When defendants come into court to be arraigned, they sometimes draw a hoodie over their head, cover their face with their hands, or even hold up their charging documents, making a wall between themselves and the rest of the courtroom.
But, occasionally, they hide behind actual walls, completely out of view from the public, cameras and journalists in the gallery, and judges allow it for a specific, legal reason: to prevent witnesses from mistakenly identifying suspects because they’ve seen them on the news.
Last week, when Kervens Boutin was arraigned on charges related to an alleged spree of indecent assaults in Winthrop, people in the courtroom couldn’t see him.
Even East Boston District Court Judge Debra DelVecchio mistakenly thought Boutin was in the courtroom and had just started the proceedings when a court officer told her the defendant wasn’t present yet and was still coming up the stairs.
It was a few quiet responses from Boutin and the sounds of his shackles clanking together that offered proof he was in the room.
While the prosecutor described how Boutin allegedly twice pulled down a woman’s pants on Winthrop Street — leaving her stricken and her three year old in a carriage in the middle of the road — a person who attended the hearing to support the victim stood up and tried to get a look at Boutin behind the wall.
Boutin’s court-appointed Alexander Mintz had raised an identity issue and requested that his client stay out of view. DelVecchio allowed it.
Defense attorneys make motions like this at first appearances often, and when a judge issues their decision during the quick pace of an arraignment, they don’t always explain their reasoning.
Retired Superior Court Judge Jack Lu explained that when attorneys make these requests, they let judges know that they may contest the identification of their client as the suspect.
“And that broadcasting the defendant’s face before any identification procedure could taint every witness who later picks him out,” Lu said.
Sometimes that claim could be thin, he noted, giving an example of a victim who knows the defendant well, and the media can challenge the request.
“Though in a District Court arraignment, that is hard because the proceedings move fast and the request is usually made and granted at the sidebar in under a minute,” Lu told the Herald.
The judge might not have all the facts in that moment, but Lu said, “faced with that uncertainty, it is legally dangerous for an arraignment judge to deny the request, because the cost of being wrong is a compromised identification, while the cost of granting it is a delayed photograph.”
He cited Supreme Judicial Court Rule 1:19, which gives a judge discretion to limit coverage when it creates, “a substantial likelihood of harm to any person or other serious harmful consequence.”
Other examples of defendants being allowed to remain out of view for arraignment include: 16-year-old Jacob Donis, accused of shooting and killing a woman at a bus stop in Roxbury, and North End restaurateur Patrick Mendoza, who pleaded guilty to shooting at Modern Pastry.
But sometimes, judges don’t side with the defense. At an arraignment last month for Paul Morey, a Salem man accused of brutally killing his girlfriend, his attorney requested that he remain out of view because of identity issues.
However, the judge denied the request, saying that Morey had already appeared in a separate fugitive proceeding in New Hampshire.
Defense attorney Joseph Krowski said the requests are “typical for cases where identity is a live issue.”
The state trial court doesn’t have data on how common the motions are or how often they’re successful, according to a spokesperson for the court, but Krowski said they’re fairly common.
He called misidentifications, “probably the biggest producers of wrongful convictions.”
Allowing a defendant to remain behind a wall or a door and out of sight prevents, “mistaken but good faith identifications,” from witnesses and victims, Krowski said, adding that there have been many cases where a witness to a crime saw the accused person in the newspaper and “mistakenly adopted that idea.”
“Court really is about the defendant’s rights,” Krowski said. When there’s any concern that the defendant being arraigned might not be the right person, he said, “better to be safer now than sorry later.”
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