The Kickham Comment - Boston Criminal Attorney Blog
By now almost everyone in Massachusetts, and outside the state, has heard of the horrific story of how Kevin P. Quinn, an Afghanistan combat veteran, 32 year-old married man and the very recent father of his first born baby, was killed by a reckless driver – a criminal defendant who was let out on probation – evading Mashpee police in a high-speed chase. Mr. Quinn‘s car was hit head-on by one Mickey A. Rivera, a 22 year-old troublemaker from Fall River who had a criminal history with the courts. Quinn had just left the hospital visiting his wife and newborn, when Rivera, fleeing Mashpee police who were pursuing him for reckless driving and speeding, hit Burke’s vehicle head-on in Cotuit. Mr. Burke was killed instantly in the accident, as was Rivera. A passenger with Mr. Rivera, one Jocelyn Goyette, age 24 from New Bedford, was ejected from Rivera’s vehicle but survived long enough to be transported to a hospital, but now she, too is dead. She had a 4 year-old son. It is not known why she was in Rivera’s SUV at the time of the crash.
People across Massachusetts, and indeed the nation – are outraged by this tragic story. And they have every right to be.
Now all three people involved in this police chase (with the exception of the police officer involved) are dead, including Kevin Burke. His young wife is now a widow, his newborn baby is left fatherless, and the airways and internet have heated up, because it’s been learned that Rivera was out on bail when this tragic event occurred. Rivera had been previously held in jail related to a 2015 armed robbery case that resulted in someone’s murder in Fall River. He was released on bail in that case, last fall.
The first and most visceral public reaction to this tragedy has been to attack the judge who reduced Rivera’s bail last September (2017), setting him free. After being held for more than two years in connection with 2015 armed robbery & homicide case, Superior Court judge Thomas McGuire Rivera, upon motion by Rivera’s attorney, lowered Rivera’s bail from $35,000 to $1,000. After Rivera’s family posted that $1,000, he was released on Sept 19, 2017. Now, almost everyone’s anger is being directed at the judge, in disbelief that he could have ordered such a sharp bail reduction. How, everyone is asking, could Rivera have been let out on the streets? If he hadn’t been, this entire tragedy never would have happened. The anger is justified, but it’s misdirected.
The truth is that there are three reasons why Rivera was on the streets – and judge McGuire wasn’t entirely to blame here. If anything, the blame can be traced to three sources: 1) The Massachusetts Department of Probation (Fall River Superior Court office), 2) The Massachusetts Supreme Judicial Court (SJC), as well as 3) The Cape & Island’s District Attorney’s Office – which has admirably accepted its share of what went wrong here, through comments issued by District Attorney Michael O’Keefe.
I’ll address these three reasons why Rivera was out on the streets, in sequential order. This will take some length, but this tragedy didn’t happen overnight (even though it may seem that way.)
First, let’s talk about why Rivera was out on bail, at all. The state Supreme Judicial Court issued a landmark ruling on the subject of bail just about a year ago, in August 2017, clarifying that the purpose of bail is to assure a defendant’s appearance (return) to court – not to punish a defendant before a verdict or decision is reached in his or her case. In that widely debated opinion in Commonwealth v. Brangan, the SJC ordered lower court judges (in the District Courts and Superior Courts) to place primary emphasis in setting bail amounts, on how much bail a given defendant can afford to pay – the ruling strongly indicated that all other factors should be subordinated to that one overriding factor.
Translated, the SJC’s order to all Massachusetts judges setting defendants’ bail from that point on was to ask: “What can the defendant afford to pay for bail? That is the primary question.” After that SJC decision was handed down about a year ago, the entire process of judicial bail-setting changed overnight. A few months after that SJC directive (in the fall of 2017), Rivera’s attorney filed a motion in Fall River Superior Court to release Rivera on bail, attaching a copy of the SJC’s recent bail ruling discussed above, and the motion was heard by Judge McGuire, who lowered Rivera’s bail from $35,000 to $1,000 last fall and thus allowed him to be back on the streets. In doing so, judge McGuire was effectively following orders from his superiors on the state’s supreme court. Quoting from that SJC ruling: “A bail that is set without any regard to whether a defendant is a pauper or a plutocrat runs the risk of being excessive and unfair.”
The Fall River Superior Court had already ruled Rivera to be indigent. The prosecutor appearing before judge McGuire on that motion objected to the judge lowering Rivera’s bail but didn’t seek to have Rivera held on something called a “Dangerousness Hearing”, which allows a criminal defendant to be held without bail for 120 days while a case is pending, and so judge McGuire acted accordingly. However, in the interests of balance it must be said that that the Brangan decision still allows judges to set high cash bail amounts if the judge justifies those reasons in writing. Judge McGuire chose not to keep bail where it was ($35,000.00), or alternatively reduce it to perhaps $20,000.00 or $15,000.00. I wasn’t in the courtroom when he made his decision, but as an experienced criminal defense attorney, I’m guessing that, one month out from the Brangan ruling being given to judges, judge McGuire’s focus was on one primary factor: Obeying the SJC’s ruling by asking: “What can the defendant afford for bail?” Rivera having previously been declared indigent, bail was set at $1,000.00. That does not excuse this one element of what happened here – it only explains it.
As a Barnstable County criminal defense attorney, I feel that the SJC’s Brangan decision was imbalanced and thus ill-advised; and I’ll expand on that in Part Two of this post, in a few days.
The second reason Rivera was out on the streets was apparently due, from information I have developed so far, to a serious error by the Fall River Superior Court Probation Department: Just about 6 weeks ago, Rivera had been arrested in Hyannis on a Massachusetts OUI/DUI charge. This arrest instantly put Rivera in violation of the probation terms he was given when he was released last fall (2017) by judge McGuire in Fall River Superior Court, in the 2015 armed robbery/homicide case. Whenever a defendant violates probation, the Police Department making the arrest is required to notify the Probation Department of that arrest, and the Probation Department is then required to notify the relevant District Attorney’s office of that arrest and the resulting probation violation. From all presently apparent indications, the Probation Department never notified the Bristol County District Attorney’s Office of Rivera’s probation violation caused by his June OUI arrest in Hyannis. If the Probation Department had done what they were required to do, then the Bristol County DA’s Office could have immediately brought Rivera back into Fall River Superior Court on something called a “Probation Violation Hearing”, which would almost certainly have put him back behind bars. Apparently, due to this fatal oversight by the Probation Department, the DA’s office never had a chance to move quickly to put Rivera back in custody. If I later learn of facts indicating that I am wrong about any of this, I will promptly make corrections.
The third reason that Rivera was out on bail, involves another layer of errors, this last time involving both the Probation Department and the Cape & Islands District Attorney’s Office (often called the “Barnstable County DA’s Office”.) When he was arraigned in June in Barnstable District Court on the Hyannis OUI arrest, the prosecutor handling the arraignment was reportedly brand new – on the job only about one month. He reportedly did receive a report from the Fall River Probation Department that Rivera was on probation – but not any report that Rivera had violated his probation (again, due to the Probation Department’s error.) Apparently because of this lack of information, the inexperienced prosecutor did not ask that any bail be set on Rivera, but only asked the judge hearing the arraignment (judge Kathryn Hand) issue a bail warning, and more so did not oppose Rivera’s release on personal recognizance. Without any further incriminating or background information on Rivera, judge Hand released Rivera pending trial, with only a bail warning — and he was back on the streets. While release without bail is not uncommon for a first offense OUI charge, it should be noted that Rivera was released with only a bail warning even though the State Police report claims that Rivera failed multiple field sobriety tests, and that his chemical breath test revealed a blood alcohol level of .19 , more than twice the .08 legal limit. The Boston Globe covered this aspect of this tragic story, and on Monday of earlier this week, Cape and Islands District Attorney Michael O’Keefe acknowledged that that assistant DA assigned to the Rivera arraignment, handled the case improperly. As a Massachusetts criminal defense attorney, I feel that O’Keefe is to be admired for his candor; he could have gone in to “full defense” mode, and looked for excuses. I’m sure that he feels horrible about this whole story, along with everyone. What I haven’t heard yet, is any acceptance of responsibility from the Probation Department.
Thus, it seems there is a lot of blame to go around here, I’ll talk more about where I feel most of that blame lies, in Part Two of this Post, in a couple of days. In the meantime, let’s each of us send out some thoughts to the families of Kevin Burke and Jocelyn Goyette.