Man released on parole for murder following the Blizzard of '78 gets to enjoy his freedom because DA's office screwed up appeal of a change in his sentence, court rules

Hubert Smith, who spent 44 years in prison for murdering a man making an emergency oil delivery in Roxbury a couple days after the Blizzard of '78, will not have to answer to the charge any longer, the Supreme Judicial Court ruled today.

Smith was initially sentenced to life without parole following his conviction for first-degree murder for the death of Max Fishman on Wyoming Street on Feb. 10, 1978, but on August 4, 2021, a Superior Court judge agreed with his plea to reduce the conviction to second-degree murder - which allows for parole.

The judge concluded that the plea deal the Suffolk County District Attorney's office offered Smith then - second-degree murder but only if his co-defendant agreed to the plea as well - was "fundamentally unfair" to Smith and violated his right to due process. The co-defendant, then just 15, refused the deal and both went to trial - with the jury convicting Smith of first-degree murder and the teen of second-degree murder.

The Suffolk County District Attorney's office at first agreed to the reduction in the sentence, but then changed its mind and filed a notice nine days later that it planned to appeal the ruling. But then, according to the court's summary of the case, the DA's office missed the required 30-day deadline to file either a detailed explanation why or to ask for an extension.

The assistant DA handling the case finally filed this "gateway petition" on Jan. 21, 2022, more than five months late and just six days before the state parole board was to meet to consider granting Smith parole - which it did, concluding unanimously he was completely rehabilitated.

Smith was released from prison on July 6, 2022.

In its filing with the state's highest court on the conviction change, the DA's office argued it had a number of reasons for being late in filing its formal petition: Miscommunication among assistant DAs on evidence and transcripts, overwork caused by a shortage of assistant DAs and the fact that the prosecutor handling the case had to spend time in quarantine because she and family members contracted Covid-19.

A single justice agreed to accept the petition, which Smith appealed to the entire court, which ruled today that most of the cited reasons were not, in legal terms, "good cause" for a delay and so dismissed the DA's appeal. This means that Smith, now in his mid-60s, no longer has to worry about being returned to prison for the case.

Even allowing for delays caused by Covid-19, most of the lapse was due to other reasons, the court concluded:

We do not doubt that the workload at the time this case was assigned to this prosecutor was challenging. Nonetheless, miscommunications concerning whether transcripts have been ordered, and an increased workload, do not constitute good cause justifying the period of delay here.

Still, the justices agreed that, in general, 30 days may not be sufficient time to produce a potentially complicated and lengthy legal brief in a capital case and so ruled that, going forward, prosecutors will have 60 days to file such petitions.