A former Woburn man who protested his innocence even as a judge sentenced him to life behind bars for murdering his infant son won a key legal victory Friday that could free him from state prison where he has been incarcerated for nearly 20 years.
The Massachusetts Appeals Court ruled that Jay Procopio should not have been allowed to plead guilty to second-degree murder in Middlesex Superior Court on April 22, 1993, before now-retired Superior Court Judge Katherine Liacos Izzo.
According to the Appeals Court, Procopio repeatedly insisted that his 5-month-old son's death was an accident and, by doing so, made his guilty plea constitutionally flawed. The court overturned the guilty plea.
"In his answers to multiple questions, the defendant responded: 'I did not throw him to the floor. I swear to God,' 'I was just playing, throwing him up in the air,' 'I didn't throw him; he fell. He fell out of my hands,' '[He fell] by accident,' '[By accident] I swear to God today,' 'I didn't think that would happen like that,' '' the Appeals Court said in its unsigned ruling.
"Far from acknowledging actions that constituted murder in the second degree, the defendant's responses amounted to a claim of accident,'' the Appeals Court said. "The judge should have rejected the plea, and let the indictment stand for trial.''
Procopio's appellate attorney, Sandra Bloomenthal, said Friday that she hopes that her client, who is now in his 50s, will soon be released from state prison. According to the Department of Correction records, Procopio is currently assigned to MCI-Norfolk, a medium security prison. Blumenthal said that Procopio is mentally challenged, and she insisted he was also telling the truth in the courtroom nearly 20 years ago.
"It was a horrible accident,'' Blumenthal said. "There is no way that somebody who is protesting his innocence should have ever been forced to plead guilty to a crime he said he didn't commit. He should be out of prison, plain and simple.''
Blumenthal said Procopio has appeared before the Parole Board once since his imprisonment began and was denied parole. As a person serving a second-degree murder sentence, Procopio became eligible for parole after serving 15 years in prison.
A spokeswoman for Middlesex District Attorney Gerard T. Leone Jr. said prosecutors are studying the Appeals Court ruling and weighing their options, which could include asking for the decision to be reviewed by other judges.
According to the summary of evidence made public by prosecutors when the incident took place, Procopio was an unemployed construction worker who was caring for his daughter, who was then 18 months old, and his son, Eric, on March 19, 1992.
Procopio called his wife and told her that Eric was hurt; when his wife came home, she summoned medical help. Eric Procopio was first taken to Winchester Hospital, but was then transferred to Boston Children's Hospital, where he died one day later.
The Appeals Court said in its ruling that Middlesex prosecutors did collect enough evidence to support a second-
degree murder guilty plea, including the fact that the child suffered a fractured skull and Procopio allegedly told police he threw the child to the ground to stop the infant's crying. But the guilty plea must be overturned because Procopio's protestation of innocence meant that he did not make what judges considered to be an intelligent waiver of his right to a trial.
"The defendant's plea falls well below what is constitutionally required for a guilty plea to second-degree murder to be intelligent,'' the court wrote. "In the face of the defendant's repeated insistence that what occurred was an accident, the second basis of intelligence is not made out.''