The June 25 hearing in Chelsea District Court had been delayed three times already because the defense attorney was running late and then because he did not have the right file.
By the time Robin Lee Scalesse stood before Judge Benjamin Barnes to face charges that she beat up her former boyfriend’s new girlfriend, the prosecutor had gone to another courtroom.
The judge told another assistant district attorney that she could “walk, not run” to fetch the prosecutor assigned to the case.
But before the prosecutor could return less than 10 minutes later, Barnes had declared Scalesse not guilty without hearing any evidence, the court transcript shows.
“Your honor, I’m right here,” said the dumbstruck prosecutor, Michael LaFleur, who arrived less than a minute after the judge’s decision. “Your honor, there’s a victim here,” referring to the distraught woman who had raced out of the courtroom.
The case, described as highly unusual by legal experts, has prompted Suffolk District Attorney Daniel F. Conley to ask the Supreme Judicial Court to step in and undo Barnes’s ruling, saying that there can be no trial when one side is not even in the room.
“Any judge should know that a trial cannot and has not been conducted when the prosecutor is not present and does not call a witness,” Conley’s office wrote in its appeal. “The fact that a trial involves adverse parties and witnesses is common knowledge among all competent members of our society.”
Barnes, who will hold a hearing Tuesday on the prosecutor’s motion for a written decision in the case, could not be reached for comment. Court spokeswoman Jennifer Donahue said the judges’ code of conduct prohibits them from commenting on a pending case.
Barnes could reverse his ruling and throw out his findings at the hearing, experts said.
A spokesman for the Massachusetts Bar Association’s criminal justice section said he has never seen a judge find a defendant guilty or not guilty without both sides being present.
“You can’t stump me usually, “ said Peter Elikann, a criminal defense lawyer and Massachusetts Bar Association spokesman. “I’ve been a lawyer for 33 years, and I never heard of anything like that.”
Elikann said judges sometimes dismiss cases when the prosecutor seems to be “dilly dallying” and slowing down the legal process, but not when the prosecutor is ready for trial and has witnesses waiting.
Barnes has a “fine reputation for his demeanor and temperament,” Elikann said. “People generally like him. He listens and isn’t nasty or rude.”
The victim, a 51-year-old woman from Everett who said she was attacked by her boyfriend’s former girlfriend, had been waiting eight months for her day in court.
‘Any judge should know that a trial cannot and has not been conducted when the prosecutor is not present and does not call a witness.’
She told police that she was walking to work on Oct. 6, 2013, when Scalesse jumped out of a car and started arguing with her, poking a finger in the victim’s face. She then punched her in the head, ripped out her earring, and scratched her neck, the victim told police. “You got what was coming to you,” the woman quoted Scalesse as saying.
She came to court ready to testify on May 15, but there were not enough potential jurors at the courthouse and the trial had to be rescheduled. The second trial date was scheduled for June 25.
The victim left work and waited for her turn to be heard at the Chelsea courthouse. She sat in the courtroom for two hours as Barnes repeatedly delayed the hearing for the benefit of the defendant. But before she had a chance to say anything, it was over.
Scalesse’s lawyer had initially informed the judge June 25 that Scalesse planned to plead guilty to assault and battery. But when the case came up for hearing at 11:53 a.m., Scalesse indicated to the judge that she wanted a trial before the judge instead.
When Barnes agreed to the trial, the only prosecutor in the courtroom, Myriam Feliz, asked the judge if she could “run down and have ADA LaFleur come up,” according to a transcript of the hearing.
“Just walk. You don’t have to run,” the judge said at 12:03, according to the transcript.
At 12:11, the judge started the trial, without LaFleur.
“After hearing no witnesses and no information from the Commonwealth and they’re not present, the court’s going to find the defendant not guilty. Thank you,” Barnes said at 12:12.
Court was adjourned at 12:12:50, the transcript shows.
Twenty seconds later, LaFleur showed up. “Your honor, I’m right here. So found not guilty?” he asked incredulously. “He found not guilty? He found not guilty?” the prosecutor kept asking.
“I was speechless, upset, and confused” said the woman, whose name does not appear in court documents and who spoke to the Globe on condition of anonymity. “Who does that? I sat there for a minute and then walked out.”
“They were all abuzz,” she said, referring to the lawyers and others in the courtroom. “I was just upset.”
In their appeal, prosecutors assert that Scalesse can be retried because her acquittal is not legal. “Under these circumstances, retrial is not barred by the principles of double jeopardy.”
Prosecutors want the not guilty finding to be vacated and the case sent back for trial.
Neither Scalesse nor her lawyer, Paul Anthony, could be reached for comment.Andrea Estes can be reached at firstname.lastname@example.org.