Posts tagged "Bigelow"

Commonwealth v. Bigelow (Lawyers Weekly No. 10-153-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030;   SJC-11974   COMMONWEALTH  vs.  HARVEY J. BIGELOW.       Bristol.     January 8, 2016. – September 27, 2016.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[1]     Criminal Harassment.  Constitutional Law, Freedom of speech and press.  Practice, Criminal, Argument by prosecutor.       Complaint received and sworn to in the Taunton Division of the District Court Department on November 18, 2011.   The case was tried before Gregory L. Phillips, J.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Diana Cowhey McDermott for the defendant. David B. Mark, Assistant District Attorney, for the Commonwealth.     BOTSFORD, J.  In 2013, the defendant Harvey Bigelow was convicted of two counts of criminal harassment under G. L. c. 265, § 43A (§ 43A).  The charges were based on five letters the defendant allegedly wrote and sent to Michael Costello and Susan Costello[2] in 2011, following a local election in the town of Rehoboth (town) in which Michael had been elected as a town selectman.  We consider here the defendant’s appeal from these convictions; his principal claim is that both convictions must be reversed because the letters consisted of political speech — expressions of dissatisfaction with Michael’s performance as a selectman — that is constitutionally protected.  We reverse the defendant’s conviction of criminal harassment of Michael and order that count of the complaint dismissed; we vacate his conviction of criminal harassment of Susan, set aside the verdict, and remand for a new trial on the count of the  complaint relating to Susan. Background.  In April, 2011, Michael was elected as a selectman of the town.  Between May 9 and July 23, 2011, at approximately two-week intervals, the Costellos received five anonymous, type-written letters that were mailed to their home.  The letters were addressed to both Costellos or to Susan, and all were authored by the defendant.[3] The first letter, received around May 9, was sent to the Costellos in an envelope addressed to “Mr. and Mrs. Costello,” but the salutation in the letter itself mentioned only Michael.  Although the letter included a variety of personal insults directed to and at Michael, in significant part it consisted of statements criticizing Michael’s performance as a selectman, including, as its opening salvo, the following: “Michael Costello — The biggest fucking loser I […]


Posted by Massachusetts Legal Resources - September 27, 2016 at 4:56 pm

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