# Commonwealth v. Lewin > Massachusetts Supreme Judicial Court · August 14, 1989 · 405 Mass. 566 URL: https://www.frixlaw.com/law-library/cases/9535542 ## Case - **Full name:** Commonwealth vs. Albert Lewin - **Court:** Massachusetts Supreme Judicial Court - **Decided:** August 14, 1989 - **Citations:** 405 Mass. 566; 542 N.E.2d 275; 1989 Mass. LEXIS 238 - **Precedential status:** Published - **Opinion:** Dissent by Abrams - **Judges:** Liacos, Wilkins, Abrams, Nolan, Lynch, O'Connor - **Cited by:** 38 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9535542 ## How later opinions describe it (automated extraction) - holding that a finding that a CI existed was “clearly erroneous” based on the sworn repudiation of the CI’s existence by three officers and an investigation that revealed thirty-one applications for search warrants by the same officer within a ten-month period relying on the s… ## Opinion text Abrams, J. (dissenting, with whom Liacos, C.J., joins). The court today substitutes rhetoric for precedent in order to reinstate the indictments against Lewin. We have said that, “[a] trial judge . . . must rest a dismissal of criminal charges for failure of the prosecution to comply with discovery orders in a timely manner on findings that the delayed disclosure was due to deliberate and egregious action by the prosecutor or unintentional conduct resulting in irremediable harm to the defendant” (emphasis added). Commonwealth v. Cronk, 396 *593 Mass. 194, 199 (1985). The court now alters this standard by requiring not only deliberate and egregious conduct to justify dismissal of criminal indictments but also irremediable harm to the defendant. Adherence to the principles of stare decisis provides certainty in the law. The only thing now certain is that no matter how egregious the government conduct, courts of the Commonwealth will do no more than give lip service to protect citizens from unlawful, illegal, and intentional prosecutorial misconduct. To reach its result, the court finds facts, not the usual function of an appellate court. On remand, the judge found that “John exists and has deliberately been withheld.” It is a “well-established principle of appellate review that subsidiary findings of fact by the judge below will be accepted absent clear error.” Commonwealth v. Hine, 393 Mass. 564, 568 (1984). The court purports to discover clear error in the judge’s finding that John exists. 1 The court is wrong: there is ample evidence to warrant a determination that John exists. The police officers all testified (before their attempted recantation) that John exists. As long as the judge found the initial testimony more credible than the attempted recantation, he is warranted in concluding that John exists. The judge saw the witnesses testify, and the members of this court did not. The judge found that the officers’ initial testimony was more credible than their abandonment of the testimony, and that John exists. Until today, we always have “accept[ed] the judge’s resolution of conflicting testimony.” Commonwealth v. Sanchez, 403 Mass. 640 , 644 n.3 (1988). “We have often stated that [t]he determination of the weight *594 and credibility of the testimony is the function and responsibility of the judge who saw and heard the witnesses, and not of this court. ’ ” Commonwealth v. Hine, supra, quoting Commonwealth v. Moon, 380 Mass. 751, 756 (1980). See Commonwealth v. Cronk, supra at 199 . Although this is an elementary principle of judicial review, the court fails to follow it. The court reverses the judge’s credibility determinations by making its own determination of credibility. To bolster its conclusion, the court states that the officers have no incentive to continue to lie. This is not established. Nothing in the court’s opinion suggests that the Commonwealth must prosecute the “perjurious” officers. Nothing in the court’s opinion suggests that the defendant’s conviction might be contingent on prosecution of the officers and that failure to prosecute the officers may constitute presumptive prejudice to the defendant. At present, therefore, the police officers have every incentive to continue to lie. They may hope not to be prosecuted or to be treated more leniently if they provide evidence at trial which aids the Commonwealth. The court is naive to assume otherwise. Assuming for the moment that the court is warranted in finding that the judge’s conclusion that John exists is clearly erroneous, the court still exceeds the scope of proper appellate review. 2 Even assuming that there is no evidence to warrant a finding that John exists, that does not provide the court with any proof that John does not exist. Commonwealth v. Michaud, 389 Mass. 491, 498 (1983). Commonwealth v. Eramo, 377 Mass. 912 , 913 n.l (1979). Commonwealth v. Marino, 343 Mass. 725, 728 (1962) (disbelief of evidence is not sufficient *595 to establish opposite conclusion). Thus, the court’s conclusion that John does not exist is flawed. Further, the officers have not been ordered to come forward with the witnesses who provided the detailed composite of Stevie. The failure to establish how the description was obtained raises serious doubt about whether the Commonwealth has turned over to the defendant all its exculpatory evidence. The police misconduct therefore has clouded this case so thoroughly “as to preclude any confident assumption that proceedings at a . . . trial would be free of the taint.” Commonwealth v. Lam Hue To, 391 Mass. 301, 313 (1984), quoting Commonwealth v. Manning, 373 Mass. 438, 444 (1977). 3 The behavior of the police officers was intolerably exploitive of Lewin, who, being held in jail in lieu of bail, attempted to prepare for his impending trial. 4 The officers lied about John in connection with the drug charges, and continued to lie about him as John became a focal point in the murder case. Because of the officers’ lies, the defendant languished in jail while court proceedings continued with what the court has characterized as “perfidious” police conduct. The defendant’s attorney has had continuously to revise his trial strategy in the face of new revelations from the police. The Commonwealth claimed that there was an informant it called John, and the defendant was expected to try his case in response to this theory. Now the court rules that the Commonwealth need not adhere to its initial claim but may try its case under another, different strategy. The defendant is left with a Hobson’s choice — go to trial without adequate preparation or remain in jail preparing *596 his defense. Surely this alone may constitute “irremediable harm to the defendant’s opportunity to obtain a fair trial,” Commonwealth v. Cronk, supra at 198 . The officers admitted their lies and their perjury only when the judge dismissed the indictments. At that point, police came forward with Y and Z, whom the judge found incredible and whom the court seems to agree were incredible. Under today’s decision, members of the police force may continue lying until indictments are dismissed, and then be entitled to reinstatement as soon as they come forward with any type of explanation. Essentially, the court has placed the police in the enviable situation of “heads I win, tails you lose.” The court’s holding certainly provides no disincentive (other than the usual fears of the penalties of perjury, which apparently meant little in this case at least) for the police officers to lie to bolster their position regarding the indictments. 5 Finally, assuming for the sake of argument, that the court is justified in its new found power to find facts, and we may be confident that John does not exist, in my view, the judge acted correctly in dismissing the indictments as a prophylactic measure to deter serious police misconduct. In this case, “[w]e are confronted . . . not with the proverbial constable’s blunder or even the good faith overzealousness in the pursuit of legitimate law enforcement aims.” Commonwealth v. Manning, supra at 443 . Rather, this is a case of “egregious, deliberate, *597 and intentional” police misconduct. Commonwealth v. Cronk, supra at 198 . The court’s tepid response leaves me with great doubt “that such conduct will not be tolerated in our criminal justice system.” Commonwealth v. Manning, supra, at 445 . The court’s decision not only tolerates but encourages illegality on the part of the police and discourages judges in the pursuit of truth and justice. I continue to adhere to my view that, in circumstances in which the misconduct is so “outrageous, egregious, and calculated. ... I would dismiss the indictments against the defendant without a showing of prejudice.” Commonwealth v. King, 400 Mass. 283, 294-295 (1987) (Abrams, J., dissenting). See Commonwealth v. Light, 394 Mass. 112, 115 (1985) (Liacos, J., dissenting). The police officers have done their very best to hide the truth from the defendant and the courts. The court today has done nothing to aid the discovery of the truth. “[W]hen the truth is buried underground, it grows, it chokes, it gathers such an explosive force that on the day when it bursts out, it blows everything up with it. We shall soon see whether we have not laid the mines for a most far-reaching disaster of the near future.” Zola, J’Accuse! (1898), reprinted in The Law as Literature (London ed. 1960). I dissent. The court also claims that the judge in his findings of fact before remand clearly concluded that John does not exist. The court’s implication is that the judge was wrong when he told this court that he finds that John exists. The court’s disingenuous characterization of the judge’s words “the nonexistent John” in his initial findings as a “determination” does not bear close scrutiny. In that portion of the opinion, the judge was sarcastically describing the amount of money spent on a bogus search for a man named John the Commonwealth now claims does not exist. If it is so clear from the judge’s first findings and from the other evidence that John does not exist, why did the court find it necessary to remand to the motion judge? The court does not explicitly announce a rule for determining whether a defendant has proved prejudice. Nevertheless, the court seems to set an extremely high standard of proof, and requires a defendant to prove prejudice with certainty, not only to the motion judge but to the appellate court. It is difficult for a defendant definitively to prove that exculpatory evidence exists somewhere in the world if this evidence is not in his possession. Further, even if he proves this to the satisfaction of the motion judge, under the court’s analysis, the police can merely present a plausible alternate explanation and thereby avoid the dictates of Commonwealth v. Cronk, supra. At most, under the court’s analysis there is no evidence one way or the other whether John exists. Nevertheless, the court is willing to mislead the jury (whose role it is to determine the truth) by allowing the defendant to present unrebutted testimony that John (whom the court concludes does not exist) exists. Thus, according to the court, the jury’s verdict will not “speak the truth,” as the word “verdict” means. As the fruitless search for the “non-existent” John wasted the assets of the Commonwealth, the police misconduct also has wasted the assets of the defendant by forcing him to undergo prolonged court proceedings and to investigate a case which is different from the Commonwealth’s original case. Although implying that the trial judge may take certain measures protective of the defendant, the court provides little in the way of guidance as to how to protect the defendant from an unfair trial. May the judge preclude the police officers from testifying? May he preclude Y and Z from testifying? May the trial judge disqualify this particular prosecutor? May he preclude arguments from the Commonwealth on the credibility of its witnesses? May he limit the number of peremptory challenges available to the Commonwealth? May he require the Commonwealth to provide a written copy of its final arguments in advance? May he eliminate the Commonwealth’s final argument? May the judge permit the defendant to argue last? May the judge instruct the jury to scrutinize the Commonwealth’s witnesses’ testimony with great care? The court’s brief discussion of not allowing the Commonwealth to rebut evidence of the existence of John is inadequate guidance. If the judge takes these actions, may the Commonwealth complain to the full court each time he rules adversely to the Commonwealth? --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9535542. Public record. Not legal advice.