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Section 33E Murder Appeals Must Have New and Substantial Evidence

By Robyn Hagan Cain on September 13, 2011 | Last updated on March 21, 2019

John Gomes Mendes was convicted in a Massachusetts court of the first degree murder of his wife, on a record that the First Circuit Court of Appeals described as "suggesting a motive to gain control of her small inheritance to pay for prostitutes and drugs." He sounds like a stand-up guy, right?

Mendes walked free, despite incriminating circumstantial evidence, for 13 years following the murder. He was indicted and prosecuted only after police learned of two witnesses to whom Mendes had admitted the killing.

At trial, the court considered the Mendes-admission testimony, the prostitutes, the drugs, and a note written by Mendes’ murdered wife stating that she was planning to move out. Mendes challenged his conviction based on the note, claiming his lawyer was ineffective because inadequately contested the note. (Personally, we would have been more upset about the hookers-and-blow evidence, but what do we know?)

After the state trial court denied Mendes’s direct appeal, Mendes began appealing his way up the judicial ladder, and quickly encountered a stumbling block: In Massachusetts capital murder cases, known as 33E cases, a single judge acts as gatekeeper to bar access to the full court on any issue that could have been raised at the time of direct appeal, unless the relief is sought on a basis that is both new and substantial.

In Mendes’s case, the gatekeeper judge denied leave to appeal because the claim was not new and substantial; Mendes could have raised his ineffective counsel claim on direct appeal.

Mendes appealed to the First Circuit Court of Appeals that the Commonwealth’s new and substantial gate rule is not well established, and that it was inapplicable in this case because the ineffective assistance claim rests on evidence that was neither in the trial record nor otherwise before the court on his direct appeal. On each point, the court found that Mendes’s position was unsound.

Specifically, the court noted that there was no merit in Mendes’s claim that the new and substantial rule should not have been applied in his case since his new trial request turned in part on evidence of his communications with trial counsel that could not have been raised sooner.

The court found that Section 33E authorizes filing a new trial motion in the Supreme Judicial Court while a direct appeal is lodged there, with opportunity to make a supplementary record to support it. Since Mendes had new counsel at that point, he could have raised his claim and made his record while the direct appeal was pending.

What does this mean for criminal practitioners in Massachusetts? In short, it is imperative that you raise every possible claim for relief on direct appeal, because only new and substantial appeals will make it past the judicial gatekeeper for subsequent Section 33E appeals.

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