SJC hears dispute over whether Bruen bars retrial in Commonwealth v. Zemenay

The Supreme Judicial Court of Massachusetts heard argument in Commonwealth v. Nathaniel Zemenay on whether the Commonwealth may retry Zemenay on a charge of carrying a firearm after the trial court did not receive evidence that the defendant lacked a license.

Defense counsel argued that United States v. Bruen changed the constitutional law governing public carry and therefore placed on the Commonwealth the burden to prove lack of licensure. “The constitutional prohibition against double jeopardy prohibits the Commonwealth from retrying Mr. Zemenay on the charge of carrying a firearm,” defense counsel told the court, saying the defendant’s trial occurred after Bruen but before the SJC’s interpretation in Guardado.

The defense pressed that the original trial suffered more than a garden-variety instructional error because the Commonwealth introduced no evidence to overcome the presumptive right Bruen recognized, and that insufficient evidence would ordinarily require dismissal rather than a new trial. “That is my argument,” defense counsel said in closing.

Assistant District Attorney Jamie Michael Charles, arguing for the Commonwealth, acknowledged a shift in federal precedent but said Bruen’s ruling arose in an administrative licensing context and did not directly resolve whether licensure is an element of the criminal offense under Massachusetts law. Charles told the court, “At the time of the defendant’s trial, this court’s precedent clearly had established that licensure was not an essential element.” The Commonwealth urged the court to remand for a new trial rather than bar retrial on double jeopardy grounds.

Argument focused on two interlocking questions: whether Bruen and subsequent SJC decisions (summarized in Guardado) placed the Commonwealth on sufficient notice before Zemenay’s trial that it needed to present evidence of lack of licensure, and whether the absence of that evidence constitutes insufficiency of proof that triggers double jeopardy dismissal or only a remedy of a new trial. Counsel and the justices discussed prior SJC authorities such as Gauss, Bookman, Jefferson and Winship and federal precedents bearing on when retroactive legal changes require dismissal rather than retrial.

Prosecutors told the court they found no controlling federal decisions directly on point and stressed that Massachusetts case law previously treated licensure as an exception or affirmative matter that trial courts routinely managed; the Commonwealth said it could reasonably have believed that presenting licensure evidence remained optional until the SJC clarified Guardado’s effect. The Commonwealth said its briefs concede a lack of evidence at trial but contend the proper remedy is remand for retrial, not a bar under double jeopardy.

The justices questioned both sides about timing (the trial was post-Bruen and pre-Guardado) and about whether Bruen’s broad language concerning presumptively protected conduct is sufficiently clear to change burdens in criminal prosecutions without a direct pronouncement applied to a criminal statute. Several justices probed whether the defense could have raised ineffective assistance or a contemporaneous instruction request at trial and how that would affect remedies.

No decision was announced at the argument. The parties asked the SJC either to dismiss the charge on double jeopardy grounds (defense) or to remand for a new trial so the Commonwealth can present evidence of lack of licensure (Commonwealth).

Background and context: Bruen is a U.S. Supreme Court decision addressing public-carry rights; Guardado is an SJC line of decisions interpreting Bruen’s effect for Massachusetts prosecutions. Counsel referenced other precedents (Heller, McDonald, Winship) during argument to frame burden-of-proof and notice questions. The Middlesex County prosecutors handling the case include Assistant District Attorneys Jamie Michael Charles and Timothy Ferriter. The SJC’s forthcoming opinion will resolve whether Bruen’s guidance, as interpreted by the SJC, requires dismissal or permits retrial when trial evidence of lack of licensure was not introduced.