Rollins asks high court to overrule judge on Straight Pride protester arrests

Suffolk District Attorney Rachael Rollins.Faith Ninivaggi/Pool

Escalating an unusually public legal dispute, Suffolk District Attorney Rachael Rollins filed an emergency petition with the state’s highest court Wednesday to overturn a judge’s ruling against a protester arrested at the Straight Pride Parade, saying he overstepped his bounds by refusing to allow her prosecutors to dismiss the charges.

Boston Municipal Court Judge Richard J. Sinnott “ignored the clear and unambiguous constraints placed on the judiciary by the separation of powers” in refusing to let prosecutors drop nonviolent charges against protesters who were arrested Saturday in a clash with police, Rollins wrote in a 16-page petition to the Supreme Judicial Court.

The emergency petition capped a wild day in the high-profile cases against the protesters. Earlier, Sinnott ordered a defense lawyer to be removed from his courtroom after she accused him of interfering with prosecutors’ discretion in one of the cases. After citing case law on the matter and arguing with Sinnott, Susan Church was placed in handcuffs and taken into custody.

Judge Richard Sinnott during Straight Pride Parade arraignments at Boston Municipal Court Sept. 3.Faith Ninivaggi/Pool/Pool

She appeared three hours later before Sinnott, who released her without criminal charges.

“Ms. Church was filled with passion in representing her client and kept talking over me,” Sinnott explained from the bench. “I don’t think it’s necessary for the court to take further action.”

Church, a well-known Boston immigration attorney who was representing a protester charged with disorderly conduct and resisting arrest, left the courtroom to applause from lawyers and other supporters waiting outside.

“This is highly inappropriate behavior by the judge,” Church said. “This was not legal and it should not be let to stand.”

She said she hoped her experience would not discourage other lawyers from fighting aggressively for their clients.

“[I] sat there wondering if I was going to jail that night, whether I’d be able to see my children at dinner that night, what I was going to do about my work and my clients,” Church said. “My biggest concern is that this doesn’t have a chilling effect for all the other lawyers out there who are fighting the good fight.”

Sinnott declined to comment through a Trial Court spokeswoman. Massachusetts judges are not permitted to comment on pending cases. Governor Charlie Baker nominated him to the bench in 2017, lauding his military service and 25 years of legal experience. Sinnott’s wife, Eleanor C. Sinnott, is also a Boston Municipal Court judge.

“Richard Sinnott’s diverse legal experience and his commitment to human rights laws will make him a welcome addition to the Trial Court system,” Baker said in a press release at the time.

Over two days, prosecutors asked Sinnott to dismiss charges against protesters without criminal records who were arrested on nonviolent charges. On Tuesday, Sinnott denied most of the motions to dismiss charges, but on Wednesday he agreed to drop cases against seven protesters and delay the arraignments of five more. In several dropped cases, including two involving alleged assaults on police officers, prosecutors cited a lack of probable cause in police reports.

Rollins’s petition to the SJC Wednesday was brought on behalf of one defendant who was charged with disorderly conduct and resisting arrest. She hopes to use that case to set a broader precedent for the other defendants charged with nonviolent offenses.

Supporters, including Boston police officers, had hailed Sinnott for taking a hard line against the protestors, many of whom were not from Boston, and as a counterbalance to a district attorney who has drawn controversy for refusing to prosecute a number of low-level crimes. Rollins and others said Sinnott’s actions squelched people’s right to protest.

“Not only will the Commonwealth be forced to proceed on a criminal case it deemed inappropriate for prosecution . . . but the defendant will now suffer from a criminal record created as a result of the judge’s unconstitutional decision to step out from behind the bench and step into the shoes of the prosecutor,” Rollins’s petition to the SJC stated. “The judge’s interference with the district attorney’s constitutional authority cannot stand.”

In a statement released Wednesday evening, Rollins said the judge’s actions were “unprecedented and outrageous.”

“His insistence on arraigning individuals when my office has used its discretion to decline a case is an unconstitutional abuse of his power,” she said.

The petition seeks the review of a single justice.

Sinnott’s stance against prosecutors drew a sharp rebuke from many legal specialists. Nancy Gertner, a former federal judge in Boston who now teaches at Harvard Law School, said Sinnott was making “the kinds of judgments that a prosecutor makes.”

“As a judge, I oftentimes disagreed with the cases brought in front of me,” Gertner said. But, “in a system of divided power,” prosecutors decide when to bring criminal charges, she said.

Michael Tumposky, a partner at Boston law firm Hedges & Tumposky, said the judge’s intervention was “highly problematic.”

“He’s making himself an advocate as opposed to someone who is supposed to be impartial,” Tumposky said.

In court on Wednesday, Sinnott questioned whether prosecutors had spoken with police officers, whom he described as victims in the case, drawing a quick response from Church.

“But that’s really not the issue,” Church said. “The issue is that your honor does not have the authority to prevent the district attorney’s office from entering a nolle prosequi,” the Latin term for the notice prosecutors file when they drop charges in a case. “The case law is abundantly clear.”

Church began to cite Commonwealth v. Ventry Gordon, a 1991 case in which the Supreme Judicial Court ruled that a judge cannot accept a defendant’s plea to dispose of a case over prosecutors’ objections. Sinnott interrupted her, asking what the case law says about the Victim’s Rights Law provision that victims of crimes should be kept informed as their cases progress through the court.

“That statute does not change the separation of powers in any way, shape, or form,” Church said. Church then asked whether Sinnott has spoken to District Attorney Rachael Rollins about how her prosecutors decide which cases to pursue.

“This is the only warning you’re going to get. You’re not going to talk over me. You’re not going to turn this into theater,” Sinnott replied. “Do you understand me, ma’am?”

“May I finish reading the cases?” Church asked.

“No,” Sinnott replied.

“No, I can’t read cases?” Church asked, and began reading: “The decision to nol pros a criminal case is within the discretion of the executive branch of government, free from judicial intervention,” she said, quoting Justice Ruth Abrams’s 1991 opinion.

“Last warning, ma’am,” the judge said. And when she kept talking, he turned to his court officers: “Take her into custody.”