Attorney General Neronha issues statement following hearing in Superior Court
Published on Friday, December 08, 2023
Attorney General Peter F. Neronha issued the following statement at the conclusion of a hearing in Superior Court before Judge Daniel A. Procaccini:
“I am grateful that the Court, it seems, has now acknowledged that it had no authority to summons an Attorney General, a constitutional officer elected by the people of Rhode Island to advocate on their behalf, for the purpose of accusing him or her of conduct that offends the Court. The failure by the Court to identify any such authority in any of its oral and written orders for me to appear, and again today, comes as no surprise, as the Court has no such authority. This was a principle that I was prepared to take to the Supreme Court, if necessary. As the duly-elected Attorney General, my responsibility is to the people of Rhode Island, to fight for and advocate for them.
“This statement should not be taken as a sign of disrespect for the Superior Court or any other court, state or federal. I have practiced law, state and federal, in Massachusetts and Rhode Island for nearly 35 years, and have never had a dispute with a member of the bench like the one manifested in recent weeks.
“This dispute could easily have been resolved informally. Indeed, I tried many times to resolve it, both in writing and by calling the Court directly. I offered to issue a clarifying statement if the Court believed it was necessary. All to no avail. So here we are.
“The Court today has accused me of conduct in violation of the professional rules of responsibility and more. I categorically reject those accusations and have absolutely no doubt that any forum that may ultimately hear these accusations will reject them as well. I have not violated any rules of professional responsibility, nor have I violated any other rules.
“So, what have I done? I have spoken out about a Rhode Island legal practice in Superior Court criminal trials that is unbalanced and prejudices the public’s interest in achieving justice for victims of crime. In speaking out against this practice, I have plainly offended Judge Procaccini, who evidently misinterpreted my public statements as personal criticism directed at him. He is wrong on that score, but even if he were right, are judges beyond criticism in our democracy? I think not.
“Neither does the Supreme Court. As Justice Black famously wrote over 80 years ago, “the assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion.” Bridges v. California, 314 U.S. 252, 270 (1941). In his dissenting opinion in the same case, Justice Frankfurter agreed that speech cannot be censured when the purpose is “to protect the court as a mystical entity or the judges as individuals or as anointed priests set apart from the community and spared the criticism to which in a democracy other public servants are exposed.” Id. at 292.
“As a constitutional officer, I have the right and duty to inform the people of Rhode Island of my view on matters that I believe are of public concern. That was the purpose of my social media posts: to alert the people of Rhode Island to what I believe is a real weakness in Rhode Island’s system of justice. And to rally support for change, change that is very much needed.
“Here’s the problem: under Rhode Island law, in contrast to the procedure in federal court and in 31 other states, the prosecution’s agreement is not required before the court can conduct a non-jury trial in criminal cases.
“This is not a minor matter of little interest to the people of this state. It is an important matter of constitutional procedure.
“The United States Supreme Court has made it very clear that there is a constitutional preference for trial by jury – not by a judge – in criminal cases, and it has articulated two important principles on this issue. First, that “[t]rial by jury is the normal and, with occasional exceptions, the preferable mode of disposing of issues of fact in criminal cases above the grade of petty offenses.” Patton v. United States, 281 U.S. 276, 312 (1930). And second, that the “Constitution recognizes an adversary system as the proper method of determining guilt, and the Government, as a litigant, has a legitimate interest in seeing that cases in which it believes a conviction is warranted are tried before the tribunal which the Constitution regards as most likely to produce a fair result.” Singer v. United States, 380 U.S. 24, 36 (1965).
“Rhode Island, however, allows for a jury-waived trial whenever a defendant in a criminal case wants one. The constitutionally preferred method of determining issues of fact, a jury of 12 peers, is replaced by a judge. In these situations, the state’s view doesn’t matter. If the state wants a jury trial, too bad. Our “legitimate interest,” as the Supreme Court called it, is ignored. And through the prosecution, the victim’s views and the broader public’s views, don’t matter.
“This is wrong. It should be changed. And I am determined to fight to change it at the General Assembly on behalf of victims and the public.
“This inability of the state via the prosecution to successfully object to a jury waived trial creates an uneven playing field that can create the appearance of unserved justice. This appearance of unserved justice is significantly enhanced by the fact that a very small number of judges oversee the substantial majority of jury waived trials in Rhode Island. My Office’s records show that two of the 24 Superior Court judges who presided over these cases were responsible for conducting 56% of all jury-waived criminal trials over the past 10 years. At a minimum, this demonstrates an imbalance in Rhode Island’s justice system. And I believe it is fair for me to point out this imbalance and question its implications for the criminal justice system.
“I believe that everyone would agree that regardless of outcome, victims of crime ought to walk away from a trial believing that justice was served; that the process and procedures of the court were fair.
“Let’s take this case as an example. This is what the Pahlavi family experienced in this case. There was a non-jury trial before a judge of the District Court, Judge Isherwood, on these alleged facts. Judge Isherwood found the defendant guilty. Over a year later, in the Superior Court, the defendant waived a jury, and Judge Procaccini, on the same set of alleged facts, found the defendant not guilty.
“As a prosecutor, how do we explain that to this family? Or to the broader public?
“For certain, Rhode Island law provides the option for a non-jury trial for a misdemeanor before a District Court judge. The law also provides that, upon conviction in District Court, a defendant may appeal to the Superior Court, where the defendant is entitled to a new trial – another bite of the apple.
“This opportunity for appeal makes sense if the Superior Court trial is before a jury of the defendant’s peers; a trial that the defendant is not entitled to in District Court. But if the trial in the Superior Court is before a judge only, it leads to the very situation we have here. Two different judges as fact-finders. Two different outcomes. That shakes faith in our criminal justice system.
“And it needs to change.”
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