A Bristol County judge yesterday ordered Michelle Carter to begin serving a 15-month sentence after the state Supreme Judicial Court had unanimously affirmed the Plainville woman's conviction of manslaughter for pressuring Conrad Roy to commit suicide. When the two were teenagers in 2014, Carter urged Roy — via a series of text messages — to follow through on his plans to commit suicide by poisoning himself with carbon monoxide. Carter's lawyers have said they will try to take her case all the way to the Supreme Court, arguing that Carter's text messages did not directly cause Roy's death and that they should be protected from prosecution by the First Amendment. WGBH News Legal Analyst and Northeastern Law Professor Daniel Medwed predicts the Supreme Court will pass on hearing the case. The transcript below has been edited for clarity.
Joe Mathieu: First, I'm wondering if you were surprised by what happened yesterday, the judge ordering Carter to begin her sentence, even as she pursues other legal options?
Daniel Medwed: Frankly, no. Back in Aug. 2017, when the judge, Laurence Moniz, first stayed the jail sentence — that's a fancy legal term for suspended or delayed the sentence — he indicated he was doing so only so long as the state appeals process was unfolding. Now that the SJC has spoken, and emphatically so, that's the end of the state direct appellate remedies. And it makes sense for her to begin her jail sentence immediately, especially because the chance at this stage of her conviction being overturned is exceedingly remote.
Mathieu: So is this the end of the road for Carter? What are the next steps if there are any?
Medwed: Yeah. There are two viable options not — especially viable, they're pretty remote. For one thing, she could file a petition for a writ of certiorari with the U.S. Supreme Court. It's called a cert petition, which basically would ask the U.S. Supreme Court to take her case. She has 90 days after the completion of the SJC decision in which to file that petition. Now, the odds are stacked against her statistically. I looked at some of the data from recent years, and get this — back in 2016, there were 6,335 cert petitions filed, only 69 of them were granted for oral argument. That's a success rate, or acceptance rate, of a little over 1 percent — you know, maybe even harder than getting a job at WGBH, I'm not sure. In addition, she could file what's called a Rule 30B motion in the Massachusetts state courts, asking for a new trial on the grounds that "justice may not have been done" in her case. So I think these are the two principal options down the road.
Mathieu: Let's talk about the Supreme Court for a moment, we've been hearing a lot about this. Given the novelty, and we'll say the high-profile nature of this case, is there any chance Carter could fall within that very small percentage of cases where review, in fact, is granted?
Medwed: Well, if I were Michelle Carter I wouldn't get my hopes up, and here's why: the U.S. Supreme Court typically only takes cases where there's a split between the lower courts — a circuit split. Or [the Court will take a case] where the case concerns an issue of transcendent national significance, something like abortion rights or gun rights or same sex marriage, something of that nature. So if I were her attorney, I would pitch the case to the U.S. Supreme Court in the following way: First, I'd try to make it a referendum on the hazards of cyber-bullying, online harassment, which is obviously something that's reached epidemic proportions among teenagers. Second, I'd underscore [and] continue to emphasize the First Amendment issues in this case, which is something that her lawyers have litigated since the very beginning: the idea that she was being prosecuted for her words, not her conduct, and that that deserves First Amendment protection. For what it's worth, that [point] never gained purchase with the SJC, and I don't think it's an especially compelling argument, but it might be the best way of pitching it to the Supreme Court.
Mathieu: We're talking with WGBH News Legal Analyst Daniel Medwed. You've been critical of this prosecution from the beginning. So what do you think should happen in future cases like this, [when] somebody pressures a vulnerable person to commit suicide? There was a lot of confusion about what to do here.
Medwed: Sure, well let me be clear — what Michelle Carter did was absolutely appalling, unforgivable, but it was not manslaughter. I always felt like this particular charge was an ill-fitting suit being draped by prosecutors over the ugly facts of this case, that it was a strong overreach by prosecutors. And I'm concerned about the long-term consequences of prosecutors charging people very far downstream from a death with manslaughter. That said, what I think the legislature should do, is pass a very narrow, targeted statute that makes it a crime to coerce someone into committing suicide. New Hampshire has a law like this, and a couple other states do as well. Now, for years our legislature has abdicated responsibility in the entire space of assisted suicide. Perhaps it doesn't want to wade into those murky waters of mercy killings and death with dignity. And then at the other end, of course, cases like Michelle Carter where there's coercion and pressure, encouragement. But I think it's time to act.
Mathieu: Were there a law like that we wouldn't be having this conversation.
Medwed: We wouldn't, and it wouldn't have been a national case.