Appeals Court Vacates Convictions After Judge Fails to Confirm Defendant’s Self-Representation: Commonwealth v. Hempel (AC 19-P-63, August 12, 2026)

The Massachusetts Appeals Court vacated Jamie Hempel’s convictions for home invasion and assault with intent to murder, holding that the Superior Court judge violated Article 12 of the Massachusetts Declaration of Rights by allowing Hempel to represent himself for part of the trial without the required colloquy to ensure his waiver of counsel was knowing and intelligent.

Hempel was convicted after a jury trial in Barnstable Superior Court of home invasion, assault with the intent to murder, assault and battery by means of a dangerous weapon (an axe), and assault by means of a dangerous weapon. The case centered on a March 2015 attack in which Hempel kicked open the door to Susan Finn’s apartment while holding an axe and swung it at Finn and others inside.

Four Lawyers and a Standoff

Hempel had already cycled through three court-appointed lawyers before his fourth attorney was assigned. Two months before trial, he moved to dismiss that lawyer, citing a disagreement over trial strategy. The core issue: Hempel wanted to call witness Karen Doyle, but his attorney refused on ethical grounds. The lawyer believed Doyle would commit perjury if she testified.

The judge denied the motion to dismiss counsel but told Hempel he had the right to represent himself, in which case his lawyer would become standby counsel. At a subsequent hearing, the lawyer explained he faced an ethical issue under Massachusetts Rule of Professional Conduct 3.3(a)(3), which bars attorneys from knowingly offering false evidence.

The judge suggested using the procedure approved in Commonwealth v. Mitchell, which allows a defendant to deliver narrative testimony without the lawyer’s participation when counsel knows the defendant will testify falsely. The judge said the Mitchell approach might work for Hempel’s witness problem, though he acknowledged the case law provided no clear guidance for witness perjury as opposed to defendant perjury.

The Trial Begins

On the first day of trial, the judge asked Hempel whether he would represent himself or use his lawyer as counsel. Hempel said he assumed his lawyer would be standby counsel. The judge suggested Hempel’s attorney could represent him on all matters except calling Doyle.

The next morning, before jury selection, Hempel and his lawyer agreed to a division of labor: the lawyer would cross-examine the Commonwealth’s witnesses, Hempel would handle his own witness (Doyle) and testify if he chose, and the lawyer would deliver the closing argument.

Trial counsel delivered the opening statement and cross-examined the Commonwealth’s witnesses. During the defense case, counsel called and examined one witness. Hempel then called Doyle.

Doyle’s Testimony Backfires

Doyle testified that she waved Hempel into the apartment and that someone else attacked him with an axe. On cross-examination, the prosecutor confronted her with prior statements to police that directly contradicted her trial testimony. In those statements, Doyle had said Hempel was armed with an axe and a knife and was killing everyone. She had also described Hempel’s past violent conduct and threats against her, including that she had obtained a restraining order against him the morning of the attack.

After a lunch recess, Hempel asked to speak to the judge. He complained that he did not know the prosecutor would be allowed to read Doyle’s prior statements and said he did not want to talk to his lawyer anymore.

His lawyer then told the judge that Hempel intended to handle cross-examination of any rebuttal witnesses and present his own closing argument. Hempel confirmed he wanted his lawyer to stay on as standby counsel. The judge responded that if Hempel was taking over the case, he would handle rebuttal cross-examination and closing. The judge added he had no concern that Hempel suffered from any mental health condition that would preclude him from going forward.

At no point did the judge conduct a colloquy, ask questions, or give warnings to ensure Hempel’s decision to represent himself was knowing and intelligent.

What Article 12 Requires

Under Article 12, a defendant’s waiver of the right to counsel must be knowing and intelligent. The defendant must be adequately aware of the seriousness of the charges, the magnitude of the undertaking, the availability of advisory counsel, and the disadvantages of self-representation.

The judge must conduct a careful inquiry on the record, asking questions designed to establish that the defendant understands the implications of his choice. The court in Commonwealth v. Barros held that Article 12 always requires this inquiry, at any stage of a case.

Here, the judge made no such inquiry. He asked no questions and provided no information about the risks of self-representation when Hempel took over the case after Doyle’s cross-examination.

Mitchell Does Not Apply

The Commonwealth argued that the inquiry was not required because the case was controlled by Mitchell. The Appeals Court disagreed.

Mitchell involved a defendant who insisted on testifying despite his lawyer’s ethical obligation not to call him. The court held no colloquy was required when the defendant gave narrative testimony. But in Commonwealth v. Leiva, decided after Hempel’s trial, the Supreme Judicial Court clarified that Mitchell did not involve self-representation at all and did not implicate the right to counsel. The narrative testimony procedure is simply a rule-based limitation on direct examination by counsel, not a waiver of the right to counsel.

The judge here appeared to be trying to apply a modified Mitchell procedure to allow Hempel to call Doyle. But once Hempel took over the case for redirect examination and the remainder of trial, with his lawyer relegated to standby counsel, the full Article 12 inquiry was required.

The Record Cannot Save the Waiver

Although Article 12 always requires an on-the-record inquiry, the Appeals Court reviewed the record to determine whether it showed confidence that Hempel knowingly and intelligently waived his right to counsel. It did not.

The record does not show Hempel was adequately aware of the disadvantages of self-representation. While he understood the seriousness of the punishment he faced and had some familiarity with the criminal justice system, he did not know the elements of the offenses with which he was charged. At the charge conference, when the judge began to explain what Hempel could argue in closing, he stopped and asked whether Hempel had talked to his lawyer about the elements. Hempel said he had not.

Without confidence that Hempel understood the magnitude of the undertaking and the disadvantages of self-representation, his waiver of counsel lacked the required knowingness and intelligence.

Why It Matters

Violations of the right to counsel are structural errors not subject to harmless error analysis. The Appeals Court vacated Hempel’s convictions, set aside the verdicts, and remanded the case for a new trial should the Commonwealth choose to proceed.

The decision reaffirms that whenever a defendant waives the right to counsel and proceeds to self-representation, even if only for part of a trial, the judge must conduct the careful inquiry required by Article 12. No exception exists for situations involving ethical conflicts or modified Mitchell procedures. The bright-line rule applies: any waiver of counsel, whether full or partial, requires the same knowing and intelligent waiver.

Justice Brennan dissented, arguing that Hempel never truly represented himself. Instead, he and his lawyer operated throughout as cocounsel under a hybrid representation model described in Commonwealth v. Molino. Under this model, both the attorney and defendant may address the court and question witnesses. Because Hempel remained fully represented, Brennan wrote, no waiver of counsel was required. The dissent emphasized that the lawyer continued to participate substantially even after Doyle’s cross-examination, including at the charge conference and during the Commonwealth’s rebuttal case.

Read the full opinion: Commonwealth v. Hempel (AC-19-P-63, August 12, 2026).