HAS TO ACCEPT the notice of appeal. Skandha v. Clerk of the Suffolk

Superior Court, 472 Mass. 1017, 1019 (2015)

• If the Clerk won't accept the notice of appeal, get an order from the judge compelling

the clerk to accept it or try filing it in the appropriate appellate court.

• Compare Mass. R.A.P. 4: if you file a notice of appeal in an appellate court, they send

it to the lower court. That happened in my case-my colleague filed in the Appeals Court, they sent it to Suffolk Superior as a courtesy.

• However you do it, FILE IT IN 7 DAYS!

Indigency Appeals 101: Step 1: Filing the Appeal

• If there’s more the judge should consider in connection with your motion for funds,

file a motion to reconsider.

• Dovetails with the preservation rule: “There is something unseemly with telling a

lower court it was wrong when it was never presented with an opportunity to be right.” Comm. v. Alphas, 430 Mass. 8, 23 (1999) (Greaney, J., concurring)

• If your motion is still denied, file a fresh notice of appeal referencing the denial of

funds and the denial of reconsideration.

• ESPECIALLY IF THERE’S NOT A HEARING-per the Appeals Court.
• Notify the trial court clerk and the clerk of the appellate court.

Indigency Appeals 101: Step 2: Processing the Appeal

• Section 27D establishes a very comprehensive procedure.
• The appeals go in three different directions, depending on the lower court.
• When funds are denied in the Juvenile Court, the appeal goes to the Superior Court.
• When funds are denied in the District Court, the appeal goes to the Appellate

Division of the District Court.

• When funds are denied in the Superior Court, the appeal goes to the single justice

session of the Appeals Court-the “J” docket, not the Appeals Court panel docket- the “P” docket. You’ve successfully filed the notice of appeal, now what?

Indigency Appeals 101: Step 2: Processing the Appeal

• In an indigency appeal from the Superior Court to the Appeals Court single justice,
• ne does not need to pay a filing fee or move to waive the filing fee to enter the case
• n the “J” docket.
• The appeal automatically enters when the Appeals Court Clerk receives the record

from the Superior Court.

• This is unlike other matters on the “J” docket, i.e., motions for stay, late notices of

appeal, or docketing an appeal late-which require a motion to waive the filing fee and an affidavit of indigency.

• Not here. Appeals Court Clerk receives the record, you’re good to go.

Reaching the Appellate Docket

Indigency Appeals 101: Step 2: Processing the Appeal

• If you draw a stickler clerk in the Superior Court, move to waive the entry fee and

emphasize that a juvenile who is allegedly delinquent is deemed indigent by law under SJC Rule 3:10 (1)(h)(iv)-(1)(l) and SJC Rule 3:10(6A).

• Best practice with an indigency appeal from Juvenile Court: Call Bill Walsh or Shana

Wilson or Kevin Claffey (or the appropriate Clerk’s office if you’re not in Hampden.)

• Best practice with District Court: Call the Clerk of the Appellate Division in Boston.
• If you’re in Springfield District Court, call Rosemary Berard (she handles record

assembly) and let her know this is coming-and/or let your session clerk know this is coming. Reaching the Appellate Docket

Indigency Appeals 101: Step 2: Processing the Appeal

• Section 27D establishes a comprehensive procedure for the lower court clerk/judge.
• The lower court clerk has to assemble a record of anything relevant to the case.
• Tell the lower court clerk to follow the procedure in 27D when assembling a record-individual

clerks don’t see them as often.

• This is unlike direct appeals where one files a brief and appendix-or other matters on the single

justice docket where one files an appendix.

• Indeed, Rule No. 1 of single justice practice generally is that the single justice has to have an

adequate record to make a decision-and you include anything relevant.

• The motion judge has to issue findings-also part of the record.
• Under 27D, within three (3) days of receipt of the notice of appeal, the judge has to issue

findings, if they haven’t done so already.

Reaching the Appellate Docket

Indigency Appeals 101: Step 3: Resolving the Appeal

You’ve reached the appellate court, what happens now?

• If you’re in the Appeals Court, those clerks are (GOOD)

sticklers!

• The Appeals Court Clerk will thoroughly review the record

that the Superior Court sent up.

• If something’s missing (like findings), the Appeals Court

Clerk will tell the Superior Court clerk, send us the missing X,Y,Z.

• The Appeals Court Clerk will stay action on the appeal-or

even vacate entry on the “J” docket.

• You might even win summarily-the failure to hold a hearing

before denying funds is error in and of itself! Adjartey v. Central Housing Court, 481 Mass. 830, 842 (2019)

Indigency Appeals 101: Step 3: Resolving the Appeal

• You have an adequate record from the lower court clerk…now what?
• The Appeals Court single justice usually resolves it on the papers.
• The single justice can schedule a hearing-you can also always ask for one too.
• You can, if you want to, ask for permission to file a brief or a memorandum of law, if it’s a novel or

complex issue. (Call and let the Clerk know.)

• AC doesn’t reject additional filings from an advocate-so long as there’s a docket number.
• Depending on how the Appellate Division or the Superior Court handles this, do file a memo or a

brief to educate your judge (esp. Superior Court on juveniles.)

• The AC single justice sees some of these once a month every two years.
• If time is of the essence, move for a stay of trial court proceedings pending appeal.

What Happens on the Appellate Docket

Indigency Appeals 101: Step 3: Resolving the Appeal

• G.L. c.261, §27D explicitly authorizes the single justice/reviewing court to stay trial

court proceedings during an indigency appeal.

• If you want to, move for a stay (like of an imminent trial or of a motion hearing.)
• Moving for a stay can be a vehicle for self-help and zealous advocacy in two regards.
• 1. If the lower court clerk sends an inadequate record, you can fill in those gaps and

avoid having deferred action on your appeal by pointing the appellate court in the right direction.

• 2. Another opportunity to open up the arguments of why you deserve funds.

Seeking a Stay Pending Appeal

Indigency Appeals 101: Step 3: Resolving the Appeal

• Mass R. Civ. Pro. 62/ Mass. R.A.P. 6 govern stays.
• Four prong test-for our civil and criminal practitioners, like getting a temporary injunction.
• 1. Likelihood of success on the merits: is there a question of law that offers success-i.e., did the

judge not hold a hearing, apply the wrong standard, etc.

• 2. Irreparable harm: Your client’s in jail, facing jail, risking COVID exposure
• 3. Stay will not harm the opposing parties: Compare Comm. v. Dotson, 402 Mass. 185, 187 (1988)

(the Commonwealth “has no proper role to play in a [criminal defendant’s] motion for defense funds unless the judge requests [their] participation.”)

• 4. On balance, a stay is in the public interest/won’t cause public harm: Yes, we don’t like dragged
• ut proceedings/like conserving public funds, but those can’t override liberty interests.
• Stays Pending Appeal

Indigency Appeals 101: Step 3: Resolving the Appeal

• How did seeking a stay work in a real case?
• In Fuller, the Suffolk Clerk sent a woefully inadequate record in 20-J-111, which hit the docket on

February 24.

• I moved for a stay under Docket No. 20-J-118 on February 25.
• I included a 30 page appendix-everything that the lower court clerk should have sent.
• The appendix: Not hard to put together. Docket sheets, the motion for funds, a motion to

reconsider (if any), the judge’s order, the notice of appeal-anything relevant to the issue.

• On February 27, Justice Ditkoff granted the indigency appeal and dismissed the stay application

as moot.

• Mr. Fuller got funds and was ultimately found NOT SDP!
• Case Study of a Stay Pending Appeal

Indigency Appeals 101: Step 3:Resolving the Appeal

• Procedural: Failure to hold a hearing. Adjartey, G.L. c.261, §27C(4) (“Trial court “shall not

deny any request [for funds] without first holding a hearing thereon…”)

• Substantive: Applying the wrong substantive standard.
• An indigent person deserves funds “to prevent [him from being at] a disadvantage in

preparing or presenting his case adequately, in comparison with one who could afford to pay for the preparation which the case reasonably requires.” Commonwealth v. Lockley, 381

• Mass. 156, 160-161 (1980)
• Judges conflate with preparation with trial admissibility. NOT THE STANDARD!
• See e.g. Comm. v. Zimmerman, 441 Mass. 146, 152-153 (2004)
• More useful discussion in the Blumenson and Leavens Treatise, Chapter 8.4B

What are some common errors?

Indigency Appeals 101: Step 4: Wrapping Things Up

• Under 27D, the reviewing court’s decision (whether it’s the

Appeals Court single justice or otherwise) is final.

• In truly extraordinary circumstances, you could file a 211/3

petition to the SJC single justice.

• But…the SJC Single Justice will be wary of acting on it/granting

relief because the statute reads “decision shall be final.”

• If there’s recurrent issue, you can ask the Appeals Court single

justice to reserve and report the case to an Appeals Court

• panel. (Also may get you somewhere on a 211/3.)
• Justice Milkey reported the issue of how veterans benefits

affect the indigency calculus in Reade v. Galvin, 472 Mass. 573 (2015)

• For juveniles, you could also ask a Superior Court judge to

report the issue to the Appeals Court under Mass. R. Crim. Pro. 34/Mass. R. Civ. Pro. 64.

Indigency Appeals 101: COVID Specific Thoughts

• You need an expert to fashion a release plan/revise and revoke-like a social worker for someone with

mental health and housing issues-this is the very definition of the practice of social work (G.L. c.112, §130)

• Competency-a 16(f) dismissal/a 17(b) defense-why is someone not competent but not a danger and its in

the interests of justice or do they have a defense on the merits?

• You need an expert to establish links between medical conditions, risks of incarceration, and

transmission of COVID.

• Remember, standard is not admissibility at trial. Standard is would a person of means want and need

this so as not to be disadvantaged.

• Age and risk of reoffense.
• Juvenile brain development.
• Your thoughts/your issues that you are seeing?

Model Notice of Appeal