Supreme Judicial Court Reduces Verdict After Review Under G.L. c. 278 Section 33E

Massachusetts General Laws Chapter 278 Section 33E permits
the Supreme Judicial Court to “(a) order a new trial or (b) direct the
entry of a verdict of a lesser degree of guilt, and remand the case to
the superior court for the imposition of sentence” in capital cases. 
The standard for doing so requires the Court to be “satisfied that the
verdict was against the law or the weight of the evidence, or because
of newly discovered evidence, or for any other reason that justice may
require”.  The statute is raised in virtually every appeal from first
degree murder convictions.  Challenges based on this statute rarely
succeed.  Just last week however the Supreme Judicial Court used its
powers pursuant to this statute and reduced a first degree murder
conviction to murder in the second degree.  This case is Commonwealth v. Colleran, SJC 09107.  See full opinion
This marks the first time that the Supreme Judicial Court has used G.L.
c. 278 Section 33E to reduce a verdict based on mental illness as a

Facts of the Case:

The facts of the case are riveting. 
They are paraphrased as follows.  In December 2001 the defendant and
her boyfriend lived in Sandwich with their 2 1/2 year old daughter.  On
December 17, 2001 at around 7:00 p.m. the defendant returned home after
work to prepare dinner.  She and her boyfriend were in the process of
trying to get the baby to sleep apart from them so they put her on the
couch to sleep.  The child woke up around 2:00 a.m. and the boyfriend
brought her into bed with them.  At 6:40 a.m. the boyfriend woke up to
the arrival of police officers.  Apparently the defendant had killed
the child and called 911. 

All accounts of the defendant’s behavior at that time were consistent.  She admitted the crime to her boyfriend stating that she “can’t
feel anymore’ and that had not “been normal.” Her expression was blank.
She showed no emotion and did not cry.  One of the responding police
officers was a family friend who knew the defendant.  The defendant
told him that she was going crazy.   The officer was “shocked by the
defendant’s appearance, because ‘[s]he looked like a skeleton.'”  She was unable to cry and she was expressionless.

The defendant’s confession was chilling.  She told
police that her baby woke up at about 6 A.M. on December 18, 2001.  She
fed her a bottle and put her on the couch.  The child fell asleep.  The
defendant then pushed her face into the couch.  The child cried.  The
defendant pushed harder so that her boyfriend would not hear her.  She
rolled the child “onto her back and noticed her
lips were blue. Thinking the child was brain damaged, the defendant
then choked her. The defendant said that during the incident she knew
she could get in trouble for doing it, but she was “feeling possessed,”
and wondered why she was doing it. She said she was unable to focus or
concentrate and her mind was constantly processing random thoughts. She
could not explain why she strangled the child. She said she was
severely depressed and just wanted to die. She thought if she killed
her child, someone would kill her. She was placed on suicide watch.”

all accounts, aside from this incident things at home were good for the
defendant.  The baby was good.  The defendant and her boyfriend had a
good relationship.  The couple had no financial problems.  There was no
history of child abuse.  The defendant was an overprotective mother. 
Neither drugs nor alcohol were an issue. 

Mental Health Issues:

The Court stated that
the defendant had been treated for depression in 1997. Her condition
improved with medication, but onn her own she stopped taking the
medication because it of they way it made her act. Her reaction to the
medication suggested an emerging bipolar, or manic-depressive disorder.
During the two or three weeks prior to the incident, the defendant
began behaving “different” and “strange.” She told her boyfriend that
she thought she was dying and that she felt like she were “dead.”  She
stopped eating and lost a considerable amount of weight.  She became
unable to sleep.  Three mental health experts testified on the
defendant’s behalf.  In essence, she was diagnosed as having suffered
from psychotic depression.  The prosecution did not rebut this evidence
with an expert of its own.

The Jury Verdict:

The jury convicted the
defendant of first degree murder under theories of deliberate
premeditation and extreme atrocity and cruelty. 

G.L. c. 278 Sec. 33E Review:

In reducing the verdict the Supreme Judicial Court held that this “incident reflects
spontaneity rather than premeditation”.  The mental health experts
agreed that this act was impulsive and not planned.  The defendant
suffered from a severe if not psychotic depression.  She was “emotionally
detached from her thought processes, and prone to acting illogically
and contrary to her own self interest”.  The Court also considered “personal
characteristics of the defendant in mitigation, such as the fact the
defendant was in a stable family relationship, and gainfully
employed”.  The Court concluded that in this case “verdict of murder in the second degree is more consonant with justice than a verdict of deliberately premeditated murder”. 

Our office has appealed
several first degree murder convictions.  Each time we request the
Supreme Judicial Court to use its discretion pursuant to G.L. c. 278
Sec. 33E  to reduce the verdict.  Virtually every criminal defense
lawyer handling first degree murder appeals does the same thing.  To
succeed under this statute it is necessary for the Court to find that
there exists a substantial likelihood of a miscarriage of justice.  The
infrequency in which this law is provides relief for defendants
suggests that the standard is a high one.  For a list of cases in which
the Supreme Judicial Court used its powers pursuant to G.L. c. 278 Sec.
33E please call our office.