Attorney Matthews Bark of Oviedo | Using Loophole, Attorneys Target Old Drunk Driving Cases

Source    : Vineyard Gazette
By        : Sara Brown and Julia Wells
Category  : Attorney Matthews Bark of Orlando, Attorney Matthews Bark of Oviedo

Attorneys in the Edgartown district court have found a loophole for challenging old drunken driving cases, all because a procedure to advise defendants of their rights may not have been followed by a former judge.

Judge Brian Rowe, who presided over the district court for 20 years, has been retired since 2005.

But a handful of defense attorneys who practice in the court have been successful in having old cases of operating under the influence (OUI) dismissed on behalf of their clients, amid claims that Judge Rowe did not properly carry out a procedure called colloquy. In at least two of those cases, the effect was to reduce criminal charges from a subsequent offense, which carries a harsher penalty, to a first offense. Although prosecutors have the option of bringing the cases again, in most cases the evidence has gone cold.

By definition a serious discussion, a colloquy in law is an exchange that is supposed to take place between a judge and a defendant when a guilty plea is entered. Among other things, the judge advises the defendant of his or her right to a trial and asks if the decision to enter a plea is being made with full knowledge of the consequences. The elements of colloquy are spelled out in the state’s rules of criminal procedure, and a box is checked on the docket to indicate that the colloquy occurred.

At least nine OUI cases have been or are in the process of being reexamined on the basis of Judge Rowe not administering the colloquy.

In one recent case, Vineyard defense attorney Jennifer Marcus filed a motion on behalf of her client asking that a 2002 drunken driving case be reopened because of a lack of colloquy. A motion for a new trial was granted in August of this year. Last month the case was dismissed by the commonwealth which was “unable to proceed,” according to court documents. As a result, Mrs. Marcus’s client had a drunken driving charge from June of this year amended from second to first offense.

The motion to reopen that case was accompanied by affidavits from Richard J. Piazza, a former prosecuting attorney with the Cape and Islands district attorney’s office who later did work as a defense attorney, and John Boyle, a longtime Edgartown attorney who handles criminal cases. Both said in sworn affidavits that they had never seen Judge Rowe conduct a proper colloquy.

Mr. Boyle said he had handled hundreds of cases before the judge, many of them drunken driving cases.

“I do not recall Judge Rowe ever giving a colloquy in operating under the influence cases,” Mr. Boyle said in part in the affidavit dated May 8.

In his affidavit Mr. Piazza concurred. “Not once did I ever see him conduct a full and proper colloquy of a defendant who tendered a plea,” he said. “His colloquy in operating under the influence cases consisted of the following questions that were addressed to me as the assistant district attorney: ‘Accident? Injury? Breathalyzer?’ I would answer accordingly, and Judge Rowe would sentence the defendant. On occasion, he would look at the defendant and ask him if he was guilty, and the defendant would reply ‘yes.’ ”

Reached by telephone at his home on Cape Cod this week, Judge Rowe declined to comment.

In October of this year, Edgartown attorney Charles Morano filed motions on behalf of a client in two prior OUI cases, one from 1986 and one from 1993. Mr. Morano asked that the dispositions be struck or set aside, claiming the plea was constitutionally invalid “because the record does not reflect a knowing and intelligent waiver of his constitutional rights.” In those cases, Mr. Morano, who formerly worked as a public defender from 1988 to 2014, filed his own affidavit. “I do not recall any instance during that time that the colloquy used by Judge Rowe in an operating under the influence case included advising the defendant of their right to trial, right to confront one’s accusers, or the privilege against self-incrimination,” he wrote.

In both cases, OUI charges against the defendant were dismissed by the commonwealth. As a result, a March 2105 charge of drunken driving, third offense, was amended to a first offense for Mr. Morano’s client.

(Read More : vineyardgazette.com/news/2015/12/17/using-loophole-attorneys-target-old-drunk-driving-cases?k=vg5677cedb04dce&r=1 )