Alumnus Named 2009 Massachusetts Lawyer of the Year
January 04, 2010
Russell Cory's profile does not invoke much sympathy. He was convicted of child rape in 1997, and after he left prison he violated his probation by failing to comply with treatment and counseling obligations. So few people could have objected when, in 2007, a judge ordered Cory to submit to GPS monitoring pursuant to a 2006 statute requiring that condition for all convicted sex offenders on probation.
But despite the relatively minor burden the law placed on Cory, the blare of talk-radio and cable-news bloodlust aimed at sex offenders and those who dare defend them, and the unspeakable horror of Cory's crime, Quincy attorney Theodore F. Riordan [Stonehill class of '87] had no reservations about handling Cory's appeal.
After all, the U.S. Constitution prohibits retroactive punishment. But the Commonwealth was subjecting Cory to a law passed more than 13 years after his crime, and Riordan recognized that serious constitutional issues were at stake.
"I felt that just as John Adams had to take unpopular clients, the role of the lawyer is to take any client who has legal needs," Riordan says. "The particular context in which constitutional issues come up - whether it's a sex case, an assault and battery or an OUI - doesn't really matter. Anybody who believes in the Constitution should feel it's important to take a case like this. "
The Supreme Judicial Court agreed. Though the Commonwealth argued that the statute in question, G.L.c. 265, §47, is a civil remedy not subject to the ex post facto clause, the SJC found that the provision operates in a punitive rather than regulatory manner, and thus retroactive application was unconstitutional.
As gratified as Riordan was by the court's decision, he was not surprised.
"I really did think I was on excellent legal grounds," he says.
Q. Your firm bills itself as a general litigation firm that specializes in personal-injury cases and business disputes. So how did you get involved in a case like Commonwealth v. Cory?
A. The criminal side of things for my practice is really the appellate work I do. I always had an interest in appellate work, both from law school and from working in the Rhode Island Supreme Court [as a law clerk]. And I think it's important to have a diverse, well-rounded caseload. If you handle just one kind of subject matter, it can get dry.
As for this case, I do work for CPCS on the appeals side and that's how I got this one. I'm on their appellate list. I've also done criminal trial work but wasn't the trial counsel in this case.
Q. What was the most significant challenge you faced in handling this case, and how did you overcome it?
A. Well, it's always hard to overturn a statute. That's an extremely tough challenge. And in this case my brief relied almost exclusively on U.S. Supreme Court precedent. It's a big task to convince a court to strike down a statute based on constitutional grounds, an uphill battle for any lawyer. So I read cases very carefully to make sure I was reading them right. And I ran them by other lawyers to make sure they agreed that I was on the right track. You need to make sure you are confident that you have a correct read on the cases. And if you do, you should stick with it notwithstanding any arguments that might be made by the other side.
Q. Critics contend that the SJC's ruling could result in countless sex offenders being released from GPS monitoring, putting their communities at risk. In fact, shortly after the decision was handed down, a judge in Lowell refused to subject another child rapist to his GPS monitoring obligation, citing the ruling on Cory. Do you feel any misgivings about your case when you hear about these sorts of consequences?
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