COMMONWEALTH OF MASSACHUSETTS HAMPDEN, ss. SUPERIOR COURT CRIMINAL ACTION Nos. 85-5415, 5416, 5418, 5420, and 5425 COMMONWEALTH E. GEORGE D. PERROT MEMORANDUM AND ORDER ON BAIL It is the duty of this court to communicate clearly and fully how the law and the facts fuse together to produce this judgment on bail. The responsibility to explain a judgment is a constant duty for any judge. It assumes special signi?cance in a case such as this, one involving a long chain of events that presents important questions demanding explanation. gm First and foremost, this bail judgment derives from statutory and constitutional law that shapes and con?nes the parameters of the judgment on bail. In the Superior Court, a decision on bail is governed by G. L. c. 276, 57, as interpreted by the Supreme Judicial Court in A_inl? v. Commonwealth, 414 Mass. 667 (1993). In Aim, the Court struck from G. L. c. 276, 57 and 58, the 1992 amendments providing for preventative detention. The amendments were nulli?ed because the option of preventative detention lacked fundamental procedural protections and thus violated due process of law. To the degree a party to this proceeding has relied on the 1992 amendments, that reliance is misplaced. Let me be clear, this hearing is governed by Section 57 of Chapter 276, not Section 58A, which provides for preventative detention based on a ?nding of dangerousness. The law on bail, as expressed by Justice Spina in Querubin v. Commonwealth, 440 Mass. 108 (2003), allows the trial court to deny bail. It ?xes that decision to deny bail on the ?nding that the defendant?s admittance to bail will not reasonably assure his appearance. The law also allows for the trial court to set bail upon the defendant?s word that he will return to court. The decision to adopt either point of the continuum or something in between derives from the trial court?s ?ndings and the exercise of sound practical judgment and the application of common 861186. acts Before setting forth my findings relevant to the question of what order of bail will reasonably assure that George Perrot will appear when required to do so, I explain the degree of certainty that my ?ndings derive from. In setting out that benchmark, the court acknowledges its human fallibility. In many instances, a court lacks absolute con?dence in its ?ndings. Each material ?nding that I rely upon comes from a judgment that passes the test of high con?dence otherwise expressed as being reasonably sure. I ?rst address the evidence that George Perrot physically or sexually assaulted Mary Prekop on November 30, 1985. The record before the court, which I have subjected to rigorous examination, makes me reasonably sure that George Perrot did not commit those grave offenses. I am reasonably sure as well that between 3 and 4 A.M. on the morning of November 30, 1985, that George Perrot and another or others broke into Mary Prekop?s home causing her dog ?Scuffy? to bark. The barking caused the intruders to withdraw. A little later, one member of the group of intruders returned to Mary Prekop?s home, entered the house, and proceeded to beat, molest and rape Mary Prekop. Mary Prekop, a person of discriminating intellect, described repeatedly the man who physically and sexually assaulted her. She was certain that she was beaten, molested and raped by a man who was without any mustache, beard or goatee on his face. On November 30, 1985, George Perrot had a beard and mustache on his face. Mary Prekop refused to identify George Perrot at a lineup as the person who beat and raped her. At trial, Mary Prekop was shown George Perrot?s lineup photo and asked if that man had assaulted her; she replied, ?how can I say it when this man has a mustache and a beard.? As memorialized on page 3 of Superior Court Justice Lawrence Wernick?s memorandum granting the defendant a New Trial, inference and uncontroverted direct evidence [the defendant] had this facial hair on November 30.? It is noteworthy that in Judge Wernick?s care?il, detailed decision he found that when Assistant District Attorney Bloom used a forged confession to question Robert Timmerman, the prosecutor accused Timmerman, who was with Perrot on November 30, of ?taking part in the . . . Prekop case.? The court is also reasonably sure that its decision ordering a New Trial will withstand appellate review. In stating that the court is reasonably sure of the above ?ndings, the court relies on its Memorandum of Decision ordering a New Trial for George Perrot. A?Acknowledgments The court fully accepts that under our constitutional doctrines of separation of powers, the Of?ce of the Hampden County District Attorney has the right to seek appellate review of this court?s New Trial Orders and, if unsuccessful, to again prosecute the defendant for committing those crimes. Nor does this judge dispute that the Commonwealth has facts supporting imposition of a substantial bail. In 2003, when the Appeals Court reversed Judge Wernick?s New Trial Orders, the defendant ?ed to Maine. In 1986, the defendant while held in the Hampden County jail was found to have on two occasions attempted to smuggle a gun into the Jail to further a plan to escape, an escape that was thwarted. In 1988, he was found guilty for a 1987 escape attempt. On May 17, 1996, the defendant was found to have planned to escape in the Fall of 1995. All of those actions provide reasons to set bail at a signi?cant monetary amount. The Commonwealth also relies on the defendant?s chronic failure to comply with society?s laws and institutional rules as a basis for this court to set bail. I agree that there exists a logical and reasonable relationship between a failure to obey laws and rules and the risk that a defendant will fail to obey the duty to return to court when required. Accordingly, the court has examined the defendant?s history of compliance with society?s laws and the rules of the State Prison system. The defendant?s history as a juvenile re?ects a chronic de?ance of the law. He was on numerous occasions found to be delinquent for the crimes of breaking and entering at nighttime, breaking and entering in the daytime, as well as armed assault and acts of violence. As an adult, he continued to exhibit this attitude of indifference to the Rule of Law. I do note, that the juvenile and adult criminal records of George Perrot fail to show any ?nding of delinquency or guilt for any sexual crime. George Perrot?s history while in State Prison is clearly one of a refusal to obey institutional rules. His scores of infractions for verbal abuse, ?ghting and the illicit trade and use of narcotics depict an individual unwilling to accept authority and to comply with public regulations. It is to be noted that a January 5, 1988 disciplinary report sheds light on a source of George Perrot?s anger and alienation. On that date, in a menacing manner, the defendant loudly and profanely, told a correctional supervisor of his resistance to obeying rules, attributing the re?isal to a deep resentment for being forced to serve a life sentence for a crime he didn?t commit. It must be observed that serving a sentence for sexually assaulting an elderly woman can increase the threat of the defendant being harmed by older, larger inmates. See Generally Taylor v. Michigan Den?t of Corrections 69 F.3d 76, n. 35 (6th Cir. 1995) Charles Fried, Re?ection on Crime and Punishment, 30 Suffolk U. L. Rev. 681 (1971). State Prison records contain evidence that George Perrot was set upon by a group of inmates. The record fails to reveal the motivation for that attack. Such pieces of evidence present substantial questions on the motivation for the defendant?s aggression. In a prison culture, such aggression may serve as a measure to deter violence from those who prey on weakness. B?Response to Factors Favoring Bail Undoubtedly, the historical record contains reasonable grounds for doubting George Perrot?s willingness to obey a Bail Order. The record also contains strong reasons to have con?dence that George Perrot will comply. Bail in this Commonwealth is often established on the basis of the degree of likelihood that the defendant will be convicted and the consequent likelihood that a term of incarceration will follow the conviction . The court is reasonably sure that the Commonwealth?s case as presently understood will not secure a conviction. As previously stated, the court after a rigorous review of the entire record of this case, has come to be reasonably sure that George Perrot did not physically or sexually assault Mary Prekop. That ?nding bears heavily on the determination that the Commonwealth?s case will fail to secure a conviction. It also bears on the court?s deep skepticism that the Commonwealth?s case built on circumstantial evidence will even withstand review under a directed verdict standard. l-New Circumstances It may be the View of the Commonwealth that the defendant?s prior cycle of violating law and rules pre?gures his future violation of his word to return to court when required. I agree and disagree. While I agree that the past behavior of a human being provides evidence of certain tendencies, I know from experience that people who we call criminals can break out of expectations for a variety of reasons. At times, change comes from growing older and at other times it comes from becoming wiser. It may also come about when people help bring about that change. George Perrot has the good fortune to have many committed and talented people working for his success. That community of friends and advisors have assembled a strong support network for his successful transition, which will surely be demanding. Ultimately, it will be up to George Perrot. It is he who will need to prepare himself for the confounding dif?culties that lay in front of him. it is he who needs to develop the will and discipline to refrain from the call of impulse. The court presents one suggestion. For over two decades, the court has worked with a group of fellow professionals to help men and women meet the challenge of making the adjustment from jail or prison to probation. We believe that people in that situation need to clarify what they want from life. It is often, we believe, through reading stories about lives in crisis and talking about those characters caught in the web of struggle that we as humans can use our imagination to create a future that surprises and brings joy to those who support us and gives to us through the experience of struggling against temptations that haunt us a sense of dignity and a life of purpose built on notions of duty to others. C?Common Sense As previously remarked, a court in determining bail applies ?common sense? to the relevant ?ndings. A decision to establish bail upon George Perrot?s word to return when necessary to court satis?es the test of a decision honoring common sense. Legal and conventional sources call common sense ?a sound practical judgment.? It must be one drawn from the experience of mankind. v. M, 412 Mass. 172, 178 (1992). Using those sources of wisdom as applied to the facts before me. I determine that a bail of personal recognizance satis?es the test of common sense. Ill?Ma_ry Prekop It is only proper to point out that in coming to this judgment, the court thought about Mary Prekop. She was deeply wronged by the intrusions into her home and the violence done to her body and human dignity. George Perrot has spent almost 30 years in prison atoning for his resPonsibility for those wrongs. It was Mary Prekop who possessed the human integrity to refrain from joining the movement to say it was George Perrot who physically and sexually assaulted her. ORDER Based on the above and with consideration of all the ?lings and records, the Court sets bail at personal recognizance. As conditions, it orders George Perrot to comply with the following: (1) refrain from any possession or use of any unlawful drug with probation, where there is cause, entitled to test for the presence of illegal drugs; (2) refrain from any use of alcohol in any public space and to refrain for 6 month from using alcohol in his home; and (3) report to a probation officer two times every month. Robert J. Kanet?l Justice of the Superior Court DATED: February 10, 2016