Court rules two have to stand trial for 2004 murder despite delays caused by prosecution problems getting key witness to the stand

The Supreme Judicial Court ruled today that Suffolk County prosecutors will get a chance to prove murder charges against Kevin Graham and Ellis Golden for the 2004 murder of Thomas Hawkins on Theodore Street in Dorchester.

The ruling overturns a decision by a Superior Court judge to toss the case because prosecutors were not ready for trial exactly a year after their arraignments on charges they shot Hawkins to death during a robbery.

Massachusetts requires trials within a year of a defendant's arraignment unless the defendant agrees to delays or prosecutors can justify to a judge why additional delays are required. The judge himself gave prosecutors an extra week to get a recalcitrant witness to appear, which the state's highest court said was one reason to extend the year-long period. Also, the judge erred in dismissing the charges "with prejudice," the justices ruled.

In concluding that dismissal would not result in a miscarriage of justice, the judge gave inadequate weight to the public interest in bringing to trial defendants who are charged with murder and to the fact that barely one year had passed since the defendants' arraignments. Although dismissals without prejudice would not preclude the Commonwealth from seeking new indictments and prosecuting the cases anew, see Commonwealth v. Anderson, 402 Mass. 576, 579 (1988), it is nonetheless a severe sanction that must be exercised with great caution in a murder case that has moved with unusual speed to trial.

Graham and Golden were indicted and arraigned in 2016, but as their trial date approached, Suffolk County prosecutors asked for a delay to try to get the witness - who had originally approached police nearly a decade earlier in an attempt to get a plea deal in his own drug case and IDed the two as the murderers - to appear in court.

As the state's highest court recounted, that witness, now living in Florida, had grown tired of the whole matter and after Florida's equivalent of a district attorney's office tried to get him to go up to Boston, called a Boston Police detective to tell him to "leave me the fuck alone."

The judge in Graham and Golden's case agreed to give prosecutors a week to persuade the witness to fly up here. For some reason, he said that was not a formal "continuance," although the state's highest court ruled it was. When they asked for another extension, the men's lawyers asked for the charges to be dismissed - 367 days after Golden's arraignment and 369 days after Graham's. The judge granted the requests:

He declared that the "crucial" factor in this decision was the Commonwealth's failure to exercise due diligence in securing [the witness]'s attendance at trial, combined with what he characterized as the unlikelihood that the Commonwealth "will improve its lackluster efforts to date or exercise due diligence to produce an increasingly hostile witness." He also declared that the dismissals for failure to prosecute would have been without prejudice "[b]ut for the [one-year] violation."

The SJC said prosecutors erred in not seeking waivers from the year period for the time spent by the judge to consider and rule on pre-tiral motions made by the defendants - something that is allowed under court rules and would have bought them more than a month for each of them.

But the judge erred in not agreeing to extend the year-long period by the week he gave prosecutors to get the witness to Boston because another exemption calls for the trial-date clock to stop ticking due to "[a]ny period of delay resulting from the
absence or unavailability of the defendant or an essential witness."

The court ruled that a judge's continuance by any other name is a continuance and the fact that prosecutors did not formally ask for the time period to be extended because of that was not their fault:

Although the Commonwealth did not specifically seek to exclude time under these provisions, this was because of the unusual posture that the cases were in: the Commonwealth could not be expected to argue for an exclusion based on a continuance where the judge had specifically stated that he had granted no such continuance. Moreover, the Commonwealth did in substance make arguments in support of these exclusions when it filed its motion to continue, contending that it was entitled to a continuance because an essential witness was unavailable, and that a continuance would serve the ends of justice because it would not violate the defendants' right to a speedy trial. Where the Commonwealth could not have reasonably been expected to argue for these exclusions, but nevertheless did establish the grounds for applying them, we conclude that it cannot be held to have waived those exclusions.

There were also other pre-trial procedural wranglings for which prosecutors could have sought extensions, the court said.

The court continued that given the seriousness of the charges, the judge should have given prosecutors more time:

In such circumstances, we expect a judge presiding over a murder case to give the Commonwealth more time to locate a recalcitrant essential witness, and to dismiss for failure to prosecute only where it is apparent that continued diligent efforts would prove futile. Where the interests of justice so require, and where the defendant's appearance at trial can be assured, a judge may diminish the prejudice to the defendant resulting from such a continuance by releasing the defendant on bail with appropriate conditions, as the judge did here during the pendency of this appeal.