SJC hears challenge to prosecution of ex-state senator; defense cites legislative immunity, disputes grand juror excusal

BOSTON — In oral argument before the Supreme Judicial Court, defense attorney Michael Walsh asked justices to dismiss criminal charges against former state Sen. Dean Tran, arguing that legislative immunity and legislative privilege bar prosecutors from using acts or staff communications tied to legislative duties as evidence. Assistant Attorney General Tara Johnson told the court the motion judge should be affirmed and that Tran had not shown a meritorious claim of immunity.

Walsh, representing Tran, told the court “it is our first contention that this violates the general tenure of legislative immunity,” framing the defense around three themes: (1) legislative immunity, (2) legislative privilege for internal legislative communications, and (3) alleged misconduct by a grand juror. Walsh said the remedy, in his view, would have been to seek a formal opinion from the Senate or House ethics committee rather than rely on grand‑jury evidence: “the answer was to go to the House Ethics or the Senate Ethics Committee and get an opinion from them instead of bringing an indictment.”

Johnson, speaking for the Commonwealth, said the motion judge’s ruling should be upheld. “The motion judge’s decision should be affirmed because… Mr. Tran has not presented a meritorious claim of legislative immunity,” she told the court, arguing the alleged conduct falls within widely recognized campaign and conflict‑of‑interest statutes rather than protected legislative acts.

The parties described a layered enforcement history. The Senate Ethics Committee reviewed related campaign‑finance material and referred some matters to the Office of Campaign and Political Finance (OCPF); the State Ethics Commission issued a subpoena and later discontinued its separate case; OCPF had “three specific charges” in its report, and the matter then proceeded to a Suffolk Superior Court grand jury, which returned an indictment alleging violations of the conflict‑of‑interest statute (G.L. c. 268A), according to argument.

A second contested issue at argument was the prosecutor’s handling of a grand juror the prosecutor believed had an appearance of bias. Walsh and others urged that the prosecutor should have sought judicial review before excusing the juror; defense counsel sought dismissal of the indictments without prejudice on the ground that the excusal impaired the grand jury’s independence. The Commonwealth responded that prosecutors have a duty to preserve grand‑jury integrity and that the relevant remedy is to assess whether the excusal caused prejudice to the defendant. Johnson argued the record shows no such prejudice here and noted that the excusal occurred out of the presence of other grand jurors and the grand jury still returned an indictment after deliberation.

Justices pressed both sides on limits. Defense counsel repeatedly invoked historical authorities — including Coffin v. Coffin and other precedents — to urge a broad reading of legislative immunity in Massachusetts; Commonwealth counsel cited U.S. Supreme Court and federal precedent (for example, Brewster and Gravel) for the proposition that the speech‑and‑debate clause is not a shield against ordinary criminal prosecutions and emphasized the legislature’s ability to regulate conflicts via G.L. c. 268A. The bench also discussed practical safeguards — whether prosecutors must seek judicial sanction before excusing jurors and when dismissal is required — and whether a showing of prejudice is the correct legal test.

What happened next will be procedural. The court heard extended argument; no new ruling was issued from the bench during the session. The underlying criminal case remains pending in Suffolk Superior Court, and the SJC will decide whether to allow interlocutory review and, if so, whether any lower‑court ruling on the immunity motion must be reversed, affirmed or remanded for further proceedings.

The hearing focused on two narrow legal questions: whether the conflict‑of‑interest indictment rests on evidence that is truly legislative and therefore privileged, and whether the prosecutor’s single‑juror excusal — made outside the presence of other grand jurors — so impaired the grand jury that dismissal is required. The Commonwealth urged the court to apply a prejudice‑focused test and to affirm the motion judge; the defense urged a broader structural protection for legislative activity.

If the SJC accepts the defense’s broader reading of legislative immunity, the ruling could limit prosecutors’ ability to use certain staff communications or legislative‑office activity as evidence in corruption and campaign‑finance prosecutions. If the court instead upholds the motion judge and accepts a prejudice test for grand‑jury excusals, the case will return to the trial court to proceed toward trial on the indictment.

(Reporting from the SJC oral argument.)