Dear Attorney Erkan,
It is extremely rare for me, as District Attorney, to engage with defense counsel outside of the courtroom. But your letter of December 1, 2021, suggesting that the prosecution of the case was motivated by the race of your client, Ernst Jean-Jacques, directly impugns the integrity of a member of my staff and the integrity of this Office, and compels me to respond.
Aside from its overheated rhetoric, your letter contains outrageous and baseless accusations and several significant omissions and outright mischaracterizations that require correction.
First, your attack on the individual member of my staff who handled the prosecution is unfounded and scurrilous. This prosecutor enjoys a reputation among her peers for integrity and fairness and has never been the subject of bar discipline of any kind.
All of her decisions in this case were wholly in keeping with the law and facts and were made with the full approval and support of her supervisors. Her involvement in the case has led to online harassment and a death threat against her. She has needed a police escort to court appearances.
Your “open letter” is a contemptible effort to fan those flames.
Second, you mention the independent administrative review of the Swampscott Police investigation commissioned by the Town of Swampscott, but omit altogether its ultimate finding with respect to your claim of racial bias.
As you know but fail to state, the independent review ultimately found that:
[T]here is no evidence to support the allegation that the Swampscott Police Department’s investigation and subsequent Dec. 12, 2020 arrest of Ernst Jean-Jacques was biased or influenced by Mr. Jacques race, age, gender, or apparent political affiliation.
You also fail to state that, as to the decision not to charge Ms. Greenberg for splashing the water, the review concluded: Factors such as Mr. Jacques being the “predominant aggressor” as well as the “proportionality” of his response to Linda Greenberg’s actions, were determining factors in the Swampscott Police Department’s discretionary decision not to bring forth charges, but to treat Ms. Greenberg as a victim of a felony assault. This decision was within their purview as an investigating agency.
These common sense conclusions were drawn from a broad-based, independent review of all the facts of the case and a close review of all video captured of the incident, including the purportedly exonerative video submitted by you.
To be sure, this Office in no way endorses the splashing of water on persons engaged in lawful protest. But for a young man to then scan to the right, reach over the barrier separating them, and forcibly strike the obviously elderly 81-year-old woman who did so, rather than simply walk away and alert nearby police, is not a valid exercise of self-defense. Rather, it is retaliation that endangered an elderly person, which the law does not permit. The applicable jury instruction on self-defense makes this basic point of law abundantly clear:
A person cannot lawfully act in self-defense when one uses force in retaliation. The right to self-defense arises from necessity and ends when the necessity ends.
The Commonwealth may prove the defendant did not act in self-defense by proving beyond a reasonable doubt that the defendant was no longer in any immediate danger and was just pursuing his (her) attacker for revenge or to ward off any possibility of attack in the indefinite future.
Criminal Model Jury Instructions for use in the District Court, Instruction 9.260 (Revised November 2021). And, contrary to your suggestion, an assault and battery is committed regardless of whether your client used a closed fist, as initially believed by an arresting officer, or an open hand as you contend.
As you are aware, an independent magistrate determined the charge against your client, felony assault and battery on a person over 60, was supported by probable cause.
Indeed, if you sincerely believed the prosecution was not driven by these facts, but rather by your client’s race, there was a ready means to advance such a claim: by filing a motion to dismiss claiming selective prosecution based upon the equal protection clauses of the federal and state constitutions.
That you never filed such a motion in this case is a tacit but clear acknowledgment that the claim of racial bias is baseless, as the independent review concluded. Your effort to make this groundless claim in the press and social media rather than in court, where it must actually be proven, speaks volumes.
To be clear, on the morning of trial, Ms. Greenberg was, as far as this Office was aware, prepared to testify. That morning, it was revealed for the first time that a citizen-initiated criminal complaint, filed by Mr. Jean-Jacques against Ms. Greenberg for the water splashing, had just been issued the day prior.
Ms. Greenberg’s attorney was contacted and appeared via Zoom. The prosecutor alerted the Court that her attorney was likely unaware that a complaint was issued against his client, and he may need an opportunity to speak with her. The judge called a recess, and the prosecutor left the courtroom.
Ms. Greenberg never formally invoked her right on the record and neither Ms. Greenberg nor her attorney ever advised this Office prior to the decision to nol pros the case that it was her intention to do so.
Your suggestions that she in fact invoked her Fifth, and that this was the reason the commonwealth discontinued the prosecution against Mr. Jean-Jacques, are both incorrect. The reasons for the decision to nol pros the case are set forth in the nol pros itself, pursuant to Mass. R. Crim. P. 16.
The ultimate decisions to discontinue the prosecutions of both Mr. Jean-Jacques and Ms. Greenberg were within the exclusive discretion of the prosecuting authority. The decisions were based on all relevant facts, including certain rulings of the judge on the morning of trial, and were, in my view, in the public interest.
It is hoped that, in the future, political protests in Essex County will remain as they largely have been – peaceful.
In the meantime, my staff will continue to maintain the highest standards of integrity, and to pursue justice, without fear, based on individual facts, regardless of race, ethnicity, gender, creed, political affiliation, national origin, disability, sexual orientation, or any other similar factor.
As did the prosecutor in this case, we will continue to pursue the ideal of prosecutor as “minister of justice,” Mass. R. Prof. C. 3.8 (Comment), who, in Justice Robert Jackson’s words, “temper zeal with human kindness, seek truth and not victims, serve the law and not factional purposes, and approach their task with humility.”
Sincerely,
Jonathan W. Blodgett
District Attorney
