The burden then shifts to the Commonwealth to justify the delay, either by showing that it falls within one of the "excluded periods" enumerated under rule 36 (b) (2) or by showing that "the defendant acquiesced in, was responsible for, or benefited from the delay." Commonwealth v. A defendant may establish a prima facie violation of rule 36 by demonstrating that more than twelve months have elapsed between arraignment and trial. 1503 (1996) (rule 36), provides that, if a criminal defendant is not tried "within twelve months" after arraignment, "he shall be entitled upon motion to a dismissal of the charges." Mass. Rule 36 of the Massachusetts Rules of Criminal Procedure, as amended, 422 Mass. Martin, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief. Patrick Levin, Committee for Public Counsel Services, for Kevin Graham, Jr. Sarah Montgomery Lewis, Assistant District Attorney (Masai-Maliek King, Assistant District Attorney, also present) for the Commonwealth. The Supreme Judicial Court granted applications for direct appellate review. Motions to dismiss were heard by Douglas H. INDICTMENTS found and returned in the Superior Court Department on June 10, 2016. In concluding that indictments against two defendants charged with murder should be dismissed with prejudice for failure to prosecute, a Superior Court judge exceeded the limits of his discretion where, in ruling that the dismissal would not result in a miscarriage of justice, the judge gave inadequate weight to the public interest in bringing to trial defendants who were charged with murder and to the fact that barely one year had passed since the defendants' arraignments where, in circumstances in which an essential witness was unwilling to testify, the judge could be expected to give the Commonwealth more time to locate the witness, and could diminish the prejudice to the defendants by releasing them on bail with appropriate conditions and where the judge may have relied to some extent on his erroneous conclusion that dismissal was required under Mass. 36 (b), where, even though the Commonwealth did not specifically argue for exclusions under rule 36 (b) (2) when it opposed the defendants' motions to dismiss, the Commonwealth did not waive its objection to the period between the trial date and a status conference date set by the trial judge, which, had it been properly named a continuance, would have been excludable under rule 36 (b) (2) (B) as a delay resulting from the unavailability of an essential witness or under rule 36 (b) (2) (F) as a continuance granted on the judge's findings that the ends of justice served by taking such action outweighed the best interests of the public and the defendants in a speedy trial and where the record revealed two occasions on which the defendants may have agreed to a continuance or delay. This court vacated a Superior Court judge's finding of a violation of the criminal defendants' right to a speedy trial under Mass. Practice, Criminal, Speedy trial, Dismissal. (8) SJC-12433 06 Appellant Commonwealth Reply BriefĬonstitutional Law, Speedy trial.(7) SJC-12433 05 Amicus MA Association Criminal Defense Lawyers Brief.(5) SJC-12433 01 Appellant Commonwealth Brief.(4) SJC-12428 07 Appellant Commonwealth Reply Brief.(3) SJC-12428 06 Amicus MA Association Criminal Defense Lawyers Brief.(1) SJC-12428 01 Appellant Commonwealth Brief.516 ApSeptemCourt Below: Superior Court, Suffolk County Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
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