Forlizzi, et al. v. Commonwealth (Lawyers Weekly No. 10-070-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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; SJCReporter@sjc.state.ma.us SJC-11746 DAVID FORLIZZI & another[1] vs. COMMONWEALTH. April 28, 2015. Supreme Judicial Court, Superintendence of inferior courts. Practice, Criminal, Interlocutory appeal. David Forlizzi and Fred Battista appeal from a judgment of a single justice of this court denying their petition pursuant to G. L. c. 211, § 3. The petition sought relief from the orders of a Superior Court judge denying their motions to dismiss indictments and from the judge’s decision not to conduct an evidentiary hearing on their motions. The single justice denied the petition. We affirm. Background. Forlizzi has been indicted on charges of obstruction of justice, in violation of G. L. c. 268, § 13B; three counts of corruption of a witness, in violation of G. L. c. 268A, § 2 (c); three counts of subornation of perjury, in violation of G. L. c. 268, § 2; and multiple counts of conspiracy to violate those same laws, G. L. c. 274, § 7. He also has been indicted as a habitual offender, in violation of G. L. c. 279, § 25. Battista faces similar charges. These indictments arise out of the petitioners’ alleged misconduct in connection with a prior trial involving alleged insurance fraud. In the Superior Court, Forlizzi (joined by Battista) moved to dismiss the indictments, alleging that, during the investigation leading to the indictments, the Commonwealth had engaged in prosecutorial misconduct. They claimed that the Commonwealth caused the grand jury to subpoena the bank records of trial counsel in violation of Mass. R. Prof. C. 3.8 (f), 426 Mass. 1397 (1998), and that the Attorney General improperly obtained counsels’ tax records though the insurance fraud bureau. A Superior Court judge denied the motion, concluding that the proscription of rule 3.8 (f) does not apply to third-party record holders such as banking institutions, but that the mechanism used by the prosecutors to obtain the attorneys’ tax records constituted overreaching. The judge determined, however, that dismissal of the indictments as a sanction was not warranted in the circumstances. Forlizzi thereafter filed a second motion to dismiss, which also was denied. The judge reasoned that Forlizzi “has not demonstrated that the Commonwealth engaged in conduct designed to interfere with [his] . . . right [under the Sixth Amendment to the United States Constitution] to counsel of choice, nor has he persuaded the [c]ourt that an evidentiary hearing would likely produce evidence to establish his claim.” […]