Focus on Reducing Recidivism

We’ve spoken at length in this space about the BBA’s opposition to mandatory-minimum sentencing, which limits judicial discretion, applies one-size-fits-all solutions regardless of the facts and circumstances of each case, and contributed heavily to the explosive growth in prison and jail populations across the nation (with Massachusetts no exception) in the last decades of the 20th century.

Support has grown for reform of mandatory sentencing practices as the toll they have taken on individuals and their families, and the costs they impose on state budgets, have become clearer.  But the public debate on criminal-justice policies has broadened, to include a variety of other issues, such as: reform of the bail process, to make it more reflective of the true risk posed by a defendant and less disproportionately punitive toward the poor; use of evidence-based risk assessment tools to help determine the security classifications of inmates behind bars, and their appropriate level of supervision upon release; and ways to reduce recidivism and promote successful re-entry of the 90-plus% of those currently incarcerated who will ultimately return to society after incarceration.

There has been much movement in recent weeks on this last point.  In January, two different groups dedicated to in-depth analysis of criminal-justice data in Massachusetts publicly presented their findings.  And this past Saturday, at our annual John and Abigail Adams Benefit, the Boston Bar Foundation bestowed its 2016 Public Service Award upon Roca, a community-based non-profit organization committed to helping 17-to-24-year-olds succeed in re-integrating to society.  Read more about Roca here.

Founded in 1988 by CEO Molly Baldwin, who accepted the award for Roca during the event at the Museum of Fine Arts, Roca focuses on those youths, overwhelmingly men, who are at greatest risk of recidivism – gang members, school drop-outs, young parents.  Their outcomes-driven approach combines relentless outreach with data-driven evaluation, starting with the question, “Are we helping young people change behaviors to improve their lives — and how do we know?”  Roca recognizes that criminal involvement and poverty are intertwined, and they seek to disrupt that cycle, with the motto, “Less jail, more future.”

In 2014, Roca partnered with the state and outside investors to undertake the Massachusetts Juvenile Justice Pay for Success Project, one of the nation’s first projects involving “social impact bonds,” which deliver private funds to non-governmental organizations on the promise that their work, and their expertise, can help save money in the end.  Essentially, if Roca is able to reduce recidivism and improve job skills for its target group of ex-offenders, the state will reward investors out of its criminal-justice savings.  If they are unable to do so, the investors will take the loss.  The project is set to run through 2020, but either way, Roca and the state government will gain valuable data on what works and what doesn’t, and Roca is using the funds to help grow its operation, which began in Chelsea, but has since expanded to other communities within Greater Boston, and to Springfield.

While Roca has been working with young people at the ground level, researchers at the public-policy think tank MassInc have been studying what the statewide data show about our re-entry practices in Massachusetts, with an eye toward how a better strategy can improve outcomes.  Last week, they held an event to announce the release of their latest report on criminal justice, Reducing Recidivism in Massachusetts with a Comprehensive Reentry Strategy, and to discuss its findings.

One of the report’s key takeaways is that our re-entry supervision resources are being distributed inefficiently: For example, ten percent of inmates are released to “dual supervision,” meaning they are redundantly required to report to both the Department of Probation (based on a sentence that included probation time after incarceration) and the Parole Board (for those who were released under their auspices).  These agencies operate independently, within two different branches of government (Parole under the executive and Probation under the judiciary).

Furthermore, the MassInc researchers classified released individuals by their assessed risk – low, medium, and high – and found, perversely, that the high-risk inmates were actually the most likely to be returned to the street with no supervision at all.  One factor is that in about half of the instances where a mandatory minimum applies, the judge imposes an “and a day” sentence, in which the maximum sentence is one day longer than the minimum.  As a result, the defendant effectively has no option of parole.

Bruce Western, Professor of Sociology at the Kennedy School of Government, then offered findings from his own research on the critical factors that deter recidivism.  Prof. Western categorizes them by age upon release, and looks at whether ex-offenders have mental-health or substance-abuse problems, whether they have employment, stable housing, or family support, and whether they participate in social programs.  One of his main conclusions is that families – and, in particular, older female relatives – should be supported as part of a typical re-entry plan, because they can have a very positive effect on outcomes.  Another focus should be older men – who are less likely to have such relatives in their lives and thus more likely to be socially isolated – especially those experiencing poverty, mental illness, or addiction.

The forum ended with a panel discussion that included Berkshire County DA David Cape less, MassINC Research Director Ben Forman, the BBA’s Civil Rights & Civil Liberties co-chair Rahsaan Hall of the ACLU of Massachusetts, representatives from Connecticut and Texas – two states that have recently reformed their criminal-justice policies – and Conan Harris, the Deputy Director of the Mayor’s Office of Public Safety Initiatives for the City of Boston, and himself an ex-offender.

While there appears to be growing momentum toward an overall re-evaluation of our own policies in Massachusetts, any major reform is likely to have to wait until 2017.  That’s because the Justice Center of the Council of State Governments plans to spend this year collecting and analyzing data and developing policy options, at the joint request of Governor Charlie Baker, Senate President Stanley Rosenberg, House Speaker Robert DeLeo, and SJC Chief Justice Ralph Gants.

Last month, their Massachusetts team gave dual presentations on their initial findings, to the full working group tasked with guiding their effort, and to the state’s standing commission on criminal justice, which includes Marty Murphy of Foley Hoag as the BBA’s representative.

Thus far, 23 other states have benefited from the Justice Center’s data-driven review process.  But each state presents a different picture, and the Center is careful to tailor their proposed recommendations to each state’s data and practices.   Their justice-reinvestment process seeks to identify areas where evidence-based solutions can yield cost savings, which can then be shifted toward programs that have proven their effectiveness at reducing recidivism while protecting public safety.

Though the Center’s Massachusetts work is still in its early work, their analysis has already produced some interesting findings.  For example, while the total incarcerated population is down 12% since 2006, all of that decrease has come from county houses of correction and jails; the number of sentenced inmates in state prisons has actually grown by 3% over that time.  And even at the county level, there is wide variation in population changes.  Meanwhile, they did detect a decrease at the state level over the past three years, but it’s too soon to tell whether this represents a true downward trend.

When the Center looked into recidivism, they noted that data are held by a great number of different agencies, and that, for the most part, those data are not made public.  The long-term trend shows recidivism rates holding steady, at about 40%, but the numbers from the past two years are lower; again, they could not say with any confidence that this will continue.

When it comes to supervision, the third area they’re looking at, the numbers show that while the number of parolees is down sharply in recent years, the population under probation supervision is on the rise.

The Center plans to continue its work on these and other findings and will report back to the working group throughout the year, with the goal of producing legislation that can be filed by the beginning of the 2017-18 legislative session.  We will, of course, continue to monitor all developments in this area, and report back to you here.

— Michael Avitzur
Government Relations Director
Boston Bar Association

Walk to the Hill 2016

Walk to the Hill 2016 was a huge success.  More than 600 attorneys packed the State House’s Great Hall and spread throughout the building, telling their legislators about the importance of civil legal aid and explaining the urgent need for an additional $10 million in funding.  This increase would bring total funding for the Massachusetts Legal Assistance Corporation (line item 0321-1600) to $27 million, allowing them to greatly expand essential services to the most vulnerable populations.

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BBA President Lisa Arrowood speaking at Walk to the Hill

Our day began with the BBA’s annual pre-walk breakfast where more than fifty young lawyers gathered to prepare their talking points over coffee and donuts.  We were especially excited to welcome a busload of UMass Boston Law School students who helped get the hashtags “I Walk for Justice” and “Walk to the Hill” trending!

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BBA President Lisa Arrowood with Representative Stanley

BBA President Lisa Arrowood met first with her Representative, Thomas Stanley, and then her Senator, Michael Barrett.  Both were interested in learning more about the findings of our Investing in Justice report that for every $1 spent helping fight against wrongful evictions and foreclosures, Massachusetts saves $2.69 in shelter, health care, foster care, and law enforcement costs.  In addition, every $1 spent on legal aid for survivors of domestic violence results in $2 in medical and mental health care savings, and every $1 spent on legal aid attorneys working to secure federal benefits yields $5 in federal economic benefits to Massachusetts residents.

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BBA President Elect Carol Starkey with Representative Coppinger

BBA President-Elect Carol Starkey also paid a call on her legislators, Representative Edward Coppinger and Senator Mike Rush.  They both noted their support and thanked Carol for spreading the word.

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By 11:00 we were registering and entering the Great Hall with more than 500 of our colleagues.  Equal Justice Coalition Chair John Carroll welcomed everyone to the event and spoke passionately about the importance of legal aid and everyone’s efforts on this day.

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Attorney General Maura Healey was full of high praise, noting that while many think of her office as the “people’s attorney,” legal services are as well.  She applauded them for their work and the legal community for its great showing of support, asking that we all “remember who we are and what we should always aspire to be.”

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Chief Justice Ralph Gants put the funding request into perspective, explaining that $27 million is less than the cost of a single round-trip T-ride for every Massachusetts resident and at less than $4 per person, is below the New York funding rate of $4.30 per resident.  He encouraged attendees to answer legislators who asked how they could afford such an increase with a question of their own, “How can we afford not to?”  He finished, much like a Supreme Judicial Court holding, with a strong closing statement – that supporting legal aid is right, reasonable, and smart.  Read his full remarks here.

IMG_8378MBA President Bob Harnais encouraged legislators to visit the courts to see the effects of the lack of representation – both on the court system and on the pro se litigants themselves, who are confused and overwhelmed.  He recommended attendees invite their legislators to court to offer hard proof of the need for legal aid funding because “seeing is believing” and justice should not be reserved for those who can afford it.

BBA President Lisa Arrowood held up the BBA’s Investing in Justice report and encouraged attendees to spread the word about its contents – making the argument that funding legal aid makes sound business sense for the Commonwealth.  Watch the video above for her full remarks.

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Greater Boston Legal Services (GBLS) client, Lisa, spoke about how civil legal aid literally offered her son a second chance at life.  When her son was a senior in high school, routine surgery to remove his wisdom teeth resulted in an addiction to pain medication, and a 10-year battle with heroin.  Shortly after he committed himself to methadone treatment, working hard every day to overcome his addiction, he was declared ineligible for MassHealth care coverage because of an administrative change.  Lisa feared that, if he were to miss even one day of treatment, he would suffer withdrawal symptoms and quickly relapse.  GBLS took her case and worked with MassHealth to resolve the issue in short order, taking action Lisa recognizes as the difference between life and death for her son.  Read more about her story here.

Everyone was moved by her story and inspired by all of the speakers to speak with their legislators.  This year’s Walk to the Hill was an unqualified success and a remarkable demonstration of the private bar’s support for access to justice.  Thank you to everyone who participated – we hope that you will continue to be involved throughout the budget process and we look forward to seeing you again at next year’s event!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Senator Brownsberger Talks Criminal Justice Reform at Council Meeting

Today we begin the final countdown to Walk to the Hill 2016 for civil legal aid, which is happening exactly one week from the date of posting, on January 28, from 11:30-12:30 (on-site registration begins at 11:00 am) at the Great Hall in the State House.  So we were very excited to welcome to this week’s BBA Council meeting a key legislator and long-time supporter of legal-aid funding, Senate Chair of the Joint Committee on the Judiciary, William Brownsberger.  Senator Brownsberger began with some background on his legal career.  He spoke of his tenure in the Attorney General’s office where he worked on the Public Protection Bureau and as Asset Forfeiture Chief in the Narcotics and Special Investigations Division.  It was there that he first became interested in the issues of addiction, and began consulting and teaching on criminal justice and addiction issues, which he soon turned to full-time.
IMG_7943It wasn’t long, however, before he became sick of talking about people with addictions, and wanted to talk with them, so he began practicing in drug court.  He explained his philosophy that criminal lawyers play a “sacred role” in court so that every defendant knows they “got a fair shake.”  He described how this experience changed his thinking about criminal justice and supervision, as he witnessed that jail time, followed by over-supervision after release, could “crush people” and keep them from reaching their potential as productive members of society.

The Senator then moved on to discussing his views on the need for criminal justice reform, which have been formed by both his personal experiences and his study of the larger issue.  For example, he shared this stunning statistic: 40 years ago the prison population in Massachusetts state prisons was under 2,000 and had been holding fairly steady for decades.  But between 1975 and the early 1990s, that population increased five-fold to around 10,000 individuals, where the level has more or less remained for the last twenty years.  Senator Brownsberger said when he looked into these statistics alongside legislative reforms made during that time period, he could not entirely link the massive prison population increase to major legislative changes.  He concluded that the increase was actually the result of a general societal “tough on crime” push that affected not only legislators but also police, district attorneys, judges, and the public as a whole.  The question now is, can we dial that back? And if so, how?
IMG_7950Furthermore, if it’s the case that the current incarceration problem stems from a larger systemic shift, it is likely that the Legislature cannot solve it alone.  While the Senator expressed some frustration that major reforms have been delayed in the recent past to await the results of outside studies, he was excited about the recent study on Justice Reinvestment being undertaken in Massachusetts by Pew and the Council of State Governments — and by the potential their work holds for bringing the state’s leaders together on criminal justice reform.  He hopes that the state will pass some limited reform bills this session (what he termed hitting “singles and doubles”, such as easing the burden of post-release driver-license suspensions for drug offenders) and then make a push for major, comprehensive reforms in 2017.

While mandatory minimum sentences – which the BBA has long opposed — are certainly a part of the problem, the Senator explained that he felt their impact was sometimes overstated, as they are responsible for less than 20% of the inmate population at both prisons and houses of correction.  He hopes to:

  • increase prisoners’ ability to earn “good time” in order to ultimately shorten their sentences
  • re-classify certain inmates into lower-security facilities as their release nears, in order to better prepare them for re-entry, and
  • rework probation and parole by reducing or eliminating fees and addressing the problem of redundant dual supervision of one ex-offender by both agencies.

These and other steps are aimed at revamping the justice system to make it more supportive of successful re-entry.

We thank the Senator for his insights into the criminal justice system and look forward to working with him on future reforms.  In the meantime, we hope that you will join us at Walk to the Hill for Civil Legal Aid on January 28 to hear speeches by BBA President Lisa Arrowood, MBA President Bob Harnais, and state government leaders and then meet with your State Senator and Representative.  Tell them how much civil legal aid funding means to you, voice your support for appropriating a much-needed $27 million to the Massachusetts Legal Assistance Corporation (MLAC – line item 0321-1600), and start a dialogue that you can continue throughout the budget process — and into the future on issues of interest to you, such as the criminal justice reforms Senator Brownsberger and others are working on.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Protecting Attorney-Client Privilege, Defending Access to Justice

On Monday, we were excited to watch oral argument in Commonwealth v. Wade, a case for which we submitted an amicus brief.  The case is of major import to the BBA as it deals with two issues central to our mission – promoting access to justice and protecting attorney-client privilege.  At issue in the case is whether a criminal defendant qualifies for DNA testing under the 2012 Massachusetts post-conviction DNA testing law for evidence from a crime he was convicted of in 1997.  The oral argument touched both on our brief and on our unique role in spearheading the effort to enact the law.

Wade oral argument screenshot

Attorney-Client Privilege

The BBA is known for its defense of attorney-client privilege, which is part of our mission of “advanc[ing] the highest standards of excellence for the legal profession,” and a bedrock principle of the entire legal system.  The BBA has aggressively protected this tenet, particularly through amicus briefs over the 15 years.  For more, check out our briefs in:

In Wade, the privilege issue arises over interpretation of the post-conviction DNA testing law.  In the case, the Superior Court judge interpreted language from this law, codified as Chapter 278A, to demand the “primary cause” that DNA testing was not pursued at trial.  As a result, the judge required the defendant’s attorney to testify against his will and to violate the attorney-client privilege in order to assess the “primary cause” why DNA testing was not initially pursued at trial.  Our brief makes clear that the law does not actually require this finding, that the judge erred in violating this privilege, and, in doing so, frustrated the purpose of the law and could potentially chill future claims, denying wrongfully-convicted individuals a pathway to establish their innocence.

At oral argument, the SJC justices asked both parties about where to draw the line on protecting attorney-client privilege.  Counsel for the defendant argued, much like our brief, that an attorney should never have to violate the privilege to testify, because the law’s standard is objective, asking only what a reasonably effective attorney would do, and not whether the attorney in a particular case was or was not reasonably effective.  In her words, “the piercing of the attorney-client privilege was extreme judicial overreaching. It was excessive.”  While she conceded that it would be appropriate for the court to ask the lawyer about his or her decision making, the “attorney-client privilege should be sacrosanct.”

Counsel for the Commonwealth took the opposite view, arguing in line with the Superior Court judge that the correct reading of the statute requires defense counsel to name the “primary cause” why testing was not pursued and that a judge would be justified in requiring them to speak on the issue regardless of privilege, saying the Commonwealth “can always” call counsel to find out their reasoning in not getting then-available testing, even if the defendant is not claiming that the a reasonably effective trial attorney would have sought testing (see clause (iv) below).

Access to Justice

The BBA played a major role in the drafting and enactment of the law at issue in the case – Chapter 278A, the state’s 2012 post-conviction DNA testing law, but this is only the tip of the iceberg.  A brief history:

At issue in the case was interpretation of Chapter 278A, Section 3(b)(5), which permits new forensic testing if a defendant can show, inter alia, that the evidence has not already been subjected to the requested analysis.  It sets out five reasons why it would be justifiable for the requested analysis not to have been pursued, such that it should be pursued now.

(i) the requested analysis had not yet been developed at the time of the conviction;

(ii) the results of the requested analysis were not admissible in the courts of the Commonwealth at the time of the conviction;

(iii) the moving party and the moving party’s attorney were not aware of and did not have reason to be aware of the existence of the evidence or biological material at the time of the underlying case and conviction;

(iv) the moving party’s attorney in the underlying case was aware at the time of the conviction of the existence of the evidence or biological material, the results of the requested analysis were admissible as evidence in courts of the Commonwealth, a reasonably effective attorney would have sought the analysis and either the moving party’s attorney failed to seek the analysis or the judge denied the request; or

(v) the evidence or biological material was otherwise unavailable at the time of the conviction.

These prongs are nearly identical to the recommendation contained in Getting It Right.

Our brief argues that the judge misinterpreted Chapter 278A.  Once the defendant demonstrated that the requested analysis had not yet been developed at the time of conviction, he satisfied the requirements of § 3(b)(5) and did not need to support any other prong of the test.  The use of “or” in the list of prongs demonstrates that the Legislature intended a defendant need only identify one reason the testing had not yet been done.  The statute contains no requirement that the defendant must show a “primary cause” or “actual reason” why DNA testing was not conducted at the time of trial.  Furthermore, the brief argues, the judge misunderstood § 3(b)(5)(iv): The test is not to determine why the defendant’s attorney did not seek a different type of DNA testing at the time of trial, but rather, whether a reasonably effective attorney could have sought the requested analysis.  Here, a reasonably effective attorney would not have sought the requested analysis because the requested analysis did not exist at the time of the conviction.

We look forward to a final decision from the SJC in the coming weeks and will, as always, keep you up to date on the latest developments.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

2015 Year in Review, Part Two

This week we conclude our look back at 2015 in the Government Relations Department.  (Here’s Part One from last week, in case you missed it.)

Summer

Although summer marks the end of our program year, the work of Government Relations never stops!  In July, we made one last push for increased funding of civil legal aid, as the budget debate reached the final stage.  In the end, MLAC received an additional $2 million in funding, bringing its total to $17 million – not the full $10 million raise we sought, but a massive year-over-year percentage increase of 15% considering the overall budget increased by only 3%.  (We’ll be back this year, again seeking a $10 million increase, highlighted by our participation in Walk to the Hill on January 28.  Please join us!)

We were also pleased when the House and Senate overrode the Governor’s proposed vetoes on certain funding for Prisoner’s Legal Services ($190,504), the Housing Court ($235,527), the Land Court ($291,470), and administrative staffing of the Trial Court ($3.7 million).  All provide essential services to people in Massachusetts.

September

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BBA President Lisa Arrowood with  Annual Meeting Keynote Speaker, Governor Charlie Baker

September marks the beginning of our new program year – it’s an extremely busy and exciting time at the BBA as it sees the beginning of a new presidency (this year, Lisa Arrowood’s), the return of the Sections (most with new leaders), and the start of new initiatives.  For Government Relations, two events were at the top of the agenda: We hosted a ceremony to honor retired Appeals Court Chief Justice Phillip Rapoza with the Haskell Cohn Award.  And at the BBA’s Annual Meeting, we gave the Presidential Citation to Speaker of the House Robert DeLeo, and House Judiciary Chairman John Fernandes was given the Distinguished Legislator award, followed by a keynote speech from Governor Charlie Baker.

Read all about their respective remarks and see more pictures from the event here.

October
Marilyn Wellington at Council

Executive Director of the BBO, Marilyn Wellington, speaking at BBA Council Meeting

In October, we filed an amicus brief in a pair of cases that follow-up on the Guardianship of V.V. case discussed last week.  Though the single justice ruled in accordance with our brief in that case, that a right to counsel exists for indigent parents in private guardianship cases, the Administrative Office of the Probate and Family Court subsequently read the ruling narrowly, asserting that the right to counsel applies only to the initial petition for appointment of counsel, but not to post-appointment petitions to remove a guardian or to modify a guardianship, such as to allow or increase visitation or contact.  These new issues are now before the SJC.

The BBA-supported brief argues that the statute as a whole makes it clear that any post-appointment motions of necessity concern a child who is still the subject of a guardianship proceeding.  Guardianship is an ongoing matter in which the child, guardian, and the guardianship itself remain under the oversight of the court.  In addition, the brief states that due process and equal protection concerns necessitate counsel for indigent parents at all stages of private guardianship proceedings, as parents have a fundamental and constitutionally protected relationship with their children.  Due process requires that indigent parents enjoy the benefit of counsel when a third party seeks to deprive them of this relationship through a guardianship.  Parents have the same fundamental constitutionally protected interests in their relationships with their children in post-appointment guardianship proceedings as they do in initial appointment proceedings.

The brief also argues the Court’s interpretation of Guardianship of V.V. violates the equal protection provisions of the Massachusetts Constitution in two ways: (1) Parents are treated differently from those in guardianships at the initial petition stage, and (2) they are treated differently from parents in ongoing child welfare custody proceedings.  We are still waiting for a ruling from the SJC in this case and look forward to reporting back to you.

In the same month, we also heard about forthcoming developments in the courts from Chief Justice Gants at his State of the Judiciary Address (read more here) and from Marilyn Wellington, Executive Director of the Board of Bar Examiners about the bar exam and recent trends in results (read more here).

November

In November our Amicus Committee celebrated again, this time in Recinos v. Escobar, a case which was taken up by the SJC sua sponte in expedited fashion to hear the argument of a young plaintiff seeking federal Special Immigrant Juvenile status before her 21st birthday in December.

Since 1990, the federal government has provided for Special Immigrant Juvenile (SIJ) status to qualified children, defined by federal law as unmarried persons under the age of 21, as a pathway to seek legal permanent resident status.  SIJ status requires a finding of abuse, abandonment, or neglect by a specialized state court, and a determination that the child is dependent on the state court, in order to merit SIJ consideration by a federal immigration agency or federal immigration court. However, because the Massachusetts Probate and Family Court generally does not have jurisdiction beyond age 18, some judges felt constrained from making such findings for otherwise-eligible individuals who are 18, 19 or 20.

Thus, in Massachusetts, there was a small class of individuals – roughly estimated to be a few dozen in number — who might otherwise qualify for SIJ status, but appeared to be barred from doing so because the Probate and Family Court would not make a finding.  The brief, which we signed onto with a coalition of concerned organizations and individuals, argues that the Court has equity jurisdiction over youths up to the age of 21 to enter the necessary findings and makes the case that the Massachusetts Declaration of Rights supports this sort of equitable remedy.  The brief further argued that children who have been abused, abandoned, or neglected are dependent on the court to make such a finding since they have been mistreated and because such a finding is required to qualify for SIJ status.

On November 5, the SJC heard oral argument on the case.  The Justices asked a series of tough questions, raising concerns about the circularity of the dependency argument and the appellant’s reliance on case law where the Probate and Family Court exercised equity jurisdiction under very different factual circumstances.  They also referenced our amicus brief, with Justice Hines saying she found the brief “extremely helpful,” and that she felt the brief clarified the dependency issue.

As it turned out, on Monday, November 9, the SJC released its order, ruling in line with the brief – that the Probate and Family Court does have equity jurisdiction to decide the case, and remanding to that court for further proceedings on an expedited basis, so that the appellant would have time to apply for SIJ status before her 21st birthday.

In the same month we:

  • Filed an amicus brief with the U.S. Supreme Court in Fisher v. University of Texas at Austin, arguing that state efforts to promote diversity in education serve a compelling governmental interest that is directly relevant to the goals of the legal profession, because under-representation of lawyers of color harms the legal profession and society as a whole.
  • Held the Chapter 180 Working Group Forum. The Working Group is examining Chapter 180, the principal corporate statute that applies to nonprofits in Massachusetts.  It has existed generally in its current form since the early 1970s, and the last round of minor revisions were completed in early 1991.  Twenty-five years later, it is overdue for a fresh look, and the forum served an invaluable function, giving the Working Group an opportunity to share their progress and solicit input from the attendees.

December

This month, we filed perhaps our most anticipated amicus brief in Commonwealth v. Wade (SJC-11913).  The SJC requested amicus briefs in the case advising whether, in order to obtain postconviction DNA testing under G. L. c. 278A – and specifically, in order to support a finding under c. 278A, § 7 (b) (3), that the evidence or biological material has not been subjected to the requested analysis for any of the reasons in [c. 278A, § (3) (b) (5) (i)-(v)] – it is sufficient for the defendant to establish that the requested analysis had not yet been developed at the time of the conviction, or whether the defendant must also show that a reasonably effective attorney would have in fact sought the analysis had it been available.

The BBA’s brief makes two major points – that the lower court judge erred in interpreting the requirements of G.L. c. 278A and that, in doing so, the judge erroneously forced counsel for the defendant to violate attorney-client privilege.  The BBA has a particular interest in Chapter 278A because it is a product of our advocacy, stemming back to our Task Force to Prevent Wrongful Convictions, whose 2009 report included a draft law nearly identical to what was eventually enacted in 2012.  The purpose of the law, as best articulated in that report, is to “remedy the injustice of wrongful convictions of factually innocent persons by allowing access to analyses of biological material with newer forensic and scientific techniques.”

Oral argument is scheduled for January 11, and we hope our brief proves helpful to the Justices.  We look forward to watching the broadcast and reporting back.

Finally, just a couple of weeks ago, we sent a letter to the Massachusetts Congressional delegation regarding discrimination in federal refugee legislation and policy.  The BBA has long defended principles of non-discrimination and equal protection, and was particularly concerned when the American Security Against Foreign Enemies Act (H.R. 4038), which specifically targets inhabitants of Iraq and Syria for disparate treatment as part of the federal refugee admissions process, passed the U.S. House of Representatives.  The letter explains that we hope our elected officials will continue to keep equal protection and non-discrimination principles at the fore of all legislation and policy decisions, and reject H.R. 4038 and similar proposed legislation.

As you can see, it’s been a busy twelve months.  For a fuller picture of our work, we invite you to read the companion “year in review” piece on BBA Comments as well.  While you’re at it, how about adding Everything You Need to Know for Walk to the Hill, to bring this story full circle, as we are already preparing for the FY17 budget campaign and would love your help!

Thanks for reading!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

2015 Year in Review, Part One

Another year is in the books for the BBA’s Government Relations Department.  A couple of weeks ago we walked you through our 2015 comments to the courts.  This week and next, we’d like to take a look at some of the other work we’ve done this calendar year…

January

January is always an exciting month, as it marks the official beginning of our budget advocacy for civil legal aid (under the Massachusetts Legal Assistance Corporation, or MLAC, line item), the Trial Court, and the Committee for Public Counsel Services (CPCS).  In 2015, because Governor Charlie Baker was new, his recommended budget, so-called “House 1,” which is normally released around the end of January (we anticipate next year’s budget, “House 2”, to come out on January 27) was delayed until early March. However, we were already hard at work on the budget campaign.

With the release of Investing in Justice in October 2014, after 18 months of study by the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts, we were primed for a big year and, led by the Task Force’s chair, former BBA President J.D. Smeallie, we had already held meetings with a number of legislators, including Speaker of the House Robert DeLeo, Senate President Stanley Rosenberg, House Ways & Means Chair Brian Dempsey, and Will Brownsberger, Senate Chair of the Judiciary Committee, by the time January arrived.

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On January 29th, the BBA held its annual meet-up breakfast (click here for information about the 2016 breakfast) and then President Julia Huston addressed hundreds of Walk to the Hill attendees (see photo above).  She and current President (then President-Elect) Lisa Arrowood spent the morning meeting with their individual legislators (see photo below: Julia Huston and Lisa Arrowood with their Senator, Michael Barrett), explaining the importance of supporting legal aid through the Massachusetts Legal Assistance Corporation’s line-item.  We’re already getting set for Walk to the Hill 2016, which will take place on January 28. We hope you’ll join us for breakfast at the BBA and the main event at the State House!

W2H5February

This was a big month for amicus briefs at the BBA.  The SJC ruled in line with our brief in the case of In re Guardianship of V.V., in which the BBA-supported brief argued for a right to counsel for indigent parents of minor children in private guardianship actions.  The Court took the position, as the amicus brief argued, that this right to counsel — which already applied in adoption cases and when the state seeks to remove a child from a parental home — ought to be extended to privately-contested guardianship matters as well.  In the case before the Court, a mother was unrepresented when her grandmother, who had her own attorney, won guardianship of her child.

The BBA agreed to join the brief in support of a right to counsel, in large part because of our longstanding commitment to the principle of access to justice for all.  The amicus brief directly cites three BBA task force and working group reports, including, most recently, Investing in Justice, the report of the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts.  (As you’ll see next week, when we cover the second half of 2015, the SJC’s ruling led to further BBA involvement later in the year.)

The BBA also drafted and submitted a brief in the case of Wong v. Luu, requesting clarification from the SJC on the scope of a court’s inherent authority to sanction an attorney for out-of-court conduct that was not in violation of a court order. In addition, it argued that, before resolving disputed facts in such cases, a trial court should ordinarily conduct an evidentiary hearing to try to establish a basis for finding prejudice to the administration of justice and bad faith.

Our brief was cited at length during oral argument, and the SJC’s holding confirmed that the trial judge did not have authority to sanction the attorney, and that the issue was more appropriate for review by the Board of Bar Overseers. The ruling provides valuable guidance, as our brief sought, on the court’s authority to sanction attorneys. (Read more about this case here.)

March

Our budget advocacy ramped up, as the Governor released his budget.  Facing a $1.8 billion deficit, he proposed level-funding of MLAC.

Only a few weeks later, we welcomed Lon Povich — the Governor’s Chief Legal Counsel, and a former BBA Council and civil legal aid Task Force member — to a BBA Council meeting (see photo below).  Povich explained the whirlwind he’d experienced in his first two months, through the worst winter in Boston’s history and a gaping budget deficit.  He broke down the Governor’s budget proposal for Council members, noting level-funding for the courts and civil legal aid (as well as for most areas), and explained the many difficulties the new administration faced in its preparation, including a short timeframe and major public transportation challenges, not to mention a mandate from the Governor not to raise taxes or fees.

We also stepped up our budget lobbying efforts at the State House, meeting with dozens of legislators.

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April

April was a particularly busy month as we went national — to ABA Day in Washington, DC, that is!  The BBA Director of Government Relations accompanied President Julia Huston and President-Elect Lisa Arrowood to our nation’s capital where they met with both of our Senators and seven of our nine Representatives. They were there to advocate for the ABA’s two main issues: increased federal funding for civil legal aid through the Legal Services Corporation (LSC), and federal legislation to get smarter on crime by reducing the impact of mandatory minimum sentences for federal offenses and diverting juveniles from the justice system.

We were quite fortunate in that we found near-universal support on both of these fronts from our legislators.  It would be easy — and comforting — to assume the Massachusetts delegation is typical in this regard, but we were disabused of any such notion at a pre-lobbying breakfast briefing, where participants learned that many Congressmen have actually voted to completely de-fund LSC.  But later in the year, Rep. Joe Kennedy III demonstrated his commitment by co-founding a bi-partisan Congressional caucus for civil legal services.

In the same month we welcomed SJC Chief Justice Ralph Gants to address BBA Council (read more here) and saw the release of the House Ways & Means budget, which recommended a $2 million increase in the MLAC line-item.  We were also particularly pleased to see the appointment of a number of BBA leaders to Governor Baker’s reconstituted Judicial Nominating Commission (JNC), including former BBA President Paul Dacier as Chair and former BBA Council Member Roberto Braceras as Co-Vice Chair.

May

This month we were excited to hear from Chief Judge Patti Saris of the U.S. District Court, District of Massachusetts, at our Council meeting. Having previously worked for U.S. Senator Ted Kennedy, and as a Magistrate and Massachusetts Superior Court Judge before her nomination to the federal bench, Judge Saris spoke with a wealth of knowledge from both legislative and judicial, as well as state and federal, perspectives.

In addition, she chairs the U.S. Sentencing Commission, an independent agency, established within the federal judicial branch in 1984, that’s tasked with establishing sentencing guidelines and practices for federal courts, advising and assisting Congress and the executive branch in developing effective and efficient criminal policy, and collecting, analyzing, researching, and disseminating a broad array of information on crime and sentencing issues to all branches of government, academia, and the general public.  It is bipartisan by design in order to consider all viewpoints and to effectively gain buy-in from all legislators.

The Commission was a driving force behind the 2010 Fair Sentencing Act, which made a number of reforms to federal sentences for drug offenses, most notably reducing the disparity between sentences involving crack and those involving powder cocaine.  Since the Act’s enactment, the Commission has studied outcomes, finding that the recidivism rate is no higher for people released from prison up to two years earlier than they would have been under the old sentencing regime.  In addition, the rate of guilty pleas and plea agreements remained the same, suggesting shorter sentences did not have a negative effect on prosecutorial bargaining power or result in more trials.

June

In the middle of the month, we joined in the debate on online access to court records.  The Trial Court Public Access to Court Records Committee held a public hearing on June 15 to receive the views of interested individuals and organizations with regard to the issues surrounding public access to court case files, including their availability on the Internet.  The BBA weighed in with a letter urging the Committee to devise a rule providing broad online access to court dockets and documents, especially as a means to assure access to justice for pro se litigants, who had been barred from accessing the court’s then-recently updated website, www.masscourts.org, which was permitting only attorneys to see case information.  The Court has since expanded access to this website and the Committee continues its work on the rules.  We look forward to continuing the discussion on this issue in the coming months as the Committee completes its work.

At the end of the month, the Joint Committee on the Judiciary held a hearing on probate and family issues, which included a number of bills of interest to the BBA, specifically to our Trusts and Estates and Family Law Sections.  (Read more about the hearing and see pictures here.)

We provided testimony on three of the fifty-one bills on the agenda:

  • H1291 – An Act making Corrections to the adopted children’s act (read our testimony here)
  • S746 – An Act relative to the UCCJEA (read our testimony here)
  • S748 – An Act relative to the elective share of surviving spouses (read more about our history with this issue here)

Next week, we’ll catch you up on the rest of 2015…

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Everything You Need to Know for Walk to the Hill

It’s the most wonderful time of the year!  And while the holiday season is nice, we are, of course, referring to Walk to the Hill, the annual lobby day for civil legal aid.  Scheduled for Thursday, January 28, it may seem like a long way off, but it’s really right around the corner.  For those of you who don’t know, here’s a primer on the event…

Who

Sponsored by the Massachusetts Legal Assistance Corporation and the Equal Justice Coalition, the event is attended by over 500 attorneys.  There will be speeches from BBA President Lisa Arrowood, the president of the MBA, legal aid clients, and at least one state leader (in the very recent past this has included SJC Chief Justice Ralph Gants and Attorney General Maura Healey).  There will also be legislators … lots of them.

What

The event begins with registration and speeches in the Great Hall.  Get ready to be inspired!  It is impossible not to be moved when hearing about the impact of legal aid on the lives of so many people in need.  After a boxed lunch, it’s on to legislative meetings.  Don’t know your elected representatives?  That’s perfectly fine – look them up here and make the introduction.  Tell them how much legal aid means to you and why it is important that they support this year’s ask: a funding increase of $10 million, for a total of $27 million in FY17.  This fact sheet provides some strong arguments you can use to make your case.

If you are ready for a deeper dive, check out Investing in Justice, the 2014 report of the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts that laid the foundation for our campaign by  conclusively demonstrating that:

  • 64% of individuals who qualify for legal aid (for a family of four, that means an income of less than $30,000 annually) and make it through the wait (roughly 50% of callers give up after being on hold for hours) are nevertheless turned away, solely due to a lack of adequate funding. Tens of thousands are turned away every year, which is especially concerning in areas of basic need such as housing and domestic violence.
  • Court procedures are bogged down and justice is frequently delayed or denied due to the glut of pro se litigants.
  • For every dollar spent on legal aid in the areas of domestic violence, federal benefits, and housing, the state and its residents see returns of $2 to $5, mostly on back-end savings such as shelter, police, and medical costs.

If you’re a social media buff, we’ve got you covered too.  Fill out an “I Walk…” placard and tweet a picture using the #IWalkforJustice or #WalktotheHill hashtags.  The EJC and others will be actively retweeting the best submissions.

Not going to be around at the end of the month, or live too far away to easily travel to the State House?  Not a problem!  There are plenty of other ways to get involved.  The “Talk to the Hill” movement encourages you to call your elected officials on January 28, or another time, to deliver the same message.  Email is another convenient way to reach out to your State Senator and Representative.  Finally, sign up for action alerts here to get notified of key moments in the budget process and to get access to easy “plug-and-send” emails to officials.  We will be promoting similar alerts on this blog and through your BBA Week email as well, so stay tuned!

When/Where

Thursday, January 28, 2016, from 11:00 am to 1:00 pm in the State House’s Great Hall.

Why

There are no bad reasons to Walk to the Hill.  We encourage you to do some soul searching to find your own.  For many it is the recognition that lawyers play a special role in society and thus have a duty to serve others.  For some it is because they recognize the great work legal aid in Massachusetts does for those in need, helping low-income individuals, the courts, and society at large.  For others it is all about increasing access to justice or following up on their own pro bono efforts.  Check out this Twitter page where dozens, including a number of #MAPOLI stars, shared why they walk.  Heck, it can even be to get a free boxed lunch with 500 of your closest colleagues – the important thing is that you attend and spread the word to your elected representatives.

Many firms get in on the act, with firm captains leading the charge to round up as many partners and associates as they can to attend.  Earlier this week we attended the EJC Captains’ Breakfast, where captains from large and small firms, law schools, and in-house counsel all learned about the budget process, the impact of civil legal aid, and strategies to increase involvement at their firms.

Hines talking

SJC Justice Geraldine Hines Addressing EJC Captains

Thinking of trying to put together a group to attend the Walk?  Here are some great ideas that work:

  • Offer pro bono credit
  • Ask for a commitment – calendar invites are really helpful
  • Get competitive: How does your department stack up against another? How about your firm vs. others?
  • Get personal – don’t just email friends and colleagues, actually talk to them in person.
  • Help your recruits prepare (…by referring them to helpful blog posts, wink, wink) and coordinate the details for them. Oh yeah, don’t forget there is such a thing as free lunch!  AND FREE BREAKFAST TOO!  That’s right, stop by the BBA for some networking, coffee, and breakfast bites before you walk across the street to the State House.

We hope we’ve given you everything you need to know to have a great Walk to the Hill.  We hope you will join us for all the events, and don’t forget to fill out your exit report so we can tally up all the legislative visits and better plan our strategies for the rest of the campaign!  We look forward to keeping you up to date on all the latest developments in the FY17 budget campaign.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Year in Review: BBA Comments

As you have likely gathered if you’re a regular reader of this blog, the BBA had a remarkably productive year on the policy front.  We’ve recently been touting the work of our Amicus Committee, and look forward to following up with you about a couple of cases with oral argument either recently heard (Fisher v. University of Texas at Austin II in the US Supreme Court on December 9) or fast approaching  (Commonwealth v. Wade in the SJC on January 11).  However, this post is devoted to our Sections and all the comments they submitted to various court working groups and committees in 2015.

For those of you unfamiliar with this process, the courts at any time have various working groups and standing committees considering changes to various rules of practice and procedure.  When these groups compose a draft rule, they generally post the proposed revisions online and invite comment from interested parties.  We know from experience that they appreciate our efforts to gather practitioners’ opinions and take them very seriously, so the BBA works with all its Sections to solicit and facilitate their comments and sends them to the courts on behalf of the Sections.

It is important to note that the BBA itself often does not take a position in these instances.  The comment process is an opportunity for members of the bar to be heard and we want to make sure that the court can benefit from all the differing points of view on an issue.  Therefore, although each submission is approved by the BBA Council, informal Section comments do not receive as thorough a vetting as full BBA policy positions, because they do not require a general consensus of the bar or continued BBA advocacy.

Here are some of this year’s highlights:

  1. That an amended jury instruction is appropriate and the provisional instruction generally assists jurors in considering eyewitness identification issues
  2. That the proposed instruction is appropriately based on five generally accepted principles regarding eyewitness identification

Their comments also included a number of items on which there was no consensus, ranging from broad policy issues to specific language suggestions.

In November, the SJC released its new jury instruction on eyewitness evidence, which will be given “upon request of a party, before opening statement or immediately before or after the testimony of an identifying witness.”  The Justices noted that the instruction will need to evolve with new developments in the science of identification and requested that the Standing Committee on Eyewitness Identification continue to review the issue and recommend further changes as needed.  Here is the full statement from the court.

  • The BBA’s Ethics Committee, Delivery of Legal Services, and Litigation Sections also provided extensive comments on the proposed revised Code of Judicial Conduct.  The BBA itself provided comments as well, noting its support of Rule 3.7, encouraging judges to participate in legal, educational, religious, charitable, fraternal, or civic organizations, and Rule 2.6(A), giving judges guidance on their role in assisting self-represented litigants.  The Delivery of Legal Services Section also voiced support for Rule 2.6(A).  The Ethics Committee provided extensive comments on many of the rules — which the Litigation Section generally agreed with, adding a note that they hoped the expansion of judges’ ability to accept free or discounted legal services would result in a corresponding expansion of the public reporting requirement.

In September, the BBA also voiced its support for proposed amendments to SJC Rule 3:11, which provides a new role for the SJC in reviewing these judicial ethics issues.  The rule would give the SJC the new power to both issue Ethics Advisory opinions to clarify the meaning and application of and provision of the CJC and to expound upon provisions of the Code that are of broad interest and application.  It gives the SJC power to essentially serve as an appellate body for decisions by the Committee on Judicial Ethics (CJE), and extends the ability to request Ethics Advisories to any judge or lawyer, whereas only judges can request CJE opinions.

In late October, the SJC released the revised Code of Judicial Conduct and reported the adoption of the revised SJC Rule 3:11.  The code and rule will take effect January 1, 2016.  We were pleased to see that many of the Ethics Committee’s comments incorporated into the Code and the sections we supported were included without substantive changes.

The BBA’s Real Estate and Bankruptcy Law Sections both provided comments to the Trial Court.  The Real Estate Law Section was satisfied with the standing order as an appropriate measure to address unnecessary confusion in the litigation process.  The Bankruptcy Law Section was concerned that the proposed standing order did not provide a good-faith exception.  They discussed possible situations when it would be more beneficial to bypass the address verification process in order to expedite the matter and provided the Trial Court with a couple of possible language edits to achieve this goal, one for a show of cause and the other based on time.

The Trial Court approved the standing order in late June 2015, and it became effective October 1st.  The final version does not incorporate the changes proposed by the Bankruptcy Law Section.

  • In July, the Litigation and Real Estate Sections commented on the proposed BMC and District Court procedural amount change. The shift would increase the minimum qualifying amount for Superior Court cases from $25,000 to $50,000, an increase that roughly corresponds with inflation since the qualifying amount was last changed in 1986.  Both Sections were concerned about the implications of the change, especially with how the District Court and BMC could handle the attendant influx of additional civil cases.  They also considered alternative types of jurisdictional splits, based possibly on case complexity or subject matter.

Perhaps in response to these comments, the Court has put this issue on hold as it works out how best to implement this change.  As the Chief Justice explained in his State of the Judiciary address, “We have heard loud and clear the comments furnished by the MBA and BBA when we aired the proposal to increase the procedural limit in civil cases in the District Court and BMC from $25,000 to $50,000 … [O]nce [dedicated civil] sessions are up and running, and have demonstrated that they can efficiently handle these civil cases, then we will reopen the idea of increasing the procedural limit to $50,000.”

The BBA noted its support for the change, and expressed its hope that all involved personnel would be adequately trained and that the rules would be uniformly enforced by all DOC facilities.  The BBA also encouraged EOPSS to consider extending application of the rule to county correctional facilities as well to assure uniform proper treatment of attorneys at all correctional institutions.  The Criminal Law Section was also largely supportive, individual members shared some concerns, such as with the revised rules’ record-keeping requirements and the potential limits it would place on correction officers.

Shortly after sending our comments, we attended a hearing on the revised CMR, where individuals and organizations were given the opportunity to publicly voice some of their own concerns before a panel of EOPSS and DOC representatives.  Like the BBA’s comments, most groups were generally supportive, but also raised concerns.  Read more about the hearing here.

  • In September, our Criminal Law, Delivery of Legal Services, and Family Law Sections all commented on the proposed revised SJC Rule 1:24, which addresses personal identifying information in certain court filings and documents. The SJC Standing Advisory Committee on the Rules of Civil and Appellate Procedure drafted the new rule based on the nonbinding Supreme Judicial Court Interim Guidelines for the Protection of Personal Identifying Data in Publicly Accessible Court Documents that took effect in 2009.  The proposed new rule would apply in the trial and appellate courts and would govern documents filed in civil and criminal cases as well as documents issued by the courts.  It differed from the Interim Guidelines most significantly by authorizing a judge to impose sanctions for non-compliance.

The Comments are generally supportive of the revisions, though they express some concerns about the addition of sanctions and their potential impacts on criminal law.  In addition, consideration of these proposed amendments prompted a second round of discussions on the larger issue of online access to court records.  We anticipate the opportunity to comment on a forthcoming rule on this issue, and are eager to take part in the debate.

While the Ethics Committee was generally supportive of the change, their comments expressed some concern about the removal of the local-counsel piece.  Though the Massachusetts rule and notice to comment explanation seem concerned only with protection of the company using foreign counsel, the Ethics Committee noted that other parties to litigation as well as the courts could benefit from the requirement for consultation with local counsel.

  • This month, we are working on finalizing comments on proposed revisions to the Massachusetts Rules of Civil Procedure (MRCP), Rules 26(b) and 1. The revisions largely track those recently adopted in the federal rules of civil procedure to include reference to proportionality in discovery.  The goal appears to be streamlining discovery and assuring that costs are kept in proportion to the overall case.  Though our comments are not quite finalized, a sneak peak at their content reveals that though many practitioners feel that the changes are minor in nature and a number were supportive, others had concerns that they could result in increased discovery motions, thus having the opposite of their intended effect.

This conclusion was similar to the implications shared at our recent program on the changes to the federal rules.  The presentation materials from this program provide some more insight on the origins and development of this proportionality language.

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The presenters, BBA Council member Chris Morrison, Jones Day, Gregory Bombard, Duane Morris, James Berriman, Evidox, and Paula Bagger, Cooke Clancy & Gruenthal, LLP, seemed in agreement that while the changes to federal discovery Rule 26 could have some implications for practice, revisions to other sections would likely have larger implications.

Thanks to all the Sections and Committees for your work on these comments.  We will continue wrapping up the comments on MRCP Rules 26(b) and 1 and will keep you informed on how these and other feedback are incorporated by the Courts into their rules.  We look forward to continuing to be part of these sorts of discussions in the future and thank the courts and agencies for making this a thorough and inclusive process.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBA Brief Fights for DNA Testing and Attorney-Client Privilege

We are pleased to be able to once again report on the great work of the BBA’s Amicus Committee.  In the last few months alone they have helped achieve access to justice for abused youths, worked to secure a right to counsel in parental guardianship actions, opposed improper attorney sanctions, and defended race-conscious college admissions policies as a means to assuring a more diverse bar.  And in the latest example of their tireless efforts, last week we filed a brief in the case of Commonwealth v. Wade (SJC-11913), urging the Supreme Judicial Court (SJC) to correctly interpret the Commonwealth’s new post-conviction DNA testing law and defending attorney client privilege.  This case holds particular importance for the BBA as we have a long history of protecting attorney client privilege and were also instrumental in drafting and advocating for the DNA testing law at issue here.

The case first came to our attention over the summer and our interest only intensified when the SJC requested amicus briefs in late October asking:

Whether, in order to obtain postconviction DNA testing under G. L. c. 278A and specifically, in order to support a finding under c. 278A, § 7 (b) (3), that the evidence or biological material has not been subjected to the requested analysis for any of the reasons in [c. 278A, § (3) (b) (5) (i)-(v)] it is sufficient for the defendant to establish that the requested analysis had not yet been developed at the time of the conviction, see c. 278A, § 3 (b) (5) (i), or whether the defendant must also show that a reasonably effective attorney would have in fact sought the analysis had it been available.

After extensive discussions in our Amicus Committee and Council, we couldn’t be happier with the resulting brief drafted by a team of lawyers from K&L Gates, LLP.  Former BBA Council Member and Chair of the BBA Drug Lab Crisis Task Force, Mike Ricciuti led the team, which also consisted of Kathleen Parker and Patrick McCooe.

The brief makes two major points – that the lower court judge erred in interpreting the requirements of G.L. c. 278A and, in doing so, erroneously forced counsel for the defendant to violate attorney-client privilege.  The BBA has a particular interest in Chapter 278A because it is a product of our advocacy, stemming back to our Task Force to Prevent Wrongful Convictions, whose 2009 report, Getting it Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts, included a draft law nearly identical to what was eventually enacted in 2012.  The purpose of the law, as best articulated in that report, is to “remedy the injustice of wrongful convictions of factually innocent persons by allowing access to analyses of biological material with newer forensic and scientific techniques.”

Subsection 3(b)(5) of the law allows for new forensic testing if a defendant can show, inter alia, that the evidence has not already been subjected to the requested analysis.  It sets out five reasons why it would be justifiable for the requested analysis not to have been pursued, such that it should be pursued now.  These prongs are identical to the recommendation contained in Getting It Right, except that the report recommends putting “or” after every clause, whereas the enacted text uses semicolons and then puts “or” before the last prong. The significance of the fact that both approaches emphasize the disjunctive nature of the list of prongs will become evident shortly.

(i) the requested analysis had not yet been developed at the time of the conviction;

(ii) the results of the requested analysis were not admissible in the courts of the Commonwealth at the time of the conviction;

(iii) the moving party and the moving party’s attorney were not aware of and did not have reason to be aware of the existence of the evidence or biological material at the time of the underlying case and conviction;

(iv) the moving party’s attorney in the underlying case was aware at the time of the conviction of the existence of the evidence or biological material, the results of the requested analysis were admissible as evidence in courts of the Commonwealth, a reasonably effective attorney would have sought the analysis and either the moving party’s attorney failed to seek the analysis or the judge denied the request; or

(v) the evidence or biological material was otherwise unavailable at the time of the conviction.

Background

In 2014, the defendant sought DNA testing pursuant to c. 278A in an attempt to overturn his conviction, arguing, under the first prong, that the DNA testing he then requested had not been performed in 1997 because it had not yet been developed.  He also initially made an argument, under the fourth prong, that a reasonably effective attorney would have sought the analysis.  The judge, however, ruled that the statute required the defendant to show the “actual reason” that no DNA testing was requested in 1997, even though the test being requested was not then available.  In order to determine the “actual reason,” the judge, over objection, compelled the testimony of the defendant’s trial attorney. The defendant had not waived attorney-client privilege or submitted any affidavit from his trial attorney, but the Commonwealth argued that any time a movant pleads that his trial attorney was not reasonably effective, he has waived attorney/client privilege as to all communications with trial counsel.

The defendant sought interlocutory relief from this decision, and, in a G.L. c. 211,§ 3, memorandum, SJC Chief Justice Gants held that the Commonwealth could subpoena the trial attorney but his testimony would be limited by attorney-client privilege and any waiver by the defendant.  At the hearing, when the Commonwealth began questioning the trial attorney about privileged communications, the defendant waived the “reasonably effective” prong, insisting that he could still meet the statutory requirements on the unavailability of the requested DNA analysis at the time of his conviction, under the first prong.

The defendant argued that the Commonwealth was asking the trial attorney about privileged communications, which the defendant had not waived, and that abandoning the “reasonably effective” prong obviated the need for his testimony.  The motion judge disagreed, finding that the defendant had waived his attorney-client privilege.  Although the trial attorney repeatedly refused to answer the Commonwealth’s questions, citing privilege, he eventually relented under the threat of contempt by the court.

The motion judge ultimately concluded that it had been a strategic decision not to request DNA testing at the time of trial.  The motion judge rejected the defendant’s argument that, to get testing he need only show that the analysis was not performed at the time of his conviction “for any” of the five alternative reasons under G.L. c. 278A, § 3(b)(5).

BBA Amicus Brief

Our amicus brief argues that the judge misinterpreted Chapter 278A.  Once the defendant demonstrated that the requested analysis had not yet been developed at the time of conviction, he satisfied the requirements of § 3(b)(5) and did not need to support any other prong of the test.  The use of “or” in the list of prongs demonstrates that the Legislature intended a defendant need only identify one reason the testing had not yet been done.  The statute contains no requirement that the defendant must show a “primary cause” or “actual reason” why DNA testing was not conducted at the time of trial.  Furthermore, the brief argues that the judge misunderstood § 3(b)(5)(iv): The test is not to determine why the defendant’s attorney did not seek a different type of DNA testing at the time of trial, but rather, whether a reasonably effective attorney could have sought the requested analysis.  Here, a reasonably effective attorney could not have sought the requested analysis because the requested analysis did not exist at the time of the conviction.

The brief also argues that the trial judge’s erroneous focus on the “primary cause” that DNA testing was not pursued at trial resulted in the “deeply flawed conclusion” that the defendant had waived attorney-client privilege.  The brief makes clear that there was no express or implied waiver of the privilege and the trial judge’s interpretation threatens to undermine the effectiveness of Chapter 278A, which calls for an objective test of what a reasonably effective counsel could have done, and not a subjective analysis of what trial counsel actually did.  If the statute were to be interpreted as the trial judge espouses, with both the “primary cause” and subjective analyses, it would frustrate the purpose of the law and chill access to justice, potentially denying wrongfully-convicted individuals a pathway to establishing their innocence.

The case is scheduled for standby oral argument on Thursday, December 10.  If it is not heard that day, it will be argued on Monday, January 11th.  We look forward to watching the broadcast and reading the decision in the coming months and will, as always, keep you updated on how the case is decided.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Giving Thanks for Civil Legal Aid – MLAC at BBA Council

As we gear up for the coming state-budget season, and prepare once again to advocate for civil legal aid, the BBA was pleased to welcome Lonnie Powers, Executive Director of the Massachusetts Legal Assistance Corporation (MLAC), Deb Silva, Director of the Equal Justice Coalition (EJC), and Lauren Song, Housing Attorney with Greater Boston Legal Services to its November Council meeting.  Powers began his presentation with a brief history – established in 1983, MLAC’s mission has always been to ensure that low-income people with critical non-criminal legal problems have access to legal information, advice, and representation.  It is the largest funding source for civil legal aid program in Massachusetts, distributing money to fifteen legal aid organizations throughout the state, largely based on the regional population of income-eligible people.

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MLAC Executive Director Lonnie Powers

The BBA has long taken pride in supporting MLAC’s work, both through our partnership in the EJC and also through our funding advocacy.  This effort resulted in the release of the BBA’s Investing In Justice report in late 2013 following nearly 18 months of study by the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts.  The report revealed that 64% of income-eligible individuals who seek legal aid are turned away due to lack of resources.  This circumstance has a significant impact, not only on these individuals, but also on the justice system as a whole.  A survey of judges conducted by the Task Force revealed that roughly 6 out of 10 judges felt that a lack of representation negatively impacts the courts’ ability to ensure equal justice.  Many also reported that the increasing number of pro se litigants has bogged down court procedures.  Finally, the report demonstrated that increased investment in civil legal aid can result in cost savings to the Commonwealth of anywhere from $2 to $5 for every $1 invested.  So not only is increasing funding for legal aid the right thing to do, it is also the fiscally responsible thing to do.

With this report as the basis for our advocacy, we were pleased when the Legislature demonstrated their support for legal aid, and their understanding of the Task Force report’s findings, by appropriating $2 million in additional funds, bring the total MLAC line item to $17 million – a substantial increase in a year when the overall budget growth was otherwise quite constrained.  Powers revealed that the MLAC board approved a request this year of an additional $10 million, to bring total MLAC funding to $27 million.  He explained that the $2 million increase enabled MLAC to handle almost 1,100 more cases to the benefit of some 4,300 people.  With potentially almost one million people qualifying for legal aid, there is still a very long way to go to serve the need and bring down that nearly-2/3 turn-away rate, but we are headed in the right direction.  Furthermore, this requested $10 million investment will likely return at least $20 million in savings by avoiding back-end costs such as police, shelter, and medical expenses to the state in domestic violence, homelessness, and other cases.

Lauren Song spoke next.  She is an attorney for the GBLS Housing department, which she describes as requiring near-24/7 work.  She told a story of her representation of the families and individuals affected by an East Boston building collapse.  She explained her calm reaction to a text late one Saturday afternoon – her experience with the current homeless crisis in Boston makes this sort of thing a routine occurrence.  In this case, 22 adults and 9 children from 11 households were evacuated when the building collapsed.  Instead of repairing the building to let these people continue living there, developers attempted to evict them and turn the buildings into luxury condos.  GBLS is fighting for their rights – to return to their homes and, in the meantime, to gain shelter housing.
MLAC at Council cropped 1Deb Silva then presented on the EJC campaign.  Walk to the Hill, the annual lobby day for civil legal aid will take place on January 28th at the State House.  Many law firms send teams, and hundreds of lawyers visit the State House to hear speeches from government leaders and speak to their elected officials about why civil legal aid is important.  Here is our write-up from last year’s program.

The EJC campaign is also responsible for broader advocacy, such as sign-on support letters from law firm managing partners, general counsels of major Massachusetts businesses, and law school deans.  It also solicits support from a coalition of individuals and organizations, including social services providers that refer clients to legal aid and recognize its importance.  This year, they are also working on putting together teams from local law schools to participate in the walk.  Finally, they are facilitating the involvement of local bar associations, particularly in the western part of the state for a “Talk to the Hill,” where lawyers who live and work too far from the city to participate in the walk, call their elected officials.

We look forward to all of these efforts coming together and hope that they will achieve the BBA and MLAC’s shared goal of an additional $10 million in funding for civil legal aid.  We hope you will join us at this year’s Walk to the Hill, and that you will be on the lookout for various budget alerts from January through July during the lengthy budget process.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association