82 N.E.3d 1002
Mass.2017Background
- Peter Duart was convicted after a judge-waived (bench) trial in Dukes County of rape (subsequent offense) and indecent assault and battery (lesser included offense); sentenced to ten years to ten years and one day and probation.
- Before trial Duart moved for change of venue due to notoriety from a prior conviction; the motion was denied and defense and defendant discussed waiving a jury; Duart signed a written jury-waiver and the bench trial proceeded.
- After trial Duart learned the trial judge's son was an assistant district attorney in the Cape and Islands district and moved for a new trial alleging: (1) the jury waiver was not knowing because the judge failed to disclose his son’s employment; and (2) defense counsel was ineffective for not informing Duart of that relationship before advising waiver.
- The trial judge recused from ruling on the new-trial motion; a different Superior Court judge held an evidentiary hearing, found counsel knew of the son’s employment but Duart likely did not, and denied the motion.
- The motion judge concluded the judge’s nondisclosure did not require recusal because the son had no role in Dukes County Superior Court prosecutions and no supervisory role, and that although counsel’s failure to inform Duart fell below acceptable performance, Duart failed to prove prejudice (he likely would still have waived due to venue concerns and the risk of juror knowledge of his prior conviction).
- The Supreme Judicial Court affirmed: nondisclosure by the judge was not required under the governing recusal standard; counsel’s omission was deficient but not prejudicial, so denial of the new-trial motion was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Judicial disclosure/recusal | Trial judge should have disclosed that his son worked in the prosecuting DA's office; nondisclosure made the jury waiver invalid | The familial tie did not reasonably call the judge's impartiality into question because the son had no involvement in Dukes County Superior Court cases or supervisory role | Judge had no duty to disclose; nondisclosure was not an abuse of discretion and did not require recusal |
| Ineffective assistance for failing to inform about the judge's familial tie | Counsel’s failure to tell Duart about the judge’s son deprived Duart of making an informed waiver and thus amounted to ineffective assistance | Even if counsel’s omission was deficient, Duart cannot show a reasonable probability he would have chosen a jury trial given venue concerns and risk jurors knew of his prior conviction | Counsel’s performance was deficient (below Saferian), but Duart failed to show prejudice; no new trial warranted |
Key Cases Cited
- Commonwealth v. Saferian, 366 Mass. 89 (1974) (standard for ineffective assistance: conduct falling measurably below that expected of ordinary fallible lawyer)
- Commonwealth v. Lavrinenko, 473 Mass. 42 (2015) (prejudice standard for counsel errors; reasonable probability and rational decision framework)
- Commonwealth v. Ciummei, 378 Mass. 504 (1979) (jury-waiver must be voluntary and intelligent; judge must satisfy himself waiver is made knowingly)
- Adams v. United States ex rel. McCann, 317 U.S. 269 (1942) (waiver must be a free and intelligent choice)
- Commonwealth v. Leventhal, 364 Mass. 718 (1974) (judge not obliged to disclose information unless judge believes impartiality might reasonably be questioned)
- Commonwealth v. Osborne, 445 Mass. 776 (2005) (jury trial is a fundamental right preserved by art. 12)