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SJC Affirms Acquittal In Drunk Driving Case

Rarely does the prosecution have the right to appeal from a jury verdict.  However, in Commonwealth v. Dery, Slip Opinion December 23, 2008 it looks like the prosecution did just that – – and lost its case in the process. 

The defendant Zachary Dery was tried on September 13, 2007 for OUI and other traffic matters.  The impanelment process commenced and due to the parties striking prospective jurors the panel was reduced to 5 members.  The judge told the defendant that he could proceed with 5 jurors.  The defendant consented to trial in that manner freely and willingly.  No written waiver was filed and the prosecution never lodged an objection to this process.  The defendant’s gamble paid off and he was acquitted of the OUI charges.  

For some reason, not explained in the Court’s opinion the Commonwealth tried to have the case restored to the trial list claiming that 5 jurors cannot legally decide the case and that the defendant never signed a jury waiver in accordance with Massachusetts Rule of Criminal Procedure 19(b).  The trial judge refused to allow the prosecution to retry the case and an appeal followed. 

As to the constitutional argument, the Supreme Judicial Court held that a trial by a jury of less than six jurors survives constitutional scrutiny provided the defendant consents to this procedure.  Contrary to the position of the prosecution, a five person jury trial is not a nullity.  In another case also decided today that sentiment was explained.  See Commonwealth v. Nicoll, Slip Opinion December 23, 2008.  As to the failure to sign the jury waiver pursuant to Massachusetts Rule of Criminal Procedure 19(b) the Court held that the prosecution’s failure to object at the time of the waiver resulted in a forfeiture of its rights and that Rule 19(b) serves as a safeguard for the benefit of a criminal defendant.  In addition, in this case Rule 19(b) might not have been applicable in that jeopardy, which is a prerequisite for Rule 19(b) had not yet attached. 

Attorney Stephen Neyman is a Massachusetts Drunk Driving Defense Lawyer who has successfully represented the accused throughout Massachusetts and the United States.  Our office also handles Massachusetts Criminal Appeals on a regular basis.  Call or email us now to discuss your drunk driving case or any appellate matter.