Convicted of a crime that wasn’t a crime: a story of perseverance and how unpredictable the law can be.

27 March 2020

In Commonwealth v. Mansur the defendant was charged with a few crimes, one being possession of an open container of alcohol in a motor vehicle.  Defense counsel objected to the charge and argued it was just a civil infraction and not a crime.  The judge rejected the argument, relied on precedent, and the prosecution went forward and proved the elements to the satisfaction of the jury.  The law that the judge relied on to reject the defendant’s argument was clearly stated.  It was from the Supreme Judicial Court, the top court in Massachusetts and specifically stated “possession of an open container of alcohol in a motor vehicle is a misdemeanor.”   Commonwealth v. Johnson, 461 Mass. 44, 50 fn. 7 (2011).

The defendant was only found guilty of the open container charge and it is likely did not incur a drastic sentence.  But he would still be deemed a “criminal” and would have to say “yes” when asked if he had ever been convicted of a crime for the rest of his life.

However, the story goes on, the defendant appealed, and the case was decided by the SJC.  Understand, the question was not what is usually at issue, whether the defendant was properly found to have committed the act, but rather whether the act was indeed a crime at all.  A layman, or even a lawyer, would almost assume the question of whether the act was a crime is too straight forward to be in question, but here it was.

The SJC, after careful analysis, found the charge was not a charge at all, but a civil infraction.  484 Mass. 172 (2020).   In doing so, it overruled “a narrower interpretation of the same statutory language articulated” in a prior case, and obviously impliedly overruled the case the trial court relied on, Commonwealth v. Johnson.  The SJC determined that the statement the trial court relied on in Commonwealth v. Johnson was dicta, which means it was not at issue in the case and thus the statement not establish legal precedent when it was made.

Can you imagine just how slim the odds were for the defendant to obtain victory?

Just think of the stick-to-itiveness of the defendant.  In all reality, one would risk being sanctioned for filing a frivolous appeal when attempting to have, not just one, but two very plainly worded, unquestioned decisions from the top court in the state stating essentially the opposite.  Yes, one was determined to be dicta, however, it still takes courage to directly challenge dicta from the top court in the state and it would still be unlikely a court would decide differently from what they stated before, despite the fact the issue was not being squarely decided at the time.

In the end, the trial judge, the prosecution, (and the jury arguably) were incorrect over the basic fact of whether violation of that particular law was a crime.  Just think of how many people had been convicted of this over the years, now we know, incorrectly.  It is just one example of how unpredictable the law is and how in some circumstances, what may appear to be established law isn’t all that established but is ready to be overruled if one can persevere.