Judge Denies Motion To Dismiss Downtown Stabbing Charges

A Nantucket District Court judge denied a motion to dismiss charges against Kemar K. Downer, accused of stabbing Andre Hamilton, after a Tuesday hearing. The judge also allowed a return of Downer’s $2,500 cash bail and removed a GPS monitoring requirement, whi

Kemar K. Downer’s motion to dismiss the stabbing case was denied in Nantucket District Court on Tuesday morning, after Judge James Sullivan heard arguments from both sides.

The case centers on Downer, who is charged with stabbing Andre Hamilton last week. At Tuesday’s hearing. Sullivan also granted another motion involving Downer’s release conditions: Sullivan allowed the return of Downer’s $2. 500 cash bail and removed the GPS monitoring device that had been required by the court. Even as those restrictions eased. Sullivan maintained the order that Downer stay away from Hamilton and have no contact with Hamilton or his residence.

Downer will return to court for a pretrial hearing on August 3rd. That same day, Hamilton is scheduled for an arraignment on charges related to the same incident.

The argument that failed for Downer focused on timing.

Downer’s attorney. Rob Moriarty. asked the court to dismiss the case based on what he said was a failure to bring Downer in for an arraignment promptly after his arrest. Moriarty argued that Downer was held in custody overnight and that his right to a prompt judicial determination of probable cause was violated. He pointed to Jenkins v. Chief Justice of the District Court Department. a 1993 Massachusetts Supreme Judicial Court case. and to Article 14 of the Massachusetts Declaration of Rights. which calls for prompt judicial determination of probable cause.

During last week’s arraignment—held the morning after Downer’s arrest—Moriarty had already voiced frustration that Downer was held overnight and not arraigned the day of the stabbing. On Tuesday, Moriarty argued that the delay was unnecessary even while the court was in session.

“This incident occurred at approximately 10:30 a.m. and he was done giving statements to the Nantucket Police by around 1 o’clock and then they didn’t bring him to court as they’re required to under the law while court was sitting. while there was defense counsel there waiting for an arraignment. while the Commonwealth was ready. ” Moriarty told the judge. “He’s charged with stabbing. They should have brought him to court (Tuesday) afternoon. His right to a prompt arraignment was denied, and the complaint under Jenkins should be dismissed.”.

The prosecution urged the court to deny dismissal. arguing that Downer was still brought into court within 24 hours of his arrest. Assistant district attorney Aine Dillon said the police conducted multiple investigations that led to charges against both Downer and Hamilton. and requested the motion be denied during Tuesday’s session.

Dillon also relied on note 11 in the Jenkins case, which states that criminal arraignments on Martha’s Vineyard and Nantucket can take more than four days following an arrest, because the islands do not have daily court sessions.

Moriarty pushed back sharply. He said Nantucket District Court was in session the day of the stabbing and argued that by two or three o’clock in the afternoon. the investigation had been completed with more than enough time to bring Downer to the courthouse for an arraignment. because court personnel were present. He also argued that the Jenkins decision was made in 1993. when it wasn’t as easy to get people and resources together quickly. whether in person or through Zoom.

Sullivan and Moriarty also discussed the Jenkins case with the focus on weekend arrests, as Moriarty pointed out that Downer’s arrest was on a Tuesday.

The judge responded that the Supreme Judicial Court recognized it could take several days regardless of what day the incident took place. Sullivan acknowledged that the court was in session Tuesday and said the practice in Nantucket District Court is to hold arraignments as soon as possible.

Moriarty continued arguing that the delay deprived Downer of liberty.

“It’s pretty clear to me that he’s done being booked by three o’clock,” Moriarty argued in response. “He could have been brought (to the court) and he was not. And the presumption is that you’re supposed to take a person to court if they are in session. and (the police) didn’t. They deprived him of his liberties to his detriment.”.

When Sullivan issued the decision on the motion to dismiss, the judge said he understood the frustration but found the case was not straightforward. Sullivan concluded that dismissal was not appropriate because the relevant steps were completed within the 24-hour period.

“Sullivan concluded by saying he understands Moriarty’s frustration. but this was not a straightforward case. and ultimately he decided not to dismiss the case since everything was still done within the 24-hour period. ” the record reflects. Sullivan said there were multiple witnesses to be spoken to and that both parties involved in the altercation ultimately ended up charged.

“I understand your frustration because, like you, Mr. Moriarty, we were waiting for the arraignment pretty much the whole day. But we don’t have control over what goes on over or outside of the courtroom,” Sullivan said in his decision. “I think, based on my calculations, we are within the 24-hour period. I have read some cases that suggest that even in the event of a Jenkins violation. dismissal would be the inappropriate remedy. But I will note your objection to all those things. and I think it’s a good point to take when we try to move these things and should move these things as quickly as possible. particularly when we have custodies involved.”.

After losing the motion to dismiss, Moriarty turned to the restrictions still in place.

Moriarty asked Sullivan to reconsider the $2. 500 cash bail and the GPS monitoring device. citing what he described as changes in the case following charges being pressed on Hamilton. Moriarty also argued that a surveillance video supports Downer’s claim of self-defense. He said the GPS system was a “serious restraint on his liberty.”.

The video—obtained by the Current last week—appears to support Moriarty’s claim of self-defense, showing Downer being approached and attacked first by Hamilton.

Moriarty called the ongoing case directionless, and asked the judge to remove the GPS requirement.

“This case is ultimately, under the circumstances, going nowhere,” Moriarty said bluntly. “He has every reason to come to court, and there’s no reason for the GPS. Your initial decision was very fair, but he acted totally in self-defense. I’d ask that you reconsider.”

Dillon responded by saying, “The commonwealth does not know where this case is going and neither does counsel.”

Dillon requested that bail remain in place, but she did not argue against the removal of the GPS device—though she asked the court to keep Downer bound by conditions that he stay away from Hamilton, have no contact with Hamilton, and stay away from Hamilton’s residence.

Those conditions remained after Sullivan’s ruling, even though the GPS monitoring requirement was lifted and the $2,500 cash bail was ordered returned.

Sullivan’s decision left the case moving forward toward next steps on August 3rd, when Downer faces a pretrial hearing and Hamilton is set to be arraigned on charges tied to the same incident.

Kemar K. Downer Andre Hamilton Nantucket District Court James Sullivan GPS monitoring $2 500 cash bail Jenkins v. Chief Justice Article 14 Massachusetts Declaration of Rights stabbing case