Petition for Writ of Certiorari — Pedro Vasquez, Petitioner v. Massachusetts

No. 21IN THE

Supreme Court of the United States

___________

PEDRO VASQUEZ,

Petitioner,

v.

MASSACHUSETTS,

Respondent.

___________

On Petition for Writ of Certiorari

to the Massachusetts Supreme Judicial Court

___________

PETITION FOR A WRIT OF CERTIORARI

___________

JUAN M. RIVERA*

JUAN M. RIVERA, ESQ.

1380 Main Street, Suite 420

Springfield, MA 01103

(413) 827-9600

donclave@gmail.com

Counsel for Petitioner

March 1, 2021

*Counsel of Record

QUESTIONS PRESENTED

1. Whether the Massachusetts Supreme Judicial

Court impaired the obligation of a contract in

contravention of Article I, sec. 10, cl. 1 of the U.S.

Constitution and the Fourteenth Amendment, to pay

attorney's fees for an indigent defendant who, while

having court-appointed trial counsel, retained private

appellate counsel to defend him against an

interlocutory appeal brought by the prosecutor, where

the state rule of criminal procedure provides payment

of attorney’s fees for the defendant's choice of counsel

and the funds for the interlocutory defense are

provided for and appropriated by state statute?

2. Whether the Massachusetts Supreme Judicial

Court’s new requirement that attorney’s fees be

advanced to secure a defendant’s right to be

reimbursed for exercising their right to choose counsel

a violation of the Sixth Amendment?

3. Whether the Massachusetts Supreme Judicial

Court’ s new requirement of fee advancements

prospectively denies Equal Protection of the Law to the

choice of counsel, provided by the Sixth and Fourteenth

Amendments, by placing on indigent defendants an

undue monetary burden to secure the right to their

choice of counsel, where the legislative intent governing

payment of fees is contained within the state statute

appropriating the payment of legal fees and costs for

attorneys defending against interlocutory review

brought pursuant to Mass. R. Crim. P. 15 by the

prosecutor?

(i)

PARTIES TO THE PROCEEDING AND RULE 29.6

STATEMENT

The petitioner herein is Pedro Vasquez, a natural

person who was the defendant-appellee below. The

respondent herein, which was the appellant below, is

the Commonwealth of Massachusetts.

(ii)

RULE 14.1(b)(iii) STATEMENT

This case arises from the following proceedings in the

Supreme Judicial Court of Massachusetts and the

Single Justice for Suffolk County:

Commonwealth v. Pedro Vasquez, No. 12562

(Mass. Aug. 13, 2020), reconsideration denied Oct. 2,

2020.

Commonwealth v. Pedro Vasquez, No. 12562, SJ-2020M024 (Supreme Judicial Court for Suffolk County. Aug.

14, 2020).

There are no other proceedings pending before this

Court nor any state appellate court directly related to

this matter.

(iii)

TABLE OF CONTENTS

QUESTION PRESENTED…………………………

i

PARTIES TO THE PROCEEDING & RULE 29.6

STATEMENT………………………………………...

ii

RULE 14.1(b)(iii) STATEMENT…………………..

iii

TABLE OF CONTENTS……………………………

iv

TABLE OF AUTHORITIES………………………..

vii

PETITION FOR A WRIT OF CERTIORARI…….

1

OPINIONS BELOW…………………………………

1

JURISDICTION……………………………………...

1

CONSTITUTIONAL PROVISION INVOLVED…

1

INTRODUCTION…………………………………….

2

STATEMENT OF THE CASE……………………...

8

A. Mr. Vasquez, charged with murder, prevailed on

a motion to suppress with CPCS appointed counsel,

Atty. Carr, and Massachusetts appealed……... 8

B. Mr. Vasquez and Atty. Rivera entered into a

private payment agreement for attorney’s fees and

costs for Atty. Rivera’s services to defend Mr.

Vasquez against Massachusetts’ interlocutory

appeal………………………………………………. 9

C. Mr. Vasquez did not advance fees to Atty. Rivera

because payment of his fees and costs were going to

be sought at the conclusion of the appeal, pursuant

to state statute and state court rules of criminal

(iv)

TABLE OF CONTENTS—continued

Page

procedure providing for payment of attorney’s fees

in such instances………………………………

11

D. The Massachusetts Supreme Judicial Court

referred the matter to the Single Justice, who

held a telephonic hearing on June 29, 2020, and

who later authored the opinion adopted

unanimously by the Court……………………

11

E. The Court created a novel requirement that

clients must advance attorney’s fees to be

reimbursed for those fees……………………….

13

F. The Court denied hearing Mr. Vasquez’s federal

claims regarding the violation of the Contracts

Clause of Art. I, Sec. 10, the Equal Protection

Clause, and Mr. Vasquez’s Sixth Amendment claims

regarding his right to his choice of counsel granted

to him by Rule 15(d)………………….................. 13

REASONS FOR GRANTING THE PETITION…..

15

I. THE DECISION BELOW IS A DANGEROUS

PRECEDENT DENYING THE FUNDAMENTAL

RIGHT TO CONTRACT BETWEEN PRIVATE

PARTIES, AND WHICH DOES NOT PROVIDE

EQUAL PROTECTION TO THE FREE EXERCISE

OF THEIR CHOICE OF PRIVATELY

COMPENSATED COUNSEL…………………….. 15

II. THIS CASE IS AN IDEAL VEHICLE FROM

ALLOWING THE STATE COURT TO ILLEGALLY

(v)

TABLE OF CONTENTS—continued

Page

IMPAIR THE OBLIGATIONS OF A LAWFUL

CONTRACT THROUGH THE STATE COURT’S

NOVEL REQUIREMENT OF THE ADVANCEMENT

OF FEES, THEREBY PREVENTING A CRIMINAL

JUSTICE CASTE SYSTEM FROM TAKING ROOT

WITHIN THE SIXTH AMENDMENT RIGHT TO THE

CHOICE OF COUNSEL, AND THE EQUAL

PROTECTION OF THE LAWS GUARANTEED IN

THE FOURTEENTH AMENDMENT.…............... 24

A. The decision below has grave implications for

indigent criminal defendants…………………... 24

B. This is the right vehicle for the Court to

consider……………………………………………..

25

C. GVR is appropriate where the underlying

decision is, as here, erroneous…………………..

26

CONCLUSION………………………………………..

27

APPENDICES

APPENDIX A: Opinion, Commonwealth v. Vasquez,

486 Mass. 405, 150 N.E.3d. 723 (2020)………A 1—A 9

APPENDIX B: Dockets, Commonwealth v. Vasquez, SJ2018-0070, SJ-2017-0417, and SJ-2017-0412…B 1—B 5

APPENDIX C: Docket, Commonwealth v. Vasquez,

SJC-12562, and SJ-2020-M024………………….C 1—C 3

APPENDIX D: Motion for Reconsideration,

Commonwealth v. Vasquez……………………..D 1—D 20

(vi)

TABLE OF CONTENTS—continued

Page

APPENDIX E: Indictment, Commonwealth v.

Vasquez……………………………………………...E 1—E 3

APPENDIX F: Application for Attorney’s fees and

Costs, Commonwealth v. Vasquez……...........F 1—F 444

APPENDIX G: Docket, Commonwealth v. Alvarez, SJ2017-0156…………………………………………..G 1—G 2

APPENDIX H: Dockets of Rule 15(d) cases pending

after Vasquez………………………………………H 1—H 9

APPENDIX I “EYE”: Emails sent to Justice Lenk by

Atty. Rivera……………..……..I (“EYE”) 1—I (“EYE”) 23

APPENDIX J: Email to CPCS from Atty. Rivera

regarding a position on Commonwealth v. Vasquez

payment matter…………………………………….J 1—J 4

TABLE OF AUTHORITIES

CASES

Blankenship v. Johnson, 118 F3d 312 (5th Cir.

1997)………………………………………………………....20

Caplin & Drysdale, Chartered v. United States,

491 U.S. 617 (1989)…………………………………....21-22

Coleman v. Alabama, 399 U.S. 1 (1970)……………19-20

Commonwealth v. Augustine, 470 Mass. 837, 26

N.E.3d. 709 (2015)………………………………...6-7, 9, 23

Commonwealth v. Ennis, 441 Mass. 718, 808 N.E.2d.

783 (2004)………………………………………………..3, 11

(vii)

TABLE OF AUTHORITIES—continued

Page

Commonwealth v. Francis, 485 Mass 86, 147 N.E.3d.

491 (2020)…………………………………………………...20

Commonwealth v. Gonsalves, 432 Mass 613, 739

N.E.2d. 1100 (2000)……………………….3, 4, 6, 9, 14, 21

Commonwealth v. Gonsalves, 437 Mass. 1022, 773

N.E.2d. 941 (2002)………………………….……….….9, 21

Commonwealth v. Gonsalves, 441 Mass. 1007, 804

N.E.2d. 910 (2004)……………………………………10, 21

Commonwealth v. Lopez, 430 Mass. 244, 717 N.E.2d.

254 (1999)………………………….…6, 7, 9, 14, 21, 24, 26

Commonwealth v. Murphy, 423 Mass. 1010, 668 N.E.2d

349 (1996)………………………………………………21, 23

Commonwealth v. Neary-French, 475 Mass. 167, 56

N.E.3d. 159 (2016)…………………………………………20

Commonwealth v. Phinney, 448 Mass. 621, 863 N.E.2d.

496 (2007)………………………………………...3, 6, 10, 21

Commonwealth v. Rosario, 458 Mass. 1003, 934

N.E.2d. 807 (2010)…………………………………………22

Commonwealth v. Sparks, 431 Mass. 299, 727 N.E.2d.

78 (2000)…………………………………………………...5, 9

Dartmouth College v. Woodward, 17 U.S. 518

(1819)…………………………………………………....15, 16

Davis v. Gray, 83 U.S. (16 Wall.) 203 (1872)………….18

DiBella v. United States, 369 U.S. 121 (1962)………...19

Fletcher v. Peck, 10 U.S. 87 (1810)……………………...16

(viii)

TABLE OF AUTHORITIES—continued

Page

Fisk v. Jefferson Police Jury, 116 U.S. 131

(1885)……………………………………………………16, 17

Fields v. Bagley, 275 F.3d. 478 (6th Cir. 2001)……….20

Hall v. Wisconsin, 103 U.S. 10 (1880)……………...17, 18

Luis v. United States, 136 S. Ct. 1083 (2016)……..21, 22

Newton v. Commissioners, 100 U.S. 559 (1879)……....17

United States v. Gonzalez-Lopez, 548 U.S. 140

(2006)……………………………………………………..6, 20

United States ex rel. Thomas v. O’Leary, 856 F.2d. 1011

(7th Cir. 1988)……………………………………………...20

CONSTITUTIONAL PROVISIONS

U.S. Const., Art. I, Sec. 10, Cl. 1…….…1, 5, 6, 13, 14-17

U.S. Const., amend. VI………………….….2, 5, 13, 19-24

U.S. Const., amend. XIV……………………2, 6, 19, 23-24

OTHER AUTHORITIES

M.G.L. ch. 278, sec. 28E (2018)……………...…….3, 4, 21

M.G.L. Ste. 2017, ch. 47, sec. 2……………………….3, 18

Mass. R. Crim. P. 15..…….………4-5, 7-10, 13-14, 18-22

Racial Disparities in the Massachusetts Criminal

Justice System, Harvard Law School Criminal Justice

Policy Program (Sept. 2020).…………………………….24

(ix)

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner Pedro Vasquez respectfully petitions for a

writ of certiorari to review the judgment of the

Massachusetts Supreme Judicial Court.

OPINION BELOW

The opinion of the Massachusetts Supreme Judicial

Court is reported at 150 N.E.3d. 723 and is reproduced

in the appendix to this petition at Pet. App. A, at A 1-A

9. The findings of fact and conclusions of law of the

Single Justice petition, SJ-2017-0412, are unpublished,

reproduced in Pet. App. C, at C 4—C 5.

JURISDICTION

The Massachusetts Supreme Judicial Court issued

its opinion on August 13, 2020. Pet. App. A, at A 1-A 9.

The SJC denied a motion for reconsideration on

October 2, 2020. Pet. App. C, at C 1. This Court has

jurisdiction under 28 U.S.C. § 1257.

CONSTITUTIONAL PROVISIONS INVOLVED

Article I, Section 10, Clause 1 of the U.S.

Constitution provides:

No State shall enter into any Treaty, Alliance, or

Confederation; grant Letters of Marque and

Reprisal; coin Money; emit Bills of Credit; make

any Thing but gold and silver Coin a Tender in

Payment of Debts; pass any Bill of Attainder, ex

post facto Law, or Law impairing the Obligation of

Contracts, or grant any Title of Nobility.

2

The Sixth Amendment of the U.S. Constitution

provides:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein

the crime shall have been committed, which

district shall have been previously ascertained

by law, and to be informed of the nature and

cause of the accusation; to be confronted with the

witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and

to have the Assistance of Counsel for his defense.

The Fourteenth Amendment, Sec. 1, of the U.S

Constitution provides:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the state

wherein they reside. No state shall make or

enforce any law which shall abridge the

privileges or immunities of citizens of the United

States; nor shall any state deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its

jurisdiction the equal protection of the laws.

INTRODUCTION

Massachusetts rules of criminal procedure and state

statute provide that judicial decisions on motions to

suppress are subject to an interlocutory appeal to a

Single Justice of the Supreme Judicial Court by either

3

party. See Mass. R. Crim. P. 15(a)(2) (2017) and

M.G.L. ch. 278, sec. 28E. If the Government appeals,

they are responsible for the payment of the defendant’s

attorney’s fees and costs. See Mass. R. Crim. P. 15(d).

The defendant, and his or her attorney, must wait until

the end of the appeal to collect payment for the work

provided by the attorney. See Commonwealth v. Ennis,

808 N.E.2d. at 720.

“The provision for attorney’s fees and costs is a hybrid

of statute and rule.” Commonwealth v. Gonsalves, 739

N.E.2d. 1100, 1103 (2000). Massachusetts incorporated

the statutory provision regarding attorney’s fees in

Massachusetts Rules of Criminal Procedure 15(d). See

id. at 1105; see also Commonwealth v. Phinney, 863

N.E.2d. 496, 503 n. 2. “As has been discussed, Rule

15(d) reflects the Legislature’s intent, once stated in

G.L. c. 278 § 28E, that a “defendant be reimbursed for

attorney’s fees and costs associated with defending a

claim on which he or she has already succeeded.”

Gonsalves, 739 N.E.2d. at 1105. The Massachusetts

Legislature appropriates, via specific line item, these

specific payments, known as “Rule 15(d) payments.”

See M.G.L. Ste. 2017, c. 47, sec. 2 (line items 0330-0300

and 0340-0500—legislation in effect in 2017). The

payment, once approved, is paid by the corresponding

county district attorney and the trial court budget in

equal parts. See Phinney, 863 N.E.2d. at 500. The SJC

referred to the most current appropriation statute, and

policies and procedures of CPCS for court-appointed

counsel, as opposed to those in effect at the time the

contract with Mr. Vasquez was made, in 2017.

4

See Pet. App. A at A1-A9; see also Pet. App. D, at D

1—D 10 (citing the appropriate statute in effect at the

time the contract was made).

Prior to making the agreement with Mr. Vasquez,

Atty. Rivera had completed a separate and unrelated

appeal utilizing the Rule 15(d) process, where the client

in that case, Mr. Alvarez, also did not advance any fees,

and had nearly an identical contract as that which

Atty. Rivera had with Mr. Vasquez. See Pet. App. D at

D 13—D 18. The payment ordered by the Single

Justice in Mr. Alvarez’s case was made directly to Atty.

Rivera by the District Attorney’s office for defending

against their appeal. Id. at D 11—12. (copy of direct

payment to Atty. Rivera by district attorney).

A contract for the payment of attorney’s fees and

costs was executed by Mr. Vasquez and Atty. Rivera.

See id. at D 13—D 15. The SJC disparaged the

agreement as “illusory” and less than “bona fide.” See

Pet. App. A at A 1—A 9. But Mr. Vasquez was made

eligible for payment of his counsel fees when the

prosecutor used Mass. R. Crim. P. 15, and M.G.L. c.

278, sec. 28E, for the interlocutory appeal of an order

favoring Mr. Vasquez after a Motion to Suppress. See

Gonsalves, 739 N.E.2d at 1105-1106. The prosecutor’s

appeal triggered Mr. Vasquez’s eligibility under Rule

15(d) for the payment of his legal fees and costs for his

choice of counsel. Id.

At the time Mr. Vasquez entered into an agreement

with Atty. Rivera for legal services to defend against

the state’s interlocutory appeal, Massachusetts case

law was clear that those cases where Rule 15(d)

5

requests for fees were denied were those where there

was not an agreement with the client arranging for

payment for the services provided, unlike Mr.

Vasquez’s case. See Commonwealth v. Sparks, 727

N.E.2d. 78, 80-81 (2000) and Commonwealth v.

Augustin, 26 N.E.3d. 709, 715 at fn. 6 and fn. 12 (2013).

Mr. Vasquez was relying on payment being made in the

same manner already deemed to be legitimate by the

Single Justice in Mr. Alvarez’s case which had been

paid directly to Atty. Rivera for his services in that case

less than two months prior to the agreement with Mr.

Vasquez. Pet. App. D, at D1—D 10, and Pet. App. G,

at G 1—G 2. Mr. Alvarez did not advance payment to

Atty. Rivera, either; Atty. Rivera had the same

legitimate expectation of payment for his work as when

he was paid directly by Massachusetts under a contract

nearly identical as that one made with Mr. Vasquez.

Pet. App. D, at D 1—D 20. The SJC did not address

these facts at all. Pet. App. C, at C 1—C 3.

Instead, the opinion denies the right of compensation

in a manner already allowed and judicially approved,

thus impairing a contract deemed to be legal at the

time it was made. Pet. App. A, at A 1—A 9. The SJC

cites the latest appropriation statute as authoritative

and applicable; it was not, in fact, the applicable

statute at the time the contract was entered into and

the services performed by Atty. Rivera for Mr.

Vasquez’s benefit. See id. & Pet. App. D, at D 1—D 10.

Just as compelling as the Contracts Clause of Art. I,

Sec. 10, Cl. 1, is the right of a defendant to choose their

own counsel as guaranteed by the Sixth and

6

Fourteenth Amendments to the U.S. Constitution. See

U.S. v. Gonzalez-Lopez, 548 U.S. 140 (2006). This right

to the choice of counsel is implicit in Rule 15(d)’s right

to attorney’s fees. See Phinney, 863 N.E.2d. at 503 n. 2,

and Commonwealth v. Lopez, 717 N.E.2d. 254, 255

(1999), Gonsalves, 739 N.E.2d at 1105-1106.

A rule providing attorney’s fees only to those who

have funds to advance is dangerous, if not novel. Such

a rule establishes a caste system of criminal justice,

where criminal defendants are now required to advance

money to exercise what should be the free exercise of

that right to choose private counsel. Pet. App. A at A1A9. This is contrary to what is to be provided to

defendants under the attorney’s fees provision of Rule

15(d) which “states what it means and means what it

states.” Lopez, 717 N.E.2d. at 255-256 fn.2.

Equally dangerous is that the Government now has

at its disposal another tool it can use to further oppress

individuals accused of crimes when the prosecutor is on

the losing end of a favorable judicial decision. In the

United States, individuals are entitled to the equal

protection of the laws, whether they are rich or poor.

Excluding those who are poor from obtaining their

choice of counsel, where that choice to obtain private

counsel was formerly available them, is also contrary to

the Equal Protection Clause of the Fourteenth

Amendment to the U.S. Constitution. See Augustine,

26 N.E.3d. at 713, 715 at fn. 10 (leaving open and not

considering an Equal Protection argument). This is

particularly harmful where the right to choose private

counsel paid with public funds is granted by the

7

Massachusetts Legislature to even the playing field for

individuals accused of crimes, and presumed to be

innocent, in the face of an appeal by prosecutor. See

Lopez, 717 N.E.2d. at 256 fn.2. There had not been a

requirement before, as there is now, that individuals be

required to advance funds for their attorneys to obtain

payment for their services.

The decision appealed here, if it stands, would allow

prosecutors to act opportunistically and with unclean

hands in how they might seek to conduct the District

Attorney’s criminal justice business. See Augustine, 26

N.E.3d. at 713, 715 (citing prosecutor’s considerations

when seeking an interlocutory appeal include

budgetary considerations). By seeking to avoid

payment of attorney’s fees of defendants that are

legitimately earned by their lawyers, the prosecutor’s

office can appeal every case, without regard to

budgetary restraints considered to be part of their

political decision-making. See Augustine, 26 N.E.3d. at

713, 715. This has an unjust impact on indigent

defendants, who stand to lose the resources granted to

them through the payment provision of Rule 15(d),

which allows them to choose private counsel. See

Lopez, 717 N.E.2d. at 255-256 and Mass. R. Crim. P.

15(d) (2017).

Indeed, this evil has already started, with the

participating prosecutor’s office already contesting

payment in instances where both payments were

advanced, and not advanced, using Mr. Vasquez’s case

as their authoritative precedent, and thus

demonstrating bad faith to gain an unfair advantage

8

over criminal defense attorneys. Pet. App. H, at H 1—

H 9.

Equity and Justice should compel this Honorable

Court to intervene if the Law is to serve its Purpose.

STATEMENT OF THE CASE

A. Mr. Vasquez, charged with murder, prevailed on

a motion to suppress with CPCS appointed

counsel, Atty. Carr, and Massachusetts

appealed.

Mr. Vasquez was indicted in Hampden County

Superior Court for murder on April 30, 2015. Pet. App.

E, at E1. His CPCS court-appointed murder counsel,

Atty. Carr, represented him in the trial court. Pet.

App. A, at A 1—A 9. Prior to jury trial and pursuant to

Mass. R. Crim. 15(a)(2), the prosecutor appealed a

portion of Mr. Vasquez’s motion to suppress where Mr.

Vasquez had prevailed with Atty. Carr as counsel. Pet.

App. F at F 152. A provision of the same rule used by

the prosecutor to appeal, i.e., Rule 15(d), provides for

the payment of attorney’s fees for the defendant when

the state appeals from a motion to suppress it has lost.

See Mass. R. Crim. P. 15(d) (2017).

Though all three Rule 15 appeals were prepared by

Atty. Rivera for Mr. Vasquez, he entered his

appearance for Mr. Vasquez before the Massachusetts

Supreme Judicial Court on only the Government’s

appeal. Pet. App. F at F 166—F 168, F 178. It is only

that work related to Mr. Vasquez’s defense of the

government’s Rule 15 appeal, and the subsequent

litigation to collect the attorney’s fees sought, which is

9

the subject of the fees sought in this instant case. Pet.

App. A, at A 1—A 9.

B. Mr. Vasquez and Atty. Rivera entered into a

private payment agreement for attorney’s fees

and costs for Atty. Rivera’s services to defend

Mr. Vasquez against the Government’s

interlocutory appeal.

Atty. Rivera and Mr. Vasquez entered into a written

agreement whereby Atty. Rivera agreed to provide his

services to defend against the Government’s appeal for

payment in exchange for Mr. Vasquez’s grant to Atty.

Rivera of his Rule 15(d) attorney’s fees and costs

reimbursement rights. Pet. App. D, at D 13—D 15.

Both Augustine and Sparks cases lacked such explicit

written agreements. See Sparks, 727 N.E.2d at 80-81

and Augustin, 26 N.E.3d. at 715. Unlike those cases

where the SJC had denied payment, there was in this

case a contract signed and executed between Mr.

Vasquez and Atty. Rivera. Pet. App. D, at D 13—D 15.

In Augustine, the client was explicitly told by the

ACLU attorney that he was being represented at no

charge to him. Augustine, 26 N.E.3d. at 713. The

opinions in both Augustine and Sparks found it

factually significant that there was a lack of a written

contract between the parties. See Augustine, at 26

N.E.3d. at 715 fn. 6, and Sparks, 727 N.E.2d. at 80-81.

Thus, Mr. Vasquez could reasonably expect that there

would be payment for services rendered on his behalf

by Atty. Rivera pursuant to their agreement and Rule

10

15(d). See Lopez, 717 N.E.2d. 254 (1999), Gonsalves,

739 N.E.2d. 1100 (2000), Gonsalves, 773 N.E.2d. 941

(2002), Gonsalves, 804 N.E.2d. 910 (2004), and

Phinney, 863 N.E.2d. 496 (2007).

During the month of October 2017, while the

Government was preparing the subject appeal in this

case, and prior to any agreement for payment being

made for any services rendered under the contract

made, Atty. Rivera, pro bono, prepared Mr. Vasquez’s

interlocutory appeal for that portion of the same motion

to suppress, litigated by Atty. Carr, and which was

denied to Mr. Vasquez. Pet. App. D, at D 1—D 20 and

Pet. App. F, at F 1—F 29.

The Single Justice allowed both Mr. Vasquez’s

petition and the Government’s on January 3, 2018.

Pet. App. B, at B 2—B 5. Atty. Rivera, again pro bono,

prepared another interlocutory appeal for Mr. Vasquez,

after his trial counsel, Atty. Carr, filed a second motion

to suppress which had been denied. Id. at B 1. Mr.

Vaquez’s petition for an interlocutory appeal of his

second motion to suppress was granted on March 1,

2018. Id. There was no further agreement made

between Mr. Vasquez and Atty. Rivera for the

performance of any work beyond the state appeal

before the Single Justice; their agreement called for a

separate agreement for any further services rendered

by Atty. Rivera on behalf of Mr. Vasquez. Pet. App. F,

at F 1—F 29.

Thereafter, appellate counsel, Atty. Merritt

Schnipper, was appointed by CPCS to represent Mr.

Vasquez on the three appeals. Pet. App. B, at B 1—B 9.

11

The appeals were consolidated and litigated by Atty.

Schnipper, concluding with a decision by the SJC on

July 23, 2019. Pet. App. C, at C 1—C 2. As called for

by the prevailing case law, Atty. Rivera then filed a

timely request for the attorney’s fees and costs owed for

that portion of work performed for the defense against

the Government’s appeal for his appearance for Mr.

Vasquez on SJ-2017-0412 before the SJC, which had

considered Mr. Vasquez’s consolidated appeal. See Pet.

App. F at F 1—F 444; see also Commonwealth v. Ennis,

808 N.E.2d. at 720. The appeal was submitted on

September 21, 2019, with a Reply to the Government’s

Response on November 2, 2019. See Pet. App. F, at F

1—F 444. Atty. Rivera also submitted detailed billing

information to the Court. Id. at F 399—F 407.

C. The Massachusetts Supreme Judicial Court

referred the matter to the Single Justice, who

held a telephonic hearing on June 29, 2020, and

who later authored the opinion adopted

unanimously by the Court.

The payment matter was referred to the Single

Justice who authored the full court’s opinion in

Commonwealth v. Vasquez, SJC No. 12562, for

recommendation of a decision to the full bench. Pet.

App. A at A1-A9; Pet. App. C, at C 1—C 3. The order

for the telephonic hearing stated that the parties

should be prepared to address their respective

positions. Id. During a telephonic hearing on June 29,

2020, the Single Justice ordered the production of

12

emails between Atty. Rivera, Atty. Carr, and CPCS

regarding any approval of Atty. Rivera’s

representation. Id. Only Atty. Rivera was required to

provide parole evidence to the Single Justice in the

form of email communications between him, Atty. Carr,

and CPCS, concerning Atty. Rivera’s representation of

Mr. Vasquez. Pet. App. I (“EYE”), at I (“EYE”) 1—I

(“EYE”) 23. CPCS was not a party to this matter and

did not formally address the Court. 1 Furthermore,

CPCS declined to address the Court or otherwise take a

position on the case after Atty. Rivera contacted CPCS

regarding the matter and before filing a Motion for

Reconsideration. Pet. App. J, at J 1—J 4.

D. Mr. Vasquez did not advance fees to Atty.

Rivera because payment of his fees and costs

were going to be sought at the conclusion of the

appeal, pursuant to the applicable state rules of

criminal procedure providing for payment of

attorney’s fees in such instances.

In the written contract, it was made clear that the

payment of Atty. Rivera’s fees by Mr. Vasquez would be

sought in further litigation pursuant to Rule 15(d).

1

The fact that the Director of Operations and Administration for

CPCS is the spouse of the Single Justice who presided over the

telephonic hearing and authored the Court’s opinion in the case

was not disclosed to counsel and was discovered by him after the

hearing and opinion; this made any objection or request for recusal

by the Single Justice based on a conflict of interest or the

appearance of impropriety impossible prior to the hearing and

issuance of the SJC’s opinion.

13

Pet. App. D, at D 14. The contract limited the extent of

Atty. Rivera’s representation to the defense of the

Government’s appeal before the Single Justice. Id.

Atty. Rivera thereafter performed the work. Pet. App.

F, at F 1—F 444. Atty. Rivera also kept

contemporaneous records of the time spent on the

matter. Id.

E. The Court created a novel requirement that

clients must advance attorney’s fees to be

reimbursed for those fees.

The Single Justice who presided at the telephonic

hearing issued the subject opinion of this Petition on

behalf of the full court on August 13, 2020. Pet. App A,

at A 1—A 9. As reasons for denying the payment of

attorney’s fees and costs, the Court created a

requirement that money be advanced by the client. Id.

The Court viewed Mr. Vasquez as ineligible for the

payment of his attorney’s fees for his chosen appellate

counsel because he already had court-appointed

counsel. Id. The Court conflated Atty. Rivera’s

explanation at the telephonic hearing that he had no

expectation that the client would pay him because it

would be the state, ultimately, who had to pay him

pursuant to Rule 15(d), with the idea that Mr. Vasquez

would not be responsible for payment. Id. This

unfairly distorts the facts and, thereafter, the law

applied.

F. The Court denied hearing Mr. Vasquez’s federal

claims regarding the violation of the Contracts

14

Clause of Art. I, Sec. 10, the Equal Protection

Clause, and Mr. Vasquez’s Sixth Amendment

claim regarding his right to his choice of counsel

granted to him by Rule 15(d).

Mr. Vasquez filed a Motion to Reconsider on

September 11, 2020. Pet. App. D, at D 1—D 14. In the

Motion to Reconsider, Mr. Vasquez raised the federal

claims presented in this Petition, and invoked state law

providing for the mandatory review by the full bench of

its opinion. Id. citing Lopez, 717 N.E.2d. 254 (1999).

The Court denied hearing how its new requirement

that fees be advanced by clients did not apply at the

time the contract was executed, neither by custom nor

practice, nor by the appropriation statute in effect at

the time. Id. The Court relied instead on its own fiat,

using the newest appropriations statute regulating and

setting aside funds for Rule 15(d) payments as its

authority, so as to pass and change the intent of a law

already deemed to mandate payments of attorney’s fees

and costs in contravention of the intent of the

Massachusetts Legislature and the Contracts Clause of

Art. I, Sec. 10, Cl. 1 of the U.S. Constitution. See

Gonsalves, 739 N.E.2d. at 1105, and Mass. R. Crim. P.

15 (d).

Despite presenting evidence of payment directly

made to Atty. Rivera in a similarly constructed

agreement, i.e., without advance payments made by

the client, the Court refused to grant further appellate

review, foreclosing any other remedy, on October 2,

2020. Pet. App. C, at C 1—C 3. This Petition for Writ

15

of Certiorari before this Honorable Court follows,

pursuant to 28 U.S.C. § 1257.

This Petition is filed within 150 days from the date of

the judgment denying the Mr. Vasquez’s Motion for

Reconsideration, as set forth in this Honorable Court’s

Order List: 589 U.S., Thursday, March 19, 2020, Order,

extending deadlines for any petition for a writ of

certiorari due.

REASONS FOR GRANTING PETITION

I. THE DECISION BELOW IS A DANGEROUS

PRECEDENT DENYING THE FUNDAMENTAL

RIGHT TO CONTRACT BETWEEN PRIVATE

PARTIES, AND WHICH DOES NOT PROVIDE

EQUAL PROTECTION TO THE FREE EXERCISE OF

THE CHOICE OF PRIVATELY COMPENSATED

COUNSEL.

This Honorable Court has held contractual rights

between individuals as inviolable and enforceable

obligations. See Sturges v. Crowninshield, 17 U.S. (4

Wheat.) 122 (1819). In Dartmouth College v.

Woodward, 17 U.S. 518 (1819), Daniel Webster stated

during argument before this Court, 210 years ago:

Individuals have the right to use their

own property for purposes of benevolence,

either towards the public, or towards

other individuals. They have the right to

exercise this benevolence in such lawful

manner as they may choose; and when the

government has induced and excited it, by

16

contracting to give perpetuity to the

stipulated manner of exercising it, to

rescind this contract, and seize on the

property, is not law, but violence.

Whether the state will grant these

franchises, and under what conditions it

will grant them, it decides for itself. But

when once granted, the constitution holds

them to be sacred, till forfeited for just

cause. 2

This Court held in Dartmouth College v. Woodward

that the Contracts Clause applied to protect private

corporations chartered under laws existing before the

creation of the State. Dartmouth College, 17 U.S. 518

(1819). This extended the principles set out ten years

prior in Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810),

which stands for the principle of contractual rights that

depend on the prevailing law in force at the time

agreements are made, and even despite the bribery

involved in obtaining the contracts in that case. Id.; see

also Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122

(1819).

Respecting the Contracts Clause as applied between

individuals and the state, this Court, in Fisk v.

Jefferson Police Jury, 116 U.S. 131, 133-134 (1885),

found that the constitutional protections afforded by

2

Daniel Webster, Speeches and Forensic Arguments, Argument,

Dartmouth College v. Woodward, 110-137, at 123-124 (Perkins &

Marvin 1830) (Emphasis in original).

17

the obligation of contracts clause covered not just

“express contracts” and “specific agreements,” but:

“that much larger class in which one party

having delivered property, paid money,

rendered service, or suffered loss at the

request of or for the use of another, the

law completes the contract by implying an

obligation on the part of the latter to make

compensation.

This obligation can no

more be impaired by a law of the State

than that arising on a promissory note.”

Fisk v. Jefferson Police Jury, 116 U.S. at 133134.

This Court ordered that Atty. Josiah Fisk be

compensated for services he rendered as Parish

Prosecutor for Jefferson County in Louisiana, finding

that the state supreme court’s conclusion that Atty.

Fisk’s employment as attorney for the parish did not

constitute a contract, neither through salary nor

compensation as fees, was erroneous under the

Contracts Clause of Art. I, Sec. 10, Cl. 1 of the U.S.

Constitution. Id.

Fisk relied on prior decisions by this Court in Hall v.

Wisconsin, 103 U.S. 10 (1880) and Newton v.

Commissioners, 100 U.S. 559 (1879), both of which

point to Justice Story’s venerable opinion in Dartmouth

College. See Hall, 103 U.S at 10-11, and Newton, 100

U.S. at 557, citing Dartmouth College. The Hall

decision applied the protection of the Contracts Clause

to a contract made between a state and an individual

18

where that individual was to perform (and did perform)

certain duties for a specified time period at a stipulated

compensation, pursuant to an express contract. Hall,

103 U.S. at 10-11.

In Hall, the legislature repealed the statute upon

which Mr. Hall and the governor of the State of

Wisconsin relied when they agreed for him to be paid

for land surveying duties he had performed for the

state’s benefit. Hall, 103 U.S. at 10-11. Hall

reaffirmed the state’s pro hac vice status as a private

person when contracting with private persons, citing

Davis v. Gray, 83 U.S. (16 Wall.) 203 (1872). Thus, this

Honorable Court granted Mr. Hall his payment,

holding the status of the contractual obligation no less

enforceable as that of one made between two private

individuals. Hall, 103 U.S. at 11.

In Mr. Vasquez’s case, the obligation made was

explicit in the form of a written contract. Pet. App. D,

at D 14—D 15. Mr. Vasquez’s valuable consideration

was the grant to Atty. Rivera of those fees recoverable

under Rule 15(d). Id. A Legislative appropriation was

in place to fund Rule 15(d) attorney’s fees. See M.G.L.

Ste. 2017, c. 47, sec. 2. Atty. Rivera gave valuable

consideration providing legal services to Mr. Vasquez

under the terms of their contract. Pet. App. D, at D 1—

D 14, and Pet. App. F, at F1—F 444.

Mr. Vasquez also timely tendered his request for fees.

Id. Nevertheless, the SJC ruled the contract to be

illusory because of a lack of consideration and because

Atty. Rivera “candidly” replied that he expected

payment directly from the state and not from Mr.

19

Vasquez. Pet. App. A, at A 1—A 9. Atty. Rivera’s

expectation of payment in that manner was based on

prior judicial approval, by a Single Justice, of one

hundred percent of his requested fees and costs in a

matter where the state, ultimately, made the payment

directly to him. Pet. App. D, at D 1—D 14 and Pet. App.

J, at J 1—J 2.

The SJC deemed Mr. Vasquez’s status as already

having court-appointed counsel as conclusive in

determining that he was not eligible to obtain payment

for his attorney’s fees, despite Rule 15(d)’s plain

language to the contrary. See Mass. R. Crim. P. 15(d)

(2017). In so doing, the Court fashioned an approach

contrary to Rule 15(d)’s purpose to provide funds for a

defendant’s appellate counsel of choice when the state

has appealed a motion to suppress ruling favorable to

that defendant. Id. The Court’s conclusion is offensive

to the U.S. Constitution because it withholds a right

formerly granted by the state through Rule 15(d), here

the free exercise of choice of appellate counsel as

guaranteed by the Sixth Amendment, by requiring the

advancement of property in the form of money to secure

that right, and in violation of the Fourteenth

Amendment’s Equal Protection Clause. Pet. App. A, at

A 1—A 9.

Free is no longer free unless you pay—literally. Id.

This cannot be the case.

An interlocutory appeal is a “critical stage” of the

proceedings against the defendant, and the Sixth

Amendment entitles him or her to counsel. See DiBella

v. United States, 369 U.S. 121, 131 (1962) (finding an

20

interlocutory appeal is “a step in the criminal case

preliminary to the trial thereof”); and, Coleman v.

Alabama, 399 U.S. 1, 9 (1970) (holding defendant is

entitled to counsel at every critical stage of the

proceeding); see also Commonwealth v. Neary-French,

56 N.E.3d. 159 (2016) (construing under Massachusetts

law “critical stage” events as those where “potential

substantial prejudice to the defendant’s rights inheres

in the confrontation” and counsel’s participation will

help avoid that prejudice). Federal courts have held

that a prosecution of an interlocutory appeal is a Sixth

Amendment critical stage, and the failure of private

counsel to defend an interlocutory appeal is prejudicial

per se, where the prosecution’s appeal is successful.

See, e.g., Fields v. Bagley, 275 F3d 478, 483-486 (6th

Cir. 2001); Blankenship v. Johnson, 118 F3d 312, 317

(5th Cir. 1997); and United States ex rel. Thomas v.

O’Leary, 856 F2d 1011, 1014 (7th Cir. 1988).

Rule 15(d) protects both the systemic interest in

defense counsel’s participation, and the defendant’s

constitutional right to representation, when an

interlocutory appeal is made by Massachusetts of a

decision favorable to him. Where the defendant can

arrange to privately retain counsel, the Sixth

Amendment entitles them to representation by counsel

of their choice. United States v. Gonzalez-Lopez, 548

U.S. 140, 147-148 (2006); see also Commonwealth v.

Francis, 147 N.E.3d. 491 (2020). Rule 15(d)’s protection

extends to this right. Gonsalves, 432 Mass. at 617.

When administered as designed, Rule 15(d) protects

the Appellee’s constitutional right to chosen counsel

during the interlocutory appeal.

21

Luis v. United States, 578 U.S. __ (2016), 136 S. Ct.

1083 (2016) (J. Breyer), cited by Mr. Vasquez in his

Motion for Reconsideration, concerned the freezing of

assets belonging to Ms. Luis, pursuant to a federal

criminal statute allowing pre-trial asset seizure upon

accusations of violations of federal laws concerning

health care and banking. See Pet. App. D, at D 1—D

10. This Honorable Court held the Sixth Amendment

choice of counsel right important enough for Ms. Luis

to have pre-trial access to as much of her untainted

funds to pay for her choice of counsel. Id. In so doing,

this Court considered “the nature and importance of

the constitutional right taken together with the nature

of the assets.” Luis, 578 U.S. __, 136 S. Ct. at 1087.

The limits of the right to the choice of counsel for

indigent defendants is pointed out by this Court in

Caplin & Drysdale, Chartered v. United States, 491

U.S. 617 (1989), and in Luis. Luis, 578 U.S. __, 136

S.Ct. at 1087. However, the Sixth Amendment Right to

the choice of counsel for indigent persons exists here

where Mr. Vasquez is granted a benefit conferred by

the hybrid Massachusetts statute-rule; the hybrid rule

expands his Sixth Amendment right to include

obtaining his choice of counsel, in the specific instance

where the prosecutor appeals a motion to suppress

successfully litigated by the defendant, pursuant to

Rule 15 and M.G.L. c. 278 sec. 28E. See Lopez, 717

N.E.2d. 254 (1999), Gonsalves, 739 N.E.2d. 1100 (2000),

Gonsalves, 773 N.E.2d. 941 (2002), Gonsalves, 804

N.E.2d. 910 (2004), Phinney, 863 N.E.2d. 496 (2007),

22

Murphy, 668 N.E.2d. 349, and Commonwealth v.

Rosario, 934 N.E.2d. 807 (2010). The legislative intent

is clear that the payment is mandated. See Mass. R.

Crim. P. 15(d).

The judicial inquiry regarding the review of payment

is not meant to question the wisdom of the legislative

appropriation, but to address the reasonableness of the

time spent by the attorney on the matter, which the

Court did not do here. Pet. App. A, at A 1—A 9.

Significantly, this Court, in Caplin & Drysdale, did not

have before it an Equal Protection claim. Caplin &

Drysdale, 491 U.S. 617 (1989).

This Honorable Court should consider the nature of

the assets at issue in this case, the right to Mr.

Vasquez’s choice of counsel granted by the

Massachusetts rule, and its prior application in

practice. The nature of the property at issue, i.e.,

access to those funds appropriated by the Legislature

for the payment of defendants’ attorney’s fees in Rule

15(d) appeals, is untainted. Luis, 578 U.S. __, 136 S.

Ct. at 1087. The untainted asset of public funds,

designated and appropriated by the Legislature for the

specific benefit of providing payment to attorneys hired

by defendants who have prevailed in criminal hearings

to respond to the government’s appeal, are analogous to

the untainted nature of the funds at issue in Luis. Id.

Mr. Vasquez belongs to a class of individuals for

which payment of his attorney’s fees and costs had

been mandatory until the decision appealed here

denied access to those funds for the payment of his

counsel. Pet. App. A, at A 1—A 9. The equitable

23

application of a rule providing for the payment of

attorney’s fees for the choice of appellate counsel

suggests that this Court should enforce Mr. Vasquez’s

right to access those public funds appropriated by the

Legislature to be used for the purpose for which they

are sought, i.e., the right to pay for the defendant’s

choice of appellate counsel. See Murphy, 668 N.E.2d

349.

The SJC’s new exclusion of indigent defendants from

receiving the right to their choice of counsel from a

statute meant to benefit them, and which had benefited

them in past practice, violates the Equal Protection

Clause of the Fourteenth Amendment. See Augustine,

26 N.E.3d. at 713, 715 at fn. 10 (leaving open and not

considering an Equal Protection argument). While it is

true that the Sixth Amendment does not generally

provide for the choice of counsel for indigent

defendants, conditioning an indigent defendant’s access

to appellate counsel of his or her choice on the ability to

pay for that counsel, when that same right had

formerly been allowed to be exercised freely, has the

same unconstitutional effect of requiring payment for a

license for liberty, where neither license nor payment

for that liberty is required. Moreover, the Court’s

exclusion of indigent people disparately impacts Black

and Hispanic/Latino populations who comprise the

majority, per capita, of the criminal defendant

population in the Massachusetts criminal justice

24

system deemed to be indigent and, therefore, eligible

for court-appointed counsel.3

This is the principal evil against which Mr. Vasquez’s

Petition directs his Equal Protection claim, because of

the plain language of the rule and the SJC’s ruling

that, with respect the Mass. R. Crim. P. 15(d), “the rule

and the governing law establish that payment of the

defendant’s attorney’s fees and costs is mandatory.”

Pet. App. D, at D 1 citing Lopez, 717 N.E.2d. 254.

II. THIS CASE IS AN IDEAL VEHICLE FROM

ALLOWING THE STATE COURT TO ILLEGALLY

IMPAIR THE OBLIGATIONS OF A LAWFUL

CONTRACT THROUGH THE STATE COURT’S

NOVEL REQUIREMENT OF THE ADVANCEMENT

OF FEES, THEREBY PREVENTING A CRIMINAL

JUSTICE CASTE SYSTEM FROM TAKING ROOT

WITHIN THE SIXTH AMENDMENT RIGHT TO THE

CHOICE OF COUNSEL, AND THE EQUAL

PROTECTION OF THE LAWS GUARANTEED IN

THE FOURTEENTH AMENDMENT

A. The decision below has grave implications for

indigent criminal defendants.

If the decision below stands, it will eliminate the

right to the choice of counsel granted by the state to

3

Further support demonstrating the demographic make-up of

indigent defendants are set out in Racial Disparities in the

Massachusetts Criminal Justice System, Harvard Law School

Criminal Justice Policy Program (Sept. 2020) available at

https://hls.harvard.edu/content/uploads/2020/11/MassachusettsRacial-Disparity-Report-FINAL.pdf.

25

defendants, even though that right is guaranteed and

funded by the legislature. The prosecutor’s exploitation

of this decision has already begun. Pet. App. H, at H

1—H 4. This decision would allow a pernicious

precedent to lie where the Legislature may expand a

right by statute and entrust to the courts, via court

rule, its intended application, only to have the Court

reach the opposite result. The decision signals to the

other States yet another manner the prosecuting

authority can further oppress accused indigent

defendants by dangling before them a right they can

only buy. This decision will result in a 21st Century

caste system of American criminal justice, where access

to justice is bought and sold.

B. This is the right vehicle for the Court to

address the questions presented.

Without the Court’s holding, Mr. Vasquez’s contract

with Atty. Rivera would have been enforced, and the

only proper question by the Court to consider would be

the reasonableness of the amount requested.

As it stands, the decision below does not rely on any

grounds other than what was presented on the papers

and the telephonic hearing. Pet. App. A, at A 1—A 9.

Reaching a conclusion based on important factual

considerations set forth in its opinion, while not fairly

addressing those considerations at the hearing, and

then later ignoring a presentation to the Court of facts

refuting those found in their opinion with the denial of

a full hearing, is an unconscionable abuse of judicial

power.

26

That evil is only compounded where the Court ignores

its own precedents in so doing, including the right to

Full Court review where a Single Justice denies the

payment of any fees, which was denied to Mr. Vasquez.

See Lopez, 717 N.E.2d. 254.

C. GVR is appropriate because the underlying

decision is clearly erroneous.

The Court should grant, vacate, and remand the

underlying decision because doing so will prevent the

clearly erroneous practice of deny to indigent

defendants the right to their choice of counsel where

state law affords them the funding to exercise that

right, while also preserving this Court’s limited

resources. As explained above, it was clearly erroneous

for the Supreme Judicial Court to impair the contract

made between an indigent attorney and his private

counsel.

A GVR order here is consonant with “conserv[ing]

the scarce resources of this Court,” Lawrence v. Chater,

516 U.S. 163, 167 (1996) (per curiam), and prevent a

dangerous practice from taking root and spreading

across jurisdictions. This Court would be best served

by giving the Supreme Judicial Court the opportunity

to revisit its holding now, since the legislative intent

and state precedent regarding the mandatory nature of

payments is clear that defendants in Massachusetts

have the right to choose counsel, and have their counsel