Councilors grill high court nominee for a third day

FILE - In this Dec. 1, 2008 file photo, Massachusetts Gov. Deval Patrick, left, looks on as Justice Ralph Gants speaks at the Statehouse in Boston after Patrick announced Gants would replace retiring state Supreme Judicial Court Justice John Greaney. On Thursday, April 17, 2014, Patrick nominated Gants to serve as chief justice of the state's highest court. If approved, he would succeed Chief Justice Roderick Ireland, who announced in March that he would be retiring in July. (AP Photo/Lisa Poole, File)

STATE HOUSE, BOSTON, JUNE 4, 2014…..Justice Ralph Gants spent hours Wednesday defending recent Supreme Judicial Court decisions, and stood up for Trial Court Administrator Harry Spence, during his confirmation hearing to lead the state’s highest court.

Gants, Gov. Deval Patrick’s pick to become chief justice of the state’s highest court, underwent a third full day of questioning from the Governor’s Council – the eight-member panel that vets judicial candidates.

He discussed the court’s ruling on the unconstitutionality of juvenile murderers serving life sentences without the possibility of parole, privacy right expectations for smart phones, a 2009 sex offender case, and gun owners’ rights. Two councilors criticized Spence, and asked Gants his thoughts on the administrator’s performance. The trial court administrator position was created as part of a 2011 law intended to install a professional manager atop the trial court after a probation department hiring scandal.

Councilors also brought up the 1980s investigation of 75 State Street, which involved former Senate President William Bulger. Gants worked in the U.S. Attorney’s office and was part of the investigation.

Gants has served on the SJC since 2009 after he was elevated from the state Superior Court. Former Gov. William Weld appointed Gants to the Superior Court bench in 1997. Patrick nominated him for the top slot after Chief Justice Roderick Ireland announced he will retire this July as he nears the mandatory retirement age of 70.

Councilors Jennie Caissie and Terrence Kennedy debated Gants on the SJC decision that found juvenile murderers cannot serve life sentences without the possibility of parole because it constitutes cruel and unusual punishment. In the case, Gregory Diatchenko v. District Attorney for the Suffolk District & Others, the SJC struck down a judge’s power to choose to give a life sentence without parole to juveniles, noting scientific evidence on a minor’s brain development. The unanimous state court ruling came in December 2013 after the U.S. Supreme Court struck down mandatory life sentences for minors.

“The question is whether or not you can give up on any possibility of rehabilitation. The court said you can’t make that decision when the kid is that young,” Gants said.

Gants said juveniles have to have the possibility of parole, but that doesn’t necessarily mean they will get it. That is decision for the parole board to make, he said.

Caissie argued that teenagers convicted of firearms violations as juveniles were also being denied their rights if they were prevented for the rest of their life from owning a gun. Doesn’t that juvenile have the same reduced capacity and ability to rehabilitate themselves, Caissie asked.

“How can there be an inconsistent outcome when you are dealing with the reduced capacity of juveniles? Shouldn’t it be consistent?” Caissie said.

Gants said the court’s direction is steered by the U.S. Supreme Court, which has decided there is nothing in the Second Amendment that prohibits state legislatures from passing laws that prohibit firearms possession by felons.

Kennedy wanted to know why the juveniles’ decision did not apply retroactively. Kennedy said he thought that was inconsistent to other court rulings. Gants said there was a great deal of discussion about that, and ultimately they had to ascertain legislative intent.

Councilor Eileen Duff told Gants she recently had a conversation with Trial Court Administrator Spence, who she said likened prisons to “boarding schools.”

“I found it offensive, and I found it unacceptable,” Duff said, adding that she questioned his suitability for the role after he expressed that view.

Gants said he suspects that Spence meant something different. “I will alert him that his words were heard different than something he meant,” he said.

Councilor Kennedy said since Spence took over administration of the courts there is too much emphasis on the speed at which cases are handled, at the expense of justice.

Gants pointed out that one of the elements of justice is the right to a speedy trial. “I do think there is a virtue for all concerned to have matters handled as promptly as they can,” he said.

Because of time constraints, Kennedy said cases are dismissed that “frankly shouldn’t be dismissed” and prosecutors are being forced to trial and losing cases “they probably shouldn’t lose.” Kennedy asked what Gants would do to change that environment as chief justice.

“The first thing I will do is raise this to the other chief justices,” Gants said, adding that time guidelines are not meant to be a vise.

Gants was also asked about a recent SJC decision related to privacy right expectations for smart phones and whether police need a warrant to look at a phone’s history. In Commonwealth v. Shabazz Augustine, the SJC ruled there was an expectation of privacy.

Gants dissented from the majority of the court, arguing that because telephone record information goes through a third party, such as Verizon, or AT&T, there could be no expectation of privacy, and was akin to telephone toll records. But police seeking GPS information would need probable cause, Gants said.

Gants also was asked about his time working in the U.S. Attorney’s office, and his involvement in the 75 State Street investigation. During his 33-year legal career, he worked in the U.S. Attorney’s office; and previously as an assistant to the director of the FBI.

In the mid-1980s, Senate President William Bulger’s law partner at the time, Thomas Finnerty, was involved in a real estate deal with developer Harold Brown. Brown was constructing 75 State Street, an office building in Boston that needed numerous approvals. Finnerty was reportedly paid for his assistance to move the project forward, but later brought a lawsuit in Suffolk Superior Court, claiming that Brown reneged on a legal agreement when he did not pay him the agreed upon amount, according to reports published in the Boston Phoenix.

Brown responded with complaints that Finnerty and Bulger were trying to extort him. The feds investigated.

Bulger’s role in the business arrangement became news when the Boston Globe reported in 1988 that he received roughly half of the money paid to Finnerty by Brown, roughly $240,000. Bulger wrote in his memoir the money was a loan from Finnerty that was not related to Brown, according to the Boston Phoenix.

Councilor Michael Albano asked Gants if he knew Whitey Bulger was an informant for the FBI at the time, and whether that impeded the 75 State Street investigation.

“The answer is no,” Gants said. “I don’t recall anybody speculating to me the reason those investigations got blown is because he was an informant.”

He said he did not believe Whitey Bulger’s involvement with the FBI hindered the 75 State Street investigation, but there was an incident where Senate President Bulger was interviewed and there was a “leak.” Gants recalled having to write a detailed letter to his superiors saying he was not the source of the leak.

“That was a very tough case to prove. We ultimately could not prove it. We ultimately declined prosecution,” Gants said.

Gants said investigators and prosecutors did not think they could win the case because the evidence was not strong enough.

Shortly before 6 p.m. Wednesday, the hearing appeared to be almost finished. Gants’ nomination could come up for a vote on June 11, the next scheduled formal assembly meeting where Patrick presides. A few councilors said they planned to vote in his favor.

Copyright 2014 State House News Service

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