Opinion
21-P-469
06-17-2021
COMMONWEALTH v. Richard CALLAHAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant has appealed an order of the single justice (Hanlon, J.) denying the defendant's petition pursuant to G. L. c. 211, § 3. The petition requests the defendant's release from pretrial detention, which has been prolonged due to the COVID-19 pandemic and the resulting delay in holding jury trials. The defendant argues in the petition that his continued detention violates his due process rights and that the judge abused his discretion by failing to consider whether there were conditions of release that could reasonably assure the safety of the alleged victim. The single justice rejected the defendant's due process claim, relying on Commonwealth v. Lougee, 485 Mass. 70, 83-84 (2020), which held that COVID-19 delays had not yet reached the point of triggering a defendant's due process rights. After the single justice's decision and during the pendency of this appeal, the Supreme Judicial Court revisited Lougee’s holding in Mushwaalakbar v. Commonwealth, 487 Mass. 627, 628 (2021), and the Court stated that "in some cases the length of pretrial detention may have approached or exceeded the limits of constitutional due process." The decision allows defendants to "seek individualized review whether their pretrial detention violates due process by filing motions for reconsideration under [G. L. c. 276,] § 58A (4)." Id. Where the single justice in that case had relied on Lougee, the court ordered the underlying District Court order vacated and remanded the matter "for an immediate hearing" in the District Court. Id. at 638. In light of this new case, we vacate the single justice's order concluding that no due process violation occurred. A new order shall enter vacating the underlying order of the Superior Court denying the defendant's motion for reconsideration, and the case is remanded to the Hampden Superior Court for an immediate hearing at which the lawfulness of the defendant's continued detention, something with respect to which we express no opinion, shall be reconsidered in light of Mushwaalakbar. As in Mushwaalakbar, "[t]he defendant is free to supplement his motion with further argument consistent with" the Supreme Judicial Court's opinion in that case. Id. We need not and do not reach the defendant's other argument.
So ordered.
Vacated and remanded