Judge McCann's Superior Court session is 'breath of fresh air'

By Aubrey Gibavic - May 3, 2007

Up until last month, Superior Court Judge John S. McCann had never been further inland on the Island than the Vineyard harbors, where, as a young man and a tourist, he docked his boat. Sailing has fallen by the wayside, but the judge is now getting a full view of the Island - including its criminal landscape - by sitting on the bench for the spring Superior Court session at the Edgartown courthouse which began on April 17 and concludes tomorrow.

Last week, Judge McCann, who is based in Worcester County, sat down for an interview with The Times inside the Dukes County Courthouse and spoke about some of the issues facing judges across the state, including an increase in drug cases and mandatory sentencing guidelines.

"I never wanted to be [a presiding judge in one courthouse] and always preferred to be on the move," Judge McCann said. "There's an advantage to that because you get to see different cases and different lawyers and different ways of doing things."

Judge McCann, a graduate of the College of the Holy Cross in Worcester and Vanderbilt University School of Law in Nashville, Tenn., has been a Superior Court judge for seven years. He was on the District Court bench for seven years before that.

Judge McCann, who grew up in Worcester, says his varied experiences have helped to shape his judicial point of view. He attended law school in Tennessee during the height of the Civil Rights Movement, roomed with former San Francisco mayor Art Agnos in the late 1960s, and made several trips with his son to Guatemala in the 1990s to perform volunteer work.

"I didn't want to be provincial all my life," Judge McCann said. "I wanted to see something very different."

Current criminal trends

Judge McCann hails from a county that from a court perspective is virtually the opposite of Martha's Vineyard. Each judge in Worcester County handles approximately 1,800 civil cases a year, the clerk's office has a staff of 35 that administers this case load, and the county has nearly 800,000 residents.

But some current trends, such as teenagers using drugs and the legislature imposition of mandatory minimum sentences for certain crimes, have nothing to do with town lines or population figures.

"Drugs are insidious. I don't know how people are going to get a hold of that problem," Judge McCann said. "I think the electronic world makes all that so much easier...people deal with cell phones and the State Police can't keep up with the speed with which these people work."

Cases involving marijuana, cocaine, and heroin are becoming even more commonplace in the state. But a drug Judge McCann said he has little court experience with is methamphetamine, commonly known as "meth."

Made from readily available over-the-counter cold or allergy medicines, meth use has been spreading from the middle of the country towards New York and Canada in recent years. In November, Boston Police discovered a clandestine meth lab in the basement of a home in Brighton. The lab contained enough chemicals to provide tens of thousands of dollars worth of methamphetamines.

Actual cases involving meth users or dealers are still rare in the Commonwealth, Judge McCann said, but, by examining traditional drug routes and trends, the judicial system expects the problem to grow.

Another trend is the frequency of sex crimes, and how communities are responding to sex offenders living within their boundaries. Many convicted sex offenders are forced to register with the Massachusetts Sex Offender Registry Board (SORB). In response, Judge McCann said many towns are creating zoning bylaws that make it illegal for a registered sex offender to live within a certain distance of a school or playground. Although this idea may seem logical in theory, from a legal standpoint there could be many roadblocks, Judge McCann said.

"I certainly understand why people are concerned about people who have been convicted of sex crimes because they want to protect the community," Judge McCann said. "But you have to figure out where the fairness is. I think that will become problematic because I think those towns that do that...they're going to run into constitutional problems."

Mandatory minimum sentencing for certain crimes is another trend Judge McCann said can be problematic during sentencing.

"One of the most difficult parts of lawyering and judging is the sentencing phase because...to take somebody's liberty away is very significant," Judge McCann said. "Mandatory sentencing is becoming a favorite of the legislature. I don't agree with it because there are so many factors that you have to deal with in sentencing somebody to prison."

In sentencing, a judge needs to consider the history of the case, history of the offender, and availability of jail space, and mandatory minimums ignore those limiting considerations.

"I certainly respect what the legislature is trying to do, but I think they create more problems by doing it," Judge McCann said. "Because if the judge has the opportunity to exercise some discretion in sentencing when it's appropriate, that's taken away with mandatory sentencing."

Trying to coordinate off-Island lawyers and witnesses with on-Island criminals and trial dates has never been an issue in Worcester, Judge McCann said. But on Martha's Vineyard, it can become problematic, and hold up pending cases.

The O'Reilly factor

It was the sticky issue of mandatory minimum sentencing that put Judge McCann on the chopping block of one of television's most extreme political commentators. Bill O'Reilly, the controversial host of The O'Reilly Factor on the Fox News Channel, skewered Judge McCann and two others judges last year, when the judges gave what the talk show star thought were soft penalties to individuals convicted of sex crimes.

The case that put Judge McCann on Mr. O'Reilly's radar screen involved a man who had previously pled guilty and been convicted of 24 counts of indecent assault and battery on a child, and two counts of posing a child in nudity. The man served time in jail and upon release, failed to register as a sex offender in Roxbury, where he was living at the time.

He then moved to Florida, but was retrieved by the Massachusetts State Police for failure to register as a sex offender. The individual was brought before Judge McCann for sentencing for the probation violation.

According to a sentencing guideline for this particular crime, "if I gave him as much as one day, I had to give him 10 years [in jail]," Judge McCann said. "So I said, it doesn't make sense." Judge McCann placed the man on probation once more and required him to wear a tracking device.

Mr. O'Reilly attacked Judge McCann on the April 18, 2006 edition of The O'Reilly Factor. According to a transcript of the show, Mr. O'Reilly aired a photo of Judge McCann and suggested that McCann "sympathize[d]...with these child predators." O'Reilly continued to say that, "Massachusetts has no judicial accountability," and that "in Massachusetts, the kids are not being protected."

The Island assignment

Dukes County does not have a permanent Superior Court, so it does not have a presiding Superior Court judge. Instead, Barbara J. Rouse, Chief Justice of the Superior Court of Massachusetts, selects the judge who will travel to the Island and sit for each Superior Court session. A different judge is chosen for each sitting. Judge Judith Fabricant, a 10-year veteran of the Superior Court, sat for last fall's Superior Court session.

Judges who are asked to take a turn on Martha's Vineyard typically rent a house for the month or stay in a hotel. If the judge lives close by, he or she will sometimes make a daily commute.

Not everything on the Vineyard resembles patterns in the larger towns and cities of Massachusetts. Judge McCann said he was chatting with his wife last week and mentioned how strange it was to be "sitting as a Superior Court judge, and not having somebody brought in because there's been a shooting."

Although the Vineyard is a nice place to spend a few weeks in the spring, the judges don't have much free time to enjoy the Island. They work five days a week, and typically stay far past the courthouse's four pm closing hour.

Nevertheless, Judge McCann said, "I'm really glad to be down here. It does give you a breath of fresh air."