Unless the Federal Courts shake some sense into the SJC, it will be made a matter of record before courts around the world, that the Massachusetts judicial system still hands out crushing sentences for witchcraft, is too arrogant to correct its mistakes ("finality"), and in general does not meet civilized standards. Some of the taint may wash off onto other US State judicial systems.

Life could become interesting for US magistrates trying to extradite suspects from overseas. On the other hand, no foreign country in its right mind would want to become a magnet for real US criminals. Perhaps a compromise would be that a foreign suspect can be extradited for trial in Massachusetts, but only on condition that Federal courts assume direct appellate authority, bypassing the SJC.

The MA Supreme Judicial Court (SJC) wrote:
[Text from the SJC is italicized and indented]

[...]

The Second Motion for a New Trial [based on "ineffective counsel" who failed to raise a timely Constitutional objection over the 6th Amendment right to confront one's accuser]

[is denied.]

[...]

The results of the court's recent efforts to define a substantial risk of a miscarriage of justice do not alter the conclusion expressed in Commonwealth v. Amirault, supra at 645-651, that the defendant did not meet her burden of showing that there was a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, ante 8, 13 (1999). This court's traditional treatment of the substantial risk issue calls for us to decide if we have a serious doubt whether the result of the trial might have been different had the error not been made.

It would take the later work of researchers like Maggie Bruck and Stephen Ceci to show, in terms *jurors* would understand, *why* such utterly convinced, terrified, helpless, and appealing child witnesses might in fact be *completely* mistaken. Back in 1987, however, jurors would figure "Where there's smoke, there must be fire."

[...]
The Third Motion for a New Trial
The defendant's third motion for a new trial is based on a claim of newly discovered evidence.[7] A defendant seeking a new trial on that ground must establish both that the evidence is newly discovered and that it casts real doubt on the justice of the conviction. Commonwealth v. Grace, 397 Mass. 303, 305 (1986). Newly discovered evidence is evidence that was unavailable at the time of trial and could not have been discovered with reasonable diligence. Commonwealth v. Moore, 408 Mass. 117, 126 (1990). DeLuca v. Boston Elev. Ry., 312 Mass. 495, 497 (1942).

In reviewing an order granting or denying a motion for a new trial, we accord deference to the views of a motion judge who was also the trial judge. Commonwealth v. Grace, supra at 307. If, however, as here, "the motion judge did not preside at trial, we defer to that judge's assessment of the credibility of witnesses at the hearing on the new trial motion, but we regard ourselves in as good a position as the motion judge to assess the trial record." Id.

[...]

The motion judge made a significant error in concluding that Dr. Daniel Schuman was not permitted to testify at the defendant's trial regarding the unreliability of testimony based on improper interviewing practices.

[...]

Moreover, the judge inexplicably does not mention or appear to consider the expert testimony of Dr. Sherry L. Skidmore and Dr. William D. Erickson which the defendant presented at trial.

[...]

At the defendant's trial, two experts, Dr. Skidmore and Dr. Erickson, testified on her behalf.

[...]

It would take the dramatic research of Dr. Maggie Bruck, not available in 1987, to show jurors in terms understandable and convincing to *jurors*, how the prosecution's investigation was guaranteed to brainwash young children. Such research made all the difference to Judge John Paul Sullivan, convinced in 1987, like his jury, that Cheryl must be guilty.

In sum, the answer provided by Dr. Bruck to the so-called unanswerable question is not remarkably different from that presented by or available to the defendant at trial.

We are faced, however, with the conflict between the constantly evolving nature of science and the doctrine of finality.

[...]

[spliced in from an earlier part of the opinion]
The forceful, one might say enthusiastic, indorsement of an interest in finality and the application of waiver in Commonwealth v. Amirault, supra at 639-644, apparently struck some as a radical and unwelcome departure from precedent.

In fact, the Amirault opinion made no significant change in our treatment of postappeal motions for a new trial. It articulated society's justified interest in finality that has long been implicit, and sometimes explicit, in our announcements that any late-arriving issue will prevail only if the issue presents a substantial risk of a miscarriage of justice.

[...]

Editor's note

Why the title "2 vacant seats" when only 1 name was missing from the opinion?
Apart from Charles Fried, another justice (I forget which one; it may have been CJ Herbert P. Wilkins) had announced his impending retirement as well.

Notes

1. Charles Fried--
Although he had retired just before 18 Aug 1999, so that his name does not appear on the opinion, he nevertheless must be held responsible (1) for his aggressive support of the prosecution at the 6 May 1999 hearing, and (2) for his authorship of the first "finality" decision of 24 March 1997.
Since leaving the SJC, he has resumed his post as the Harvard Law School's Andrei Vyshinsky Professor of Finality.

2. John M. Greaney, Margaret H. Marshall--
were disappointments in this ruling. Some of their questions at the 6 May 99 hearing had sounded perceptive.

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