A Supreme Judicial Court justice dismissed the larceny conviction of a Somali immigrant Tuesday, handing Suffolk District Attorney Rachael Rollins another victory in her effort to ensure people don’t face unduly harsh consequences for committing low-level offenses.
In a five-page decision, Justice David Lowy overturned rulings by two Boston Municipal Court judges who had accused a Suffolk prosecutor and defense attorney of misconduct in their handling of the case of 28-year-old Osman Bilal, a sous chef at a North End restaurant.
“Both attorneys insist that they acted well within their legal and ethical obligations and did not deliberately mislead or intentionally withhold facts from the court,” Lowy wrote in a decision handed down hours after he held a hearing on the matter.
Lowy ordered Bilal’s 2011 larceny conviction dismissed, ruling that a nolle prosequi motion filed by Rollins’ office in the “interest of justice” was “entered validly and must be reinstated.” As a result, Bilal’s conviction will be wiped from his record, making him eligible to renew his green card.
“When an individual has worked so hard to take accountability for their actions and turned their life around, I will not sit idly by when cruel and extreme collateral consequences impede their ability to move beyond their past," Rollins said in a statement. "No one is their worst moment.”
Bilal’s lawyer, Kelly Cusack, said it had “been a long and tortured road for Mr. Bilal and there is now finality, which also includes justice.”
“When told of the decision, Mr. Bilal said he was speechless. That he had hoped this day would one day come and could not believe the day was finally here," she said in a statement.
The ruling marked the second time Rollins has successfully brought a challenge to the state’s highest court after clashes with judges over her authority to dismiss cases that she views as unjust. In September, an SJC justice ruled that a judge could not force her office to push ahead with the prosecution of a Straight Pride Parade protester.
Bilal was 19 when he pleaded guilty to stealing two necklaces from a Boston street vendor. In court filings, he said he was unaware that the misdemeanor conviction, considered a crime of “moral turpitude,” meant he faced deportation to Somalia, a country his family fled when he was only two days old.
The judge who accepted Bilal’s plea and placed him on probation for a year had rejected four motions for a new trial, which had been opposed by Rollins’ predecessor, Daniel Conley. But in November, Cusack, who was newly appointed to represent Bilal, worked with Rollins’ top aide, Suffolk Assistant District Attorney Donna Jalbert Patalano, to try again.
They appeared before Boston Municipal Court Judge Michael Coyne for an unscheduled hearing on Nov. 15 because there was “a sense of urgency," Patalano said during Tuesday’s hearing.
“We were doing this for one purpose only, because of the unjust collateral consequences of the federal immigration law,” she said.
Patalano told Lowy that she did not deceive Coyne when she requested a new trial for Bilal.
“There is no fraud, there is no misrepresentation,” Patalano said.
Coyne granted the joint motion for a new trial, and prosecutors immediately dismissed the charges, wiping the conviction from Bilal’s record. But six days later, Coyne accused the lawyers of misconduct for not telling him Bilal’s prior judge, Sally Kelly, had denied four motions for a new trial, most recently in July. She had rejected his claim that his lawyer didn’t tell him about the immigration consequences of a guilty plea and noted that under the plea deal a felony charge of witness intimidation was dropped and he was spared jail time.
Coyne vacated his order granting Bilal a new trial and reinstated his conviction.
When Coyne referred Bilal’s case back to her, Kelly promptly rejected Bilal’s latest bid for a new trial, writing that it was “rooted in deception.” She accused the lawyers of trying to circumvent her authority by presenting it to Coyne on the only day that month she wasn’t in court.
Rollins’ office filed an emergency petition with the state’s highest court, arguing that Coyne had no authority to reinstate the conviction.
On Tuesday, Patalano said Rollins had moved to dismiss Bilal’s larceny conviction under an immigration policy she adopted last year to review the convictions of people seeking relief from "the unjust and really cruel collateral consequences of federal immigration law.”
She said Bilal had rehabilitated himself and was working full time and paying taxes.
Patalano argued that lawyers weren’t required to present Bilal’s latest request for a new trial to Kelly because it was based on “completely new grounds” — that it was in the interests of justice.
Patalano said Coyne had Bilal’s complete case file and docket available to him and was told that Kelly had previously handled it, but made the decision to grant Bilal a new trial after discussing the case for only two minutes.
During a whispered conversation at sidebar, according to a transcript, Coyne initially said, “You don’t think I’m going to interfere with Judge Kelly’s cases do you?”
Patalano told him that the case was on appeal, but they hoped to resolve it quickly in the municipal court since both sides agreed that Bilal should be granted a new trial.
“They’re very busy up there,” Coyne said, quickly agreeing to the motion for a new trial.
In his ruling, Lowy said he was not ruling on whether prosecutors’ decision to jointly request a new trial “based upon immigration consequences” was appropriate. He found there was a sufficient basis for Coyne to grant a new trial in the interest of justice because he had Bilal’s case file, was aware that the case was previously before Kelly, and the new trial motion was based on “entirely separate grounds.”
Once Coyne allowed Bilal’s motion for a new trial, Rollins’ office had the prerogative to dismiss the case, he ruled. Once that order was entered, he said the judiciary did not have the authority to vacate it.
Rollins, in her statement, said the ruling “validates the right of prosecutors to ask for new trials and to file, at their discretion, a nolle prosequi which terminates any legal action in a case by withdrawing the charges.