Lawyer As Witness Issue Justifies Limited Disqualification

The full Massachusetts Supreme Judicial Court affirmed a single justice’s decision to not disqualfy an entire District Attorney’s office in a criminal prosecution where a member is the victim and a potential witness.

The Commonwealth had appealed the disqualification order

The victim of one of the counts of solicitation to commit murder in the Hampshire County case is the prosecutor in the Hampden County case, Matthew Green. On the basis that, through certain of his own actions, Green made himself a potential witness at trial, Scanlon filed a motion to disqualify him, as well as the whole of the district attorney’s office for the Hampden district, from prosecuting the Hampden County indictment, and to instead appoint a special prosecutor.

Facts

Scanlon’s motion to disqualify Green stems from Green’s involvement with Christopher Fiorentino, a so-called jailhouse informant, who was incarcerated with Scanlon at the Hampshire County house of correction. Fiorentino told State police investigators that Scanlon had made statements and admissions about the murder, and that Scanlon had tried to engage Fiorentino in a murder-for-hire plot targeting both Green and several Commonwealth witnesses. The Commonwealth and Fiorentino entered into an agreement providing that in exchange for Fiorentino’s cooperation with the Hampden district attorney’s office regarding the investigation and prosecution of Scanlon, the Commonwealth would take Fiorentino’s cooperation into consideration in two contexts: (1) in resolving his pending criminal matters within the Hampden district attorney’s office; and (2) to “assist and inform” the Worcester district attorney’s office regarding the resolution of his pending probation violation in that county. The agreement was signed by Green.

In the course of upholding the cooperation agreement, Green appeared in court in Worcester County as least twice to, in Green’s own words, “advocate[]” for a lower sentence for Fiorentino in connection with his probation violation in the county. Green also advocated on Fiorentino’s behalf several times when Fiorentino sought modifications of certain conditions of release that would apply once he becomes eligible for release.

The Commonwealth opposed any disqualification

The judge’s decision was not baseless — she did not arbitrarily or with no reason disqualify a prosecutor, and she only disqualified Green, not the entire office as Scanlon had requested. Additionally, this is not a case of a judicial ruling that bears on whether to prosecute. See, e.g., Commonwealth v. Rosa, 491 Mass. 369, 372 (2023), and cases cited (decision to proceed with prosecution lies exclusively with executive branch). In short, the judge’s decision does not amount to an “intolerable interference by the judiciary” in the executive branch. This is simply a case where a judge made a discretionary decision, based on the particular circumstances of the case, to disqualify an attorney who may well be a witness at trial.

(Mike Frisch)