Judges seek info in Kerns case

The Supreme Judicial Court wants to see a transcript of the trial of Tobin “Toby” Kerns before ruling on a request from the Plymouth County District Attorney’s office to intercede in the case of the teen accused of plotting a Columbine-style massacre while he was a student at Marshfield High School.

The SJC asked Assistant District Attorney Gail McKenna to submit the transcript into evidence during the Feb. 8 hearing in Boston after hearing arguments from McKenna and Kerns’ attorney William McElligott.

In court, McKenna argued that Juvenile Court Judge Louis Coffin erroneously wants to base his verdict on a statute different from the charge of threatening to use deadly weapons of which Kerns, 18, was indicted in October 2004. If Coffin rules based on a general threats statute, the prosecution must prove that the threat was targeted at a specific individual and was communicated to that individual.

“We want a properly instructed judge in accordance with the statute in front of him,” McKenna said.

Under Massachusetts General Law c.211, s.3, the SJC has authority over all lower courts to “prevent errors and abuses” that have a “severe and adverse impact on the administration of justice” in Massachusetts. The prosecution has no other recourse, as provided for in the statute, McKenna said, because the judge’s verdict cannot be appealed if Kerns is acquitted.

Chief Justice Margaret Marshall said it’s not clear whether Coffin made a ruling stating his intentions or not, although McKenna said his intentions are clear.

“I have to hear what the judge said,” Marshall said.

Marshall also questioned why McKenna didn’t do more to expedite a hearing before the SJC. A single justice, Justice Roderick Ireland, denied the district attorney’s petition and an appeal was made to the full court. The Kerns trial lasted five days and ended Oct. 20, 2006. Coffin has issued a stay and is withholding a verdict pending the appeal.

McElligott argued that the prosecution’s petition for relief is improper because there’s no ruling to go against. He said Coffin didn’t issue a ruling stating which threat charge he would use to base his verdict.

McElligott said Coffin ruled against his motion for a directed verdict on the threat charge, which was to Kerns’ disadvantage and to the prosecution’s advantage, and ruled against his motion for a directed verdict on a charge of conspiracy to commit murder, but did grant his motion to dismiss the charge of promotion of anarchy.

“There’s no real appealable issue here because there’s nothing to appeal,” McElligott said.

Asked by Marshall what reason Coffin gave for his ruling on the motion to dismiss the threat charge, McElligott said the judge gave no reason.

Marshall said the question for the defense if there is a conviction may be if the conviction based on the evidence or how the judge directed himself, and if there is an acquittal, the state won’t know why.

McElligott said he’s confident Coffin would explain his verdict in court.

The prosecution’s request has been taken under advisement, and the SJC is soliciting what are called “amicus briefs” from parties willing to enter points of law to assist the court with its decision. Briefs are due by March 12.

During the hearing, Justice John Greaney said he has concerns about disrupting a trial by filing an appeal. He said it’s becoming a more common occurrence in courtrooms.

“I have great reservations about what is going on,” he said.

McKenna was instructed to submit a brief within 14 days of the hearing explaining the extraordinary circumstance that is reason for the SJC to intervene in the case. McElligott will have the opportunity to submit a response. No further hearing date was set.

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