Judge had no authority to refuse to drop charge against 'straight pride' parade observer, justice rules

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A Boston judge had no authority to deny a prosecution bid to drop a disorderly conduct charge against a police observer at a “straight pride” parade, according to a justice on the state’s top court.

Justice Frank Gaziano of the Massachusetts Supreme Judicial Court ruled Monday for Suffolk County District Attorney Rachael Rollins, who had sought dismissal in what is known as a nolle prosequi, report the Boston Herald, MassLive.com, Law360 and WBUR.

Gaziano said Boston Municipal Court Judge Richard Sinnott wrongly exercised executive power that is reserved to the state under its constitution and infringed the separation of powers. Executive power gives the state the power to determine which cases to prosecute, Gaziano said.

Sinnott had accepted nolle prosequi actions last week in 10 of 36 cases stemming from the Aug. 31 parade, but denied it in the case of Roderick “Rod” Webber, according to the Boston Herald. Webber told the ABA Journal he was recording police actions during the parade and was targeted by police after he calmly asked whether there was a dispersal order. His record will be expunged as a result of Gaziano’s decision.

Sinnott also refused prosecutors’ attempt to dismiss charges in 12 other cases through actions other than a nolle prosequi, according to the Boston Herald. Previous coverage said prosecutors had been seeking to dismiss charges against several protesters in exchange for community service.

In one case, Sinnott held the defense lawyer in contempt after she read aloud case law about prosecutors’ powers to decline prosecution. Sinnott had complained the lawyer, Susan Church, was talking over him. Church was led away in handcuffs. She was released hours later.

Sinnott had contended that prosecutors could not enter a nolle prosequi without notifying parade organizers because they could be considered victims under the state statute protecting victims’ rights.

But Gaziano said disorderly conduct is an offense against the public rather than a specific victim, so there was no victim to notify. Even if there were victims to be notified, the state law requiring notice does not trump the state’s constitutional right to decide when to enter a nolle prosequi, Gaziano said.

State case law establishes that, prior to trial, prosecutors have the absolute right to enter a nolle prosequi “except possibly in instances of scandalous abuse of authority,” Gaziano said, quoting from a 1923 case.

“The entry of a nolle prosequi in this case hardly qualifies as a ‘scandalous abuse of authority’ warranting judicial intervention,” Gaziano wrote.

Rollins said at a press conference held after Gaziano’s ruling that four police officers were injured during the parade, and she did not drop charges in those cases, according to the Boston Herald account.

“The crimes where there were in fact victims, where officers were injured, we held those individuals accountable,” Rollins said. “Any indication that this administration does not take seriously violence against law enforcement or the community is false.”

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