What proof must a former convict offer at summary judgment to establish that his exoneration qualifies him to sue the Commonwealth for erroneous felony conviction, pursuant to G.L. c. 258D, § 1?

The plaintiff, Shawn Drumgold, was convicted of a gang-related murder on the testimony of a number of witnesses who claimed to have seen him planning for or en route to and from the shooting. Fourteen years later, a judge vacated Drumgold’s conviction and granted a new trial.

Drumgold had moved for new trial on the basis of three witness recantations, and allegedly newly-discovered evidence that another person had committed the murder and that Drumgold had an alibi.  The Commonwealth had also moved for new trial, on the basis that one witness had mental issues, and another had ties to police, neither of which had been disclosed to Drumgold for cross-examination.  The judge granted the Commonwealth’s motion, emphasizing that she was not making a finding as to Drumgold’s specific grounds for relief, or as to his actual innocence or guilt.

Drumgold sued the Commonwealth pursuant to G.L. c. 258D, § 1, which waives sovereign immunity for incarcerated persons “who have been granted judicial relief … on grounds which tend to establish the innocence of the individual.”  A second judge declined to grant the Commonwealth summary judgment on the basis of sovereign immunity, ruling that there was a material issue of fact as to whether Drumgold’s relief “tend[ed] to establish” his innocence.

The Commonwealth pursued an interlocutory appeal, and the SJC granted direct appellate review.

The central issue of the case is what evidence “tend[s] to establish” innocence, and thus permits the plaintiff to proceed to trial. This is wholly separate from the plaintiff’s burden at trial, which will require him to prove actual innocence by clear and convincing evidence.  G.L. c. 258D, § 1(C)(vi).

The judge relied on the recent case of Guzman v. Commonwealth, 74 Mass. App. Ct. 466 (2009), which will be argued alongside this case as SJC-10563. In Guzman, the Appeals Court interpreted “tend to establish” to mean “probative of the proposition that the claimant did not commit the crime” — in other words, the plaintiff need merely show that the evidence improperly included or excluded at trial would have been relevant to the jury’s evaluation of guilt.

The Commonwealth argues that: (1) Drumgold did not meet the Guzman standard, because the grounds relied on by the new trial judge were related to procedural fairness rather than substantive innocence; and (2) the Guzman standard itself is overbroad, failing to achieve the gatekeeping role intended by the legislature.

The Commonwealth’s proposed distinction between procedural and substantive grounds for new trial is not persuasive, at least in this case.  The new trial was granted because the Commonwealth failed to disclose viable grounds for cross-examination of witnesses. The reason nondisclosure was “procedurally unfair” was that it affected the jury’s perception of Drumgold’s actual innocence. There may be cases where a person is released from incarceration on grounds unrelated to innocence — such as evidence obtained by an unconstitutional search — but this is not one.

The challenge to Guzman itself is more interesting. The central question is whether the judge should evaluate the weight of the plaintiff’s evidence at summary judgment, when he or she decides whether the basis for overturning the conviction “tend[s] to establish” innocence. The court in Guzman put the emphasis on “tend,” holding that the contested evidence must affect the balance in the question of the defendant’s guilt, but not actually tip the scale. The Commonwealth would put the emphasis on “establish,” and require the contested evidence to tip the scale and establish the defendant’s innocence.

This question is essentially a matter of policy — should the Court favor the policy that waivers of sovereign immunity are construed narrowly, or the policy that issues of fact are not decided at summary judgment? I am inclined to think that the Guzman approach is more workable, and the question of whether evidence establishes innocence is better left for trial. If the Legislature had intended the plaintiff to first prove innocence to one standard before the judge, and then to a higher standard before the jury, it would have spelled out that procedure.