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Does Remand Mean Retry?

You get convicted of murder, a life felony, at trial (boo!) You take your case on appeal (which, in Massachusetts skips the intermediary appellate court and scoots right on up to the Supreme Judicial Court, the highest court in the state). You lose there, too (also boo!) That might be the end of the line (unless you have issues to raise in a new trial motion – but we are keeping this intro basic).  You then have a choice if there is a “federal issue”: you can petition for a writ of habeas corpus in a trial level federal court raising any federal issues you have (since 1996, this has been all but impossible because Congress passed the AEDPA which is one of the absolute worst criminal laws ever passed in the history of the country and really, really needs to be overturned) or you can petition the Supreme Court of the United States for a writ of certiorari. Usually, these federal claims fail…but in your case, you win (yay!) The Court vacates the judgment (yay!) and “remands” your case to the state appellate court that ruled against you for reconsideration of that ruling in light of the Court’s ruling (what?)

Today’s schoolhouse rock on remand looks at the case of Commonwealth v. Bumpus, 362 Mass. 672 (1972). On July 9, 1970, a bank in downtown Boston was robbed at gunpoint. Several of the bank’ s employees were able to observe the thief. A bank vice president, Edward Grenier, heroically tackled the robber and tried to take his gun from him; the robber broke free and left the bank with $5900 (about $47,000 in today’s dollars) but oddly left a sneaker that he had been wearing. Just before he exited, he turned back to the terrified bank employees and fatally shot Mr. Grenier. Shortly after this event, a man hailed a cab near that bank and was dropped off near a housing project in another section of Boston. The man paid the cab fare and gave a very generous tip which he retrieved from a paper bag. As a memento, he left a sneaker (presumed to be the match to the one left in the bank) and a firearm in the cab.

Two weeks after the murder and robbery, eyewitnesses identified Mr. Bumpus through various identification procedures, his sister in law testified that on July 20, the defendant visited her in Canada in a brand new car, spoke about buying a house, and also mentioned robbing a bank. None of these issues is relevant to the remand. Here is that issue: at trial, Mr. Bumpus’ counsel asked for several voir dire questions to be presented to the jury venire as part of empanelment (translation: his lawyers asked the court to inquire certain questions of people prior to being selected or rejected for the deliberating jury. This is often done when there is a sensitive issue or an issue of concern to counsel for the purpose of weeding out biased jurors).


The requested voir dire questions all had to do with race – the defendant was black. The judge did ask whether the potential jurors they were sensible to any bias or prejudice they might harbor in the case. The issue of race was not specifically addressed, which the defendant argued was insufficient to ensure an unbiased jury. He wanted to ask:

‘Will you be influenced in any way, either pro or con, by the race of Robert Bumpus?’  

‘Would you be able to give a black man accused of robbery and murder the same benefit of the doubt that you would give to a white defendant?’

The trial court denied the request and the Supreme Judicial Court upheld that denial. Further, it pointed out that this issue had been decided in previous other cases, and not favorably to the defendant’s argument and the court saw no reason to second guess its prior ruling regarding voir dire requests. This, and all other issues, were insufficient for the court to vacate the convictions; it affirmed the life sentence for Mr. Bumpus.

So, Mr. Bumpus went to Washington! Well, not in person – by proxy. His lawyers requested that the Supreme Court of the United States hear the issue about race bias (in truth, they may have also asked other questions – the identification issues presented a federal issue as well). As it turns out, other criminal defendants at about the same time across the country were asking this very question – was it a due process violation under the 14th Amendment if a judge refuses to ask voir dire questions related to race when there is a concern that race could be a factor in the jury room? I did not read the briefs, but my guess is this is roughly how the question was presented to the Court. And the Court found this to be a very interesting question indeed. So, in a case with a much, much, much more sympathetic defendant facing a charge that was not even close to murder or bank robbery in a state that is not Massachusetts, the Court heard argument.

That case was Ham v. South Carolina, 409 U.S. 524 (1973). In that case, a young civil rights worker who was deeply involved in his community was convicted of possession of a tiny amount of cannabis and sentenced to 18 months in jail (which – whatever you want to say about other things like impossible to open child-proof tops and social media and climate change and a shocking increase in hate crimes and the dawning of autocracy all over the world – people in most of the country do not get sentenced to jail for possession of cannabis anymore which is progress). This happened in South Carolina where they – and by “they” I am referring to police officers - did not take too kindly to black people working to advance civil rights, especially not for such subversive organizations as the likes of the Southern Christian Leadership Conference. Ham believed he had been set up; he wanted to ensure an unbiased jury and sought to ask some race specific questions which was denied by the trial judge. The majority of the Supreme Court of South Carolina upheld that determination and then Mr. Ham, like Mr. Bumpus, asked the Supreme Court to review the issue.

Okay – I am not saying it is a great opinion – in part because it claims that generalized questions about bias would suffice to flush out race bias which they do not. But, the case was remanded because the trial court refused to ask any questions about bias at all, specifically racial bias, despite having been requested by trial counsel to do so. And, spoiler alert, subsequent cases have narrowed the ruling. But, what made it great for Mr. Bumpus was that the Court – without hearing a single word from his lawyers in oral argument – sent his case back on remand to the Supreme Judicial Court to review the voir dire issue in light of this ruling in Ham v. South Carolina. Hooray! Mr. Bumpus won! He most certainly would get a new trial! Hooray!

So, what happened in this case – not the possession of cannabis case, but the murdered bank vice president, armed robbery, leaving firearms in cabs, telling your sister in law that you robbed a bank as you chatted about buying a house from the seat of your brand new sports car case. New trial, right? Well… What the court said was the exact opposite.

In Ham, the court noted, the defendant was a local resident, well known in his community, and a civil rights worker. It hinted, and fairly so, that race bias could easily be a significant factor where the defense in that case was one of credibility – a white police officer as opposed to a black defendant whose defense was that he was framed. In Bumpus’s case, however, race was not really a factor. In fact, people who identified him almost universally recalled how handsome a man he was rather than his race. His conversation with his sister in law, witnesses in and near the housing project who saw him that day, the brand new car, the bag of cash, the firearm and sneakers left behind all created a body of evidence that the jury used to find the defendant guilty (and to spare him from the death penalty which was an actual thing in Massachusetts at the time).

So, what does it mean when a case is remanded? It depends. Sometimes it means the trial was indeed unfair and the defendant is entitled to a new trial. Sometimes it doesn’t.

I got curious about Mr. Ham – my hope was that he did get a new trial and he was acquitted and that he did great things in the civil rights movement in South Carolina. But, I found the opposite. There were later cases with his name in South Carolina in the same timeframe including a 1977 conviction for heroin for which he was sentenced to 15 years in prison. I also got curious about Mr. Bumpus. I have no idea if this is the same Robert T. Bumpus, but if it is, he is still alive – he has to be in his eighties – and is still a guest of the state here in Massachusetts.


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