By Beth David, Editor
The Massachusetts Supreme Judicial Court has agreed to take up the case of Michelle Carter on Direct Appellate Review (DAR), which means it will skip the state appeals court step and go straight to the SJC.
Carter filed her appeal on January 8. The SJC took up the case on March 14. The brief by Ms. Carter to the court is due on June 15, the district attorney’s brief is due on July 27, and the reply by Ms. Carter is due on August 10. So the earliest the case would be heard by the SJC is in the fall. The full court will hear the case.
In addition to defense attorneys Joseph Cataldo and Cornelius (Cory) Madera, Ms. Carter’s attorneys now include well-known retired Judge Nancy Gertner; Attorney William Walter Fick, who represented the Marathon bomber; and Daniel Marx, who is known for his work representing people wrongfully convicted;
Ms. Carter was found guilty of Involuntary Manslaughter in the suicide of Conrad Roy III, who was found in his pickup truck in the KMart parking lot on July 13, 2014. Ms. Carter had sent a series of texts encouraging Mr. Roy to kill himself and admitted to telling him to get back in the truck when he got out, saying he was scared.
In its initial filing, the defense asks for the DAR because the “appeal presents novel questions of consitutional criminal law. It will set the precedent for who may be prosecuted for encouraging suicide with words alone. In addition, the extraordinary public interest in this case, which implicates a major controversy about assisted suicide and which has garnered international attention, warrants immediate review by the Commonwealth’s highest court.”
Ms. Carter asks for appeal on six points: 1) that Judge Lawrence Moniz based his guilty verdict for wanton and reckless “failure to act,” but that the grand jury based its indictment on “wanton and reckless conduct”; 2) that because she was physically absent the illegality of her actions was vague and invites “arbitrary enforcment”; 3) that the definition of “inflict” means to hit and she was not present; 4) that the judge relied on the uncorrobated statement that she told Mr. Roy to get back in the truck; 5) that the judge failed to apply a “reasonable juvenile” standard, which means to judge her as a juvenile and not an adult; 6) and that the judge erroneously excluded expert evidence on adolescent psychology and brain development, a violation of her right to call witnesses to defend herself.
On the first point, that the judge based his guilty verdict on something Ms. Carter was not indicted for, the defense writes that “failure to act” and “conduct” are separate charges.
“Put simply, the verdict was inconsistent with the indictment and, thus, improper,” writes the defense.
The Commonwealth’s/District Attorney’s response debunks this assertion, stating that the grand jury did, indeed indict on “failure to act,” and “conduct.”
In any case, writes the district attorney’s office, Judge Monize found the burden of proof had been met for “conduct.”
He ruled, that her “failure to act, where she had a self-created duty to Mr. Roy, since she had put him into the toxic environment — constituted, each and all, wanton and reckless conduct.”
And that conduct caused his death.
On point two, the defense argues that charging someone with manslaughter who was not physically present and encouraged suicide with “words alone” is vague and invites “arbitrary enforcement,” and penalizes free speech. They write tha criminalzing reckless speech without the specific intent to threaten or harm “violates core First Amendment principles.”
The decision by the grand jury, however, “may have made sense based on the limited, one-sided record before the grand jury which cast Carter as a diabolical, coercive villain and Roy as a vulnerable, compliant victim”
The more complete picture is of “two troubled teenagers,” writes the defense.
“Carter is the first defendant to have been convicted of killing a person who took his own life, even though she neither provided that fatal means nor was present when the suicide occurred,” writes the defense, and notes that there is no precedent for the “novel concept of ‘virtual presence’” under state law.
In point three, the defense states that the definition of inflicting harm means to hit or strike.
“A ‘virtually persent’ person cannot ‘inflict’ harm with words alone by sending a text,” writes the defense, and contends that the youthful offender concept should be construed narrowly.
In point four, the defense cites case law that a court cannot convict solely on the statement of a “person suffering a mental or emotional disturbance or some other aberration,” but must corroborate the statement.
The defense is referring to Ms. Carter’s statement that she told Mr. Roy to get back in the truck, in one text that she sent more than two months after Mr. Roy’s death, according to the filing.
“Carter is precisely the sort of person whom the corrobaration rule aims to protect,” wrote the defense, citing her emotional instability.
In point five, the defense writes that it is not fair to expect a juvenile to act like a “reasonable adult.”
The judge failed to consider that she was an immature adolescent with mental health issues.
In point six, the defense contends that Ms. Carter’s right to present a defense was violated when the judge refused to allow the testimony of Dr. Frank DiCataldo, a psychologist specializing in the development of the adolescent brain.
The judge would not allow the testimony because, he said, Dr. DiCataldo had not examined Ms. Carter, and was, therefore, only speaking in generalities.
The judge “abused his discretion,” by not allowing the testimony, writes the defense, and asserts that case law does not say that the expert who is testifying must have examined the individiual on trial.
The Commonwealth responded to the other points writing that the SJC had already heard the same arguments in 2016 during the first appeal, and the court unanimously denied that appeal.
“The six issues she raises in her petition overlap substantially with those raised in her original, 2016 appeal,” said the DA.
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