Frustrated with his infant son’s crying, police said, Jay Procopio silenced his baby the only way he knew how: by slamming the boy so hard on the floor of his apartment that the downstairs neighbors felt the ceiling shake.
That was 24 years ago. Since then, Procopio, a 56-year-old functionally illiterate man, has spent 22 years in prison—until he was granted a new trial and bail after the appeals court said he never should have been allowed to plead guilty to killing his son in the first place.
Now, Middlesex County Superior Court Judge Thomas Billings will have to decide what is justice in a case with little precedent. Functionally illiterate with an IQ of 48, Procopio isn’t competent to stand trial, clinicians say. He is too cognitively challenged to help his attorneys or to understand the proceedings against him. Yet he still has a first-degree murder indictment against him for his son’s death.
As Billings explained it in his decision two years ago when Procopio was released on bail, he is in a legal catch-22. Procopio can’t go up for parole because the conviction has been vacated. He can’t plead guilty to a lower charge because he’s not competent to do so.
And the part of the law that allows judges to dismiss charges against defendants who aren’t competent to stand trial gives the guideline of “half the maximum time.” But there is no half of a life sentence, the penalty for first-degree murder.
Procopio’s attorney will argue for the case to be dismissed in a hearing Monday morning in Middlesex Superior Court. (Update, Monday, 11 a.m.: Billings said he will issue a written decision within the next week.)
“You have somebody who is so significantly handicapped that he is totally unable to understand these [legal] concepts, much less agree or disagree,” Sandra Bloomenthal, his appellate attorney, said. “They just do not get the fact that some people are so impaired that they don’t have the ability to be tried.”
Even the judge who accepted Procopio’s guilty plea in 1993—a plea the appellate court said she should have rejected—thinks the case should be dismissed.
“At this point in time, if I found he was not competent, I’d certainly let him go,” now-retired Judge Katherine Liacos Izzo said last week.
Bloomenthal said she expects the Middlesex County District Attorney’s office to fight the dismissal, just as they’ve fought the competency issue over the last three years. Last week, a spokesperson with the Middlesex County District Attorney’s office did not answer questions about the case.
Jay Procopio was 32 in March 1992 when his wife left him alone in their Woburn apartment with 5-month-old Eric and their toddler daughter.
He never should have been alone with the kids.
A year earlier, his then-3-month-old daughter went to the hospital covered with bruises and bleeding in her brain after her father allegedly shook her. The family lost custody of the girl for six months, but got her back in September 1991. He was ordered not to be alone with the children.
Six months later, on March 19, 1992, Eric wouldn’t stop crying.
“I just wanted him to stop crying, and by throwing him on the floor I knew he would stop,” Procopio told a state trooper the day he was arrested, according to the trooper’s notes.
Eric died at the hospital, with a five-inch fracture and several spider fractures in his tiny skull.
At the police station, Procopio hand-wrote a confession, something his court-appointed attorney Robert Snider unsuccessfully tried to get suppressed.
A year after he was arrested, Procopio was in front of a judge pleading guilty to second-degree murder. Reading through the transcript of the hearing, it’s questionable whether Procopio understood what he was doing.
“I did not throw him to the floor, I swear to God,” Procopio told the judge. It was an accident, he maintained.
Still, Judge Izzo let Procopio plead guilty to second-degree murder.
The appeals court said in 2013 that was the wrong call. Procopio’s insistence that the death was an accident indicates he didn’t make the plea intelligently. He was granted a new trial.
Twenty-six years later, Snider maintains that plea agreement was the best Procopio and his family could hope for. He says Procopio understood what he was agreeing to, despite his seeming confusion in front of the judge.
“Everything was explained to him ad nauseam,” Snider said last week. “I think he made the right decision.”
“I just wanted him to stop crying, and by throwing him on the floor I knew he would stop.”
Still, Snider doesn’t think what happened to Procopio—or what’s still happening—is justice. He said in an interview, and in an affidavit requested by the Commonwealth, that he thinks then-Assistant District Attorney Martha Coakley and her bosses should have let Procopio plead to manslaughter, with the condition that he’d never be around young children again.
If he had, he’d have been released from prison two years before Judge Billings granted him bail in 2014.
“You had to look at this case and know how defective this kid is,” Snider said.
The judge who sentenced him still feels the same way. Izzo, now 88, remembered Procopio’s parents pleading with her outside the courtroom, begging her to reduce his sentence from the required 15 years to life.
Though she felt horrible for the parents, Izzo said she couldn’t do anything about it. He had an agreement with the prosecution.
“His was a very pathetic case,” she said from her home in Florida. “I don’t know why the parents did not insist on having a [competency] hearing. I don’t know why the lawyer didn’t insist on having a hearing. It was fait accompli. This is the agreement and you can’t do anything about it.”
As Snider recalled last week, a doctor evaluated Procopio in 1992 and said that he was competent, but just “defective.” The question of competency never went in front of a judge.
That same doctor, Dr. Prudence Baxter, evaluated Procopio again in 2013 and expressed new doubts about his competency to stand trial. She recommended he go to Bridgewater State Hospital, where a clinician said he was not competent but could possibly be restored.
Recently retired, Baxter did not return a phone message seeking comment.
“If I found he was not competent, I’d certainly let him go.”
Procopio was sent back to prison after the 2013 finding of incompetency. But a year later, Billings released him on bail, saying there was little chance he could achieve competency while in prison and that it violated his constitutional rights to hold him indefinitely.
Attempts to reach Procopio’s now-ex-wife and their adult daughter were unsuccessful.
In the last two years, Procopio has lived with his mother and stepfather on the North Shore, Bloomenthal said. She didn’t make him available for an interview.
Reached last week, Procopio’s father said in a brief phone conversation that he couldn’t say much, as he didn’t want to jeopardize the case and his son’s shot at freedom.
“He’s been a good kid throughout his life,” Joseph Procopio said. “And things haven’t been fair with him.”