Massachusetts high court order could free scores of criminal defendants

Flint McColgan, Boston Herald on Jul 3, 2025

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BOSTON — Massachusetts’ highest court has initiated an emergency protocol that could see many indigent criminal defendants in Middlesex and Suffolk county courts released from jail or even have their cases dropped.

The protocol is known as the Lavallee Protocol after a 2004 state case regarding a similar backlog of criminal defendants without representation as the state is experiencing now. That earlier case led to Thursday’s decision. It established time limits that a defendant could be held or have their case pending without legal representation.

Supreme Judicial Court Associate Justice Dalila Argaez Wendlandt wrote in her Thursday order that “the current numbers far exceed the totals of unrepresented indigent defendants, including defendants held in custody, that gave rise to the ultimate applications of the Lavallee protocol” in the original cases.

“This order imposes the Lavallee protocol on the Courts and provides conditions for the ongoing monitoring of the shortage of counsel,” Wendlandt wrote in her order.

The protocol, as Wendlandt describes it, allows for a defendant to be held in lieu of bail or under preventative detention for no more than seven days without a lawyer and that any defendant entitled to appointed counsel must not be forced to wait for more than 45 days for an attorney.

Wendlandt described a dire situation that she says is only getting worse since local bar advocates — who take on representation of indigent defendants in the courts — initialized a “work stoppage” in May.

She identified 587 unrepresented indigent defendants in the district courts of Middlesex County, at least 25 of whom were detained without representation, six of whom have been held longer than seven days. She identified 557 such defendants with cases in the Boston Municipal courts, with 36 in custody and a total of 21 Suffolk County detainees in custody for more than seven days.

Bar advocates stopped work in late May in an effort to increase their compensation rates, which are established by the state legislature and have not, Wendlandt wrote, “increased in years.”

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