BOSTON, March 12, 2015—The state’s highest court this week rejected a claim by a domestic violence murder defendant who sought financial reimbursement from prosecutors for legal fees he was never charged by attorneys who agreed to work for free, Suffolk County District Attorney Daniel F. Conley said.

SHABAZZ AUGUSTINE (D.O.B. 2/19/79) is charged with first-degree murder in the homicide of his former romantic partner, 26-year-old Julaine Jules of Malden. In 2004, during the probe into that homicide, State troopers obtained cell tower records associated with his phone under the prevailing law at the time, which required only a court order and not a search warrant.

In 2012, Augustine moved to keep the jurors who would hear his case from seeing those records, claiming that investigators should have used a search warrant to obtain them. A Suffolk Superior Court judge allowed that motion and Suffolk prosecutors appealed her decision to the Supreme Judicial Court. As a result, the SJC created a new rule that cell tower records must now be obtained through a search warrant, but vacated the judge’s decision and allowed prosecutors the opportunity to prove that the detailed affidavit filed for the 2004 court order would have supported one.

Though Augustine was represented at no cost in the murder case by experienced trial and appellate attorneys appointed by the Committee for Public Counsel Services, he entered into an agreement with attorneys Matthew Segal and Jessie Rossman of the American Civil Liberties Union to represent him, also at no cost, for the argument before the SJC.

“The circumstances by which Mr. Segal and Ms. Rossman came to represent the defendant, and the reasons why [Augustine’s CPCS-appointed appellate attorney] withdrew, are not clear from the materials that are before us,” Justice Margot Botsford wrote in a 13-page decision released yesterday. “What is clear and undisputed, however, is that Mr. Segal and Ms. Rossman never intended to charge, and in fact did not charge, the defendant any fee for their services. Mr. Segal expressly acknowledges in his affidavit that their agreement was to represent the defendant ‘at no cost to him.’”

Despite this agreement, Augustine and the ACLU sought fees of $12,000 for the ACLU’s services on his behalf under Rule 15(d) of the Massachusetts Rules of Criminal Procedure, which mandates that prosecutors pay the costs of such appeals for defendants who hire private attorneys, regardless of who pursues the appeal and regardless of whether they win or lose – a burden no other party in a courtroom must bear. Prosecutors opposed that claim and the SJC denied it.

“Being indigent, the defendant was entitled to receive, and did receive, appointed counsel to represent him in both the trial court and on appeal at no expense to him,” Botsford wrote. “He also was entitled to discharge his appointed counsel and retain private counsel on such terms as he was able, which he did. What he is not entitled to, however, is to have the Commonwealth pay him for private counsel fees that he did not actually incur and was not legally obligated to pay.”

Prosecutors hailed the decision but still criticized the rule that gave rise to it.

“The unfairness inherent in Rule 15(d) is that it imposes a financial burden for exercising the constitutional right to appeal a judicial error,” Conley said. “That unfairness is compounded by imposing this burden only on publicly-funded prosecutors and only to the benefit of private lawyers: it takes money from taxpayers and gives it to attorneys whose clients are wealthy enough to afford their rates. But even that unfairness pales in comparison to the claim here that the Commonwealth should pay $12,000 in legal fees to private attorneys who agreed to work for free. Notwithstanding this decision, the SJC and Legislature need to reconsider this rule in favor of one that sets a level playing field for all parties – defendants, their lawyers, prosecutors, and the public.”

Assistant District Attorney Cailin Campbell of the DA’s Appellate Division wrote the brief upon which the SJC decided the case.

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All defendants are presumed innocent until and unless proven guilty beyond a reasonable doubt.