BOSTON (State House News Service) - Peter Agnes, a Worcester Superior Court Judge nominated by Gov. Deval Patrick to a seat on the state Appeals Court, said Wednesday that when he issues a criminal sentence, he seeks to ensure that the defendant has an opportunity to earn parole because of evidence showing that parolees are less likely to commit new crimes than those released without supervision.
"Unless there is a request made by the defendant for a sentence that does not make the defendant eligible for parole, I always try to fashion a sentence that leaves open parole," he said during a three-hour confirmation hearing on his nomination before the Governor's Council, the eight-member elected body that could vote on his appointment as early as next week.
Agnes acknowledged that he had initially applied to a vacancy on the Supreme Judicial Court – and was among a handful of applicants recommended by a panel of lawyers that advises the governor – but that Gov. Patrick instead filled the seat with the appointment of Judge Barbara Lenk.
Agnes's nomination to the Appeals Court – the second-highest court in Massachusetts – encountered some turbulence from a handful of critics, but faced little pushback from members of the Governor's Council who appeared poised to support his nomination as early as next week.
Agnes, who was first appointed to Charlestown district court in 1991 by Gov. Michael Dukakis and was elevated to the Superior Court in 2000 by Gov. Paul Cellucci, faced fierce opposition from disgruntled litigants who leveled charges that he has ignored their legal motions for years in a conflict of interest suit. Agnes swatted back their claims, telling councilors that he questioned his critics' assertions and outright rejected claims of misconduct and cronyism that accompanied their complaint.
Councilors appeared unfazed by the accusations, which occasionally became heated, and one actually suggested that his response to the charges was a testament to his fitness for a higher court.
"The demeanor that you demonstrated today, even when other people weren't as reserved, is the exact demeanor that you exhibit every day in the courtroom, not matter what's going on," said Councilor Terrence Kennedy, a Lynnfield Democrat, who said he has known Agnes for 29 years. "The demeanor that you demonstrate in court is the model that other judges aspire to."
Councilor Jennie Caissie, an Oxford Republican, agreed, noting that Agnes had met with thousands of litigants in his tenure on the bench.
"The fact that two litigants showed up here in opposition speaks for itself," she said.
Councilor Charles Cipollini also praised Agnes's credentials and extracurricular activities while "dutifully serving in the courts." Councilor Marilyn Devaney, who presided over the hearing, has praised Agnes's qualifications, and Councilor Kelly Timilty, from whose district Agnes hails, did not attend his confirmation hearing, nor did Councilor Thomas Merrigan, a Greenfield Democrat.
Agnes said that he views the role of the Appeals Court as "limited" to working within the confines of facts identified by lower courts.
He told councilors he has presided over more than 1,000 bench trials and hundreds of civil and criminal jury trials in 21 years on the bench. Prior to his tenure as a judge, he worked as chief of operations for Gov. Michael Dukakis, as well as assistant secretary of public safety and assistant district attorney in Norfolk and Middlesex Counties. An adjunct professor at the Massachusetts School of Law, the Wayland resident is a Boston University graduate with a law degree from Suffolk University Law School.
Agnes described a ruling in which he determined that in criminal cases in which a defendant may have a mental impairment, grand juries should not be permitted to consider mental competence when deciding whether to support an indictment.
Agnes also said that he believes mandatory minimum sentences for criminal offenders are constitutional. But he described "a growing body of research that suggests that, at least for nonviolent offenders, such as drug abusers, there are more effective, less costly ways of addressing their problem than incarceration."
He noted that U.S. Sens. Orrin Hatch and Patrick Leahy – polar opposites in political philosophy – have worked together to change laws dealing with mandatory minimums.
Backers of Agnes's nomination described him as unafraid to make "tough calls" in the courtroom and fair to all who enter his courtroom, regardless of their background.
"Everyone who appears in his courtroom leaves there with a sense of confidence that our judicial system is working the way it should," said Joseph Early, Worcester County district attorney.
Agnes's other supporters included Worcester Superior Court Judge John McCann; Valerie Yarashus, past president of the Massachusetts Bar Association; court officer Leon Katchadorian; Joanne Herring, assistant clerk of the Worcester Superior Court; and Michael Coyne, associate dean of the Massachusetts
School of Law.
Quizzed by Caissie about his views on gun control, Agnes noted state and federal case law determining that there is a "personal" right to keep and bear arms, although he noted conflicts and controversy over the law's interpretation.
"We live in a society in which there is a great deal of violence and regrettably a great deal of that violence is committed with the use of firearms," he said.
Copyright State House News Service