Pages

Thursday, May 31, 2012

Birks v. Green


 Supreme Judicial Court of Massachusetts – May 31, 2012

*Rescript

Facts: Birks was convicted of murder in the first degree and illegal possession of a firearm. Birks appealed from a judgment of a single justice of the court denying his petition for a writ of mandamus. Birks filed a motion in the trial court seeking appointment of a new counsel to prepare another motion for a new trial. The judge denied the motion. Birks then filed a petition of mandamus in the trail court asking the court to order trial counsel to answer twenty questions to assist him with his motion for a new trial. The judge denied this petition as well. Birks then filed essentially the same mandamus petition in the county court.

Issue: Whether the plaintiff can file a writ of mandamus in the trial court and county court sequentially.

No. Although a writ of mandamus may be brought in either the trial court or the Superior Court, this does not mean that a petitioner may sequentially seek the identical relief in one court after the other. Concurrent jurisdiction “does not, in other words, allow [a petitioner] two bites of the apple.” (JT)