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Appeals Court nominee quizzed

Council could vote next week

By Kyle Cheney
State House News Service / August 25, 2011

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Peter Agnes, a Worcester Superior Court judge nominated by Governor Deval Patrick to the state Appeals Court, said yesterday that when he issues a criminal sentence, he seeks to ensure that the defendant has an opportunity to earn parole because of evidence showing that parolees are less likely to commit new crimes than those released without supervision.

“Unless there is a request made by the defendant for a sentence that does not make the defendant eligible for parole, I always try to fashion a sentence that leaves open parole,’’ he said during a three-hour confirmation hearing before the Governor’s Council. The eight-member elected council could vote on his appointment as early as next week.

Agnes acknowledged that he had initially applied for a position on the Supreme Judicial Court - and was among a handful of applicants recommended by a panel that advises the governor - but Patrick instead appointed Barbara Lenk.

Agnes’s nomination to the Appeals Court, the second-highest court in Massachusetts, encountered some opposition from a handful of critics, but appeared to face little pushback from members of the Governor’s Council.

Agnes, who was first appointed to Charlestown District Court in 1991 by Governor Michael S. Dukakis and was elevated to Superior Court in 2000 by Governor Paul Cellucci, faced opposition from disgruntled litigants who asserted that he has ignored their legal motions for years in a conflict-of-interest suit. Agnes told the council that he questioned his critics’ assertions and rejected complaints of misconduct and cronyism that accompanied their complaint.

Council members appeared unfazed by the accusations, which occasionally became heated, and one suggested that Agnes’s response to the criticism was a testament to his fitness for a seat on a higher court.

“The demeanor that you demonstrated today, even when other people weren’t as reserved, is the exact demeanor that you exhibit every day in the courtroom, no matter what’s going on,’’ said Councilor Terrence Kennedy, a Lynnfield Democrat, who said he has known Agnes for 29 years.

Councilor Jennie Caissie, an Oxford Republican, agreed, noting that Agnes has met with thousands of litigants during his tenure on the bench.

“The fact that two litigants showed up here in opposition speaks for itself,’’ she said.

Councilor Charles Cipollini also praised Agnes’s credentials and extracurricular activities.

Councilor Marilyn Devaney, who presided over the hearing, has praised Agnes’s qualifications, and Councilor Kelly Timilty, from whose district Agnes hails, did not attend his confirmation hearing, nor did Councilor Thomas Merrigan, a Greenfield Democrat.

Agnes said that he views the role of the Appeals Court as limited to working within the confines of facts identified by lower courts.

He told councilors he has presided over more than 1,000 bench trials and hundreds of civil and criminal jury trials in 21 years on the bench. Prior to becoming a judge, he worked as chief of operations for Dukakis, as well as assistant secretary of public safety and assistant district attorney in Norfolk and Middlesex counties. An adjunct professor at the Massachusetts School of Law, the Wayland resident is a Boston University graduate with a law degree from Suffolk University Law School.

Agnes also said he believes mandatory minimum sentences for criminal offenders are constitutional. But he described “a growing body of research that suggests that, at least for nonviolent offenders, such as drug abusers, there are more effective, less costly ways of addressing their problem than incarceration.’’