Coalition asks SJC to review quartet of pat frisk cases.

Byline: Kris Olson

The Supreme Judicial Court in recent years has gone to great lengths to adjust the lens through which police interactions with people of color should be viewed.

But the Appeals Court has not gotten the message, a coalition of criminal defense and community groups argue in a series of letters urging the SJC to grant further appellate review in four cases.

The cases all involve pat frisk searches of Black defendants that the Appeals Court found to be valid, despite justifications from police that arguably should have given the judges more pause, if they were faithful to SJC precedent.

The SJC has already granted review in one of the cases, Commonwealth v. Bailey-Sweeting, which is set to be argued on May 3.

The case bears at least a couple of the hallmarks of cases involving dubious pat frisks, according to the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, the New England Innocence Project, the Massachusetts Association of Criminal Defense Lawyers and others.

In Bailey-Sweeting, police initiated the search on a "hunch" and then escalated the encounter based on "stereotype-based assumptions and inferential leaps," the groups argue in their letter. Police also relied on the type of gang designation that often proves to be overbroad and unreliable, they say.

The question of whether to uphold the search in Bailey-Sweeting divided the Appeals Court. Two members of the original panel the now-retired Judge Diana Maldonado and Judge Sookyoung Shin would have invalidated the search. But they were outnumbered once Chief Justice Mark V. Green and Judge Ariane D. Vuono were added to the panel.

The same phenomenon occurred in the most recent case in which the SJC's review is being sought, Commonwealth v. Karen K., involving a 16-year-old juvenile stopped on the street and frisked based on a three-hour-old report of a youth with a gun.

The defendant walked away from the officers as they approached and moved her hand near her waist. The officers, drawing on "training and experience," interpreted that as evidence of gun possession.

This time, it was Judges James R. Milkey and Vickie L. Henry who found themselves in the minority after Green and Vuono joined the panel.

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"This is a profound moment for the rule of law in Massachusetts."

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In his dissent in Karen K., Milkey wrote about the "prosecutor's fallacy."

"The fact that people who suffer from an exotic disease are likely to exhibit a particular symptom (say, a fever) hardly means that someone observed to exhibit that symptom is likely to have that disease," Milkey wrote. "As generations of medical students learning to be diagnosticians have been taught, 'When you hear hoofbeats behind you, don't expect to see a zebra.'"

Milkey acknowledged that it...