Monthly Archives: September 2014

Representative Tsongas at the BBA

cropped tsongas

On Tuesday, U.S. Representative Niki Tsongas visited the BBA to speak about her efforts to eliminate sexual assaults within the military.  Representative Tsongas is the Ranking Member of the House Armed Services Subcommittee on Oversight and Investigations.  She is one of the leading voices in the country on this pervasive problem, the scope of which has only recently come to light.

While it is estimated that 26,000 service members experienced unwanted sexual contact in 2012, only about 13.5% of military sexual assaults get reported – a figure that is even lower than reporting rates among the general population.  The problem is not limited by gender or sexuality.  Furthermore, victims are often traumatized multiple times – first with the initial assault, again when they file a formal report with sensitive and personal information, and often a third time when they face isolation, retaliation, and the frustration of being ignored.

Military sexual assault concerns have become so intrusive that Representative Tsongas often speaks of meeting a military nurse who had been deployed several times to Afghanistan and Iraq yet considered herself more at risk of being assaulted by fellow service-members than harmed by enemy combatants.  This nurse was so concerned that she kept a knife tucked in her waistband to protect against potential attackers from her own armed services.

In response, Representative Tsongas has drafted a number of bills, some of which have been enacted, to help the military respond from within, give support to survivors, and help victims seek justice.  She also serves as co-chair of the Military Sexual Assault Prevention Caucus, which she established with Congressman Mike Turner.  The Caucus holds regular hearings, travels to military bases, and receives briefings from members of the armed forces and activist organizations to better assess the problem and devise solutions.

With the help of leaders on the issue like Representative Tsongas, the shocking prevalence of sexual assaults within the military has garnered much attention from Congress.  And the public focus that resulted may be responsible for a sharp spike in reports from service members this past year, as victims become more comfortable speaking out against their abusers – indicating a possible turning point for a military culture that for too long has encouraged silence.

In her talk to the BBA, Representative Tsongas listed the keys to addressing the issue of military assault: patience, persistence, and bipartisanship.  She continues to be a leader in all three.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Learning and Doing – BBA Government Relations Department Update

It’s been a busy past few weeks in the BBA’s Government Relations department.  Although the legislature is not in formal session, we’ve had plenty of activities and events to keep us occupied.  Here is a rundown of some of the recent goings-on.

Inspiring Public Service Leader Eugene O’Flaherty speaks to PILP


A couple weeks ago we attended a meeting of the BBA Public Interest Leadership Project (PILP), for an intimate discussion with former legislator and current City of Boston Corporation Counsel Eugene O’Flaherty.  The presentation gave us a great opportunity to hear about the life and career of one of Boston’s most well-known public-service attorneys.

Eugene O’Flaherty spoke candidly and at length about his upbringing, legal work – often as a bar advocate, legislative career, and current role as Boston’s Corporation Counsel.  When he was 26, O’Flaherty decided to run for a vacant State Representative seat in his district.  Despite the fact that his opponent was a well-established and respected member of the community who vastly outspent him, O’Flaherty won the election.  He credits this first victory to outworking his opponent – knocking on doors and speaking first-hand with the people in his district.

He was subsequently re-elected nine times, serving for 19 years, 12 of them as Chair of the Judiciary Committee.  O’Flaherty described chairing this Committee as both a challenge and a triumph.  He was pleased at his appointment to the post in 2002, but noted that his reaction may have demonstrated naiveté.  The Judiciary Committee regularly considers many of the most contentious bills, and O’Flaherty explained that his service made him both appreciate the challenge of the position and grow a thick skin.  He cited defeating the reintroduction of capital punishment as his greatest success in this role.   O’Flaherty also noted close ties to his community as a driver of his success, explaining that his constituents tended to be highly politically involved and proactive in identifying issues of importance for him to champion.

This year, O’Flaherty made a jump to working as Corporation Counsel at the repeated requests of Mayor Marty Walsh, a close friend since the time they joined the Legislature.  He told PILP about his adjustment – thus far it has been both demanding and gratifying, but certainly no small task to limit the city’s legal exposure across all areas of law, keep the city running smoothly, and help the Mayor implement his vision.

One thing is for certain, Eugene O’Flaherty is no stranger to serving the public and getting results in the face of great challenges.  The PILP members were energized by his presentation and continued the discussion with multiple questions about his life and extensive career accomplishments.  He ended his presentation by challenging PILP members to get involved with local government and the City of Boston by serving on one of its Boards and Committees.  We learned a lot about a respected lawyer and public servant and were pleased to watch him inspire the next generation of public interest lawyers in Boston.

 Leaders in the Fight against Opiate Addiction Come Together

The conversation from one of our recent blog posts continued in early September at “In Our Own Backyard: A Panel Discussion on the Opiate Epidemic in Massachusetts.”  This discussion, hosted by The United States District Court, District of Massachusetts and held at the Moakley Courthouse, featured two panels of distinguished speakers sharing their work, observations, and ideas about how to solve the opiate crisis in Massachusetts.

The first panel featured Boston Mayor Martin J. Walsh, Representative Randy Hunt, Doctor Alexander Walley, and U.S. District Court Judge Leo T. Sorokin.   The second panel consisted of Quincy Police Lieutenant Patrick Glynn, Senior U.S. Probation Officer Andrew Laudate, Lahey Behavioral Health Services Representative Kevin Norton, Boston Medical Center Representative Colleen LaBelle, and Learn to Cope, Inc. founder Joanne Peterson.  Here are some of the major points they discussed:

  • The key to solving the opiate addiction crisis is combining enforcement, education, and treatment.
  • Education must start for children in elementary school in addition to being generally available for everyone, especially parents.
  • More first responders should be trained to administer Narcan, a drug which can reverse the effects of an opioid overdose.
  • Police and drug enforcement officers need to provide facilities for people to deposit their un-used prescription pills to avoid their misuse or theft.
  • The Massachusetts prison system would better serve recovering addicts by shrinking or eliminating “queues” – to receive treatment. A great deal of data corroborates the fact that addicts who assent to treatment are far more successful if they receive that treatment immediately rather than having to wait for weeks or even months to begin.
  • The state needs more treatment facilities and we must find ways to overcome the financial shortcomings facing these institutions.
  • There are currently some effective programs that merit continuation and possible expansion such as the District Court’s CARE program whereby judges meet with drug addicts undergoing treatment to monitor their progress and assess the need for small responsive penalties. This program has a proven track record, allowing judges to be most responsive to a person’s needs and immediately reactive to potentially negative or dangerous behavior that could lead to recidivism or further drug abuse.

Civil Legal Services Achieve Breakthrough

We recently learned about a major SJC ruling that lowered the standard for defendants to have their case records sealed and giving judges further guidance on this issue.  The ruling is the result of the hard work of Greater Boston Legal Services’ (GBLS) CORI & Re-entry Project.  It will help individuals who are burdened by their criminal record, which can interfere with their ability to reintegrate in society by adding hurdles to tasks such as securing housing or a job.

Under the previous regime of the Commonwealth v. Doe case, litigants, who were often unrepresented, had to prove that: (1) the value of sealing their records clearly outweighed the constitutionally-protected value of the record remaining open to the public, (2) that there was a compelling state interest in sealing the record, and (3) that there was a risk of specific harm from the record.  Otherwise judges had little guidance on the practice of record sealing.

The new case, Commonwealth v. Pon, lowers the record sealing standard to “good cause” and provides additional guidance for judges, advising them to consider the government’s interest in reducing recidivism, facilitating reintegration, and ensuring self-sufficiency by promoting employment and housing opportunities for former criminal defendants.  Thus, future litigants need only share a present or foreseeable future disadvantage related to their CORI for the court to seal the record.  MassLegalHelp offers assistance by way of information and forms to those seeking to seal their criminal records under the new ruling.

In all, the last few weeks have kept us busy, just the way we like it.  We will continue to keep you in the know on all of our latest news and events.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

A Retrospective – The BBA and Busing, 40 Years Later

As another school year begins, we pause to consider a tumultuous period in Boston history.  Forty years ago this week, the eyes of the nation were on the Boston public school system as it implemented an extremely controversial desegregation and busing plan. Locals who lived through those days will likely never forget them, but many of us are too young to remember.  The anniversary of this time has once again brought the issue to public light.  The Boston Globe’s articles and brief documentary and WBUR’s oral history vividly evoke the tenor and events of those not-so-distant days, when students were bused to different areas of the city to fulfill the goals of the Court-approved desegregation plan.

The BBA played a prominent leadership role in helping the city understand the legal principles at play in this episode.  In 1974, following Judge Arthur Garrity’s decision in Morgan v. Hennigan, then BBA President and 2014 Lifetime Achievement Honoree, Ed Barshak, appointed a Committee on School Desegregation.  The Committee’s report, “Desegregation: The Boston Orders and Their Origin,” explained the power of the federal court, discussed the content of the opinion and desegregation orders, and provided a list of various resources available for further explanation.

Some key points from our Committee Report:

The District Court’s power is traced to Article III of the U.S. Constitution, which gives Congress the power to create federal courts and provides the President with the power to appoint federal judges for life-long terms.  Federal courts have the power to resolve disputes and order appropriate remedies, but are also limited in many ways including in their jurisdiction to hear cases and their enforcement powers.

The Equal Protection Clause prohibits states from denying equal protection of the law to any person, meaning that no government organization in any state can pass a law or regulation which arbitrarily denies state citizens benefits given to others.  By 1974, the U.S. Supreme Court already dealt with a number of cases on public school segregation, most famously Brown v. Board of Education, and established precedent that intentional segregation by a school board, whether or not state law specifically required it, violated the Equal Protection Clause.

The power of the federal court and importance of the Equal Protection Clause play important roles as well in Morgan v. Hennigan, the Boston school desegregation case.  The complaint alleged that the Boston School Committee intentionally brought about and maintained racial segregation through many of its policies.  The School Committee agreed that schools were in fact segregated, but argued that this was due to residential segregation and the policy of schools serving local neighborhoods.  When Judge W. Arthur Garrity examined the facts at hand, he made the following findings:

  1. Mostly white schools were badly overcrowded while mostly black schools had excess space, yet the School Committee did not transfer students to even out the numbers.
  2. The School Committee intentionally refused to change existing districts to make schools more racially even.
  3. The school system “feeder” program had the intended and actual consequences of pushing students from predominantly black or white elementary and junior high schools into high schools that were homogenous along corresponding racial lines.
  4. The allegedly open transfer policy was actually used as an aid to white students to transfer out of predominantly black schools.
  5. Teachers were also segregated by race.
  6. Three examination schools were predominantly white, while two trade schools were predominantly black.

Ultimately, Judge Garrity determined that the School Committee intentionally and purposefully created and maintained a segregated school system in Boston.  The Court’s remedy was the installation of a desegregation plan which included the aforementioned busing arrangement.

When the plan was initially met with protests and a boycott by some white students, the Governor Francis Sargent stepped in to enforce the court’s remedy, bringing in the State Police and putting the National Guard on alert.  It would take the city some time to devise further phases of the desegregation plan, and far longer for the public to come to terms with them, but the BBA recognized right away that Judge Garrity’s decision was changing the city for good.  In fact, the BBA honored him with the Public Service Award in 1975, just one year after the controversial decision.

The BBA is proud of our long history of advancing diversity and inclusion, not just in the legal profession, but in the community at large.  This commitment remains a cornerstone of the BBA mission, as does our involvement with Boston’s public schools, which continues today through public service initiatives such as the BBA Summer Jobs Program and M. Ellen Carpenter Financial Literacy Program.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Justice Prevails, At Long Last, in North Carolina Death-Penalty Case

Thanks in large part to the hard work of attorneys from BBA sponsor firm Wilmer Cutler Pickering Hale and Dorr, this week a North Carolina judge exonerated and ordered the release of half-brothers Henry Lee McCollum and Leon Brown based on DNA evidence.  This outcome reaffirms the BBA’s four-decade-old position opposing capital punishment and highlights the importance of recent work by the BBA on the death penalty and on wrongful convictions. 

McCollum and Brown spent more than 30 years in prison after being pressured into false confessions admitting to the rape and brutal murder of 11-year-old Sabrina Buie when they were 19 and 15 years old, respectively.  Richard Johnston of WilmerHale represented them in their successful appeal, alongside colleagues Jared Cohen, Andrew Dulberg and Steven Finizio. 

The judicial process that landed the brothers in prison – and McCollum on death row – showcased a litany of systemic problems that the BBA has been discussing for some time and made subjects of recent reports, including a failure by the prosecution to turn over required evidence that should have led investigators to a potential suspect who lived near the place where the victim was found, had a history of sexual assaults, and was convicted of a remarkably similar murder that occurred weeks later.

The brothers, both mentally-disabled, confessed after lengthy interrogations that took place in the absence of any lawyer or parent and with no audio or video recording – something a BBA task force on wrongful convictions warned against.  But it was long-overdue testing of DNA evidence that ultimately cleared the two men and pointed to the overlooked suspect – a result made more likely in Massachusetts under a 2012 law, which the BBA fought for, expanding access to forensic testing.

The New York Times, featured the case on the front page, following up with an editorial stating that it “provides a textbook example of so much that is broken in the American justice system” and offers “further evidence (as though more were needed) that the death penalty is irretrievably flawed as well as immoral.”  The BBA’s Death Penalty Working Group released a report in December 2013 compiling that evidence, and extending our opposition to the death penalty to include federal cases, and updating our reasoning for this stance.  The BBA’s opposition to capital punishment stems from three main points:

1. The inevitability of errors in criminal cases makes it overwhelmingly likely that reliance on the death penalty will lead to the execution of innocent defendants.

In the 40 years since the BBA filed its first death penalty amicus brief, more than 143 wrongfully convicted defendants on death row have been exonerated.  This figure is unsurprising given the findings of the 2009 BBA Task Force to Prevent Wrongful Convictions, whose report, “Getting it Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts,” identifies the most common sources of wrongful convictions and makes many specific recommendations concerning the way police should conduct identification procedures, interviews of witnesses and suspects, post-conviction relief and forensic science, and standards of discovery, trial practice, and defense.

2. In practice, the death penalty has a disproportionate impact on members of racial and ethnic minorities.

The Death Penalty Working Group found that it is sought by prosecutors, and applied by juries, far more often when the victims are white than when they are members of minority groups.  Defendants in death penalty cases are more likely to be members of minority groups than white, as were the two wrongfully-convicted brothers from North Carolina.

3. Death penalty prosecutions are more expensive, more subject to prolonged delays, and unlikely to produce a different result than cases where the prosecution seeks life without parole.

Death penalty cases take longer and cost more than other forms of justice.  The median cost of defending a federal death-eligible case is eight times higher if the Department of Justice seeks the death penalty.  Although total costs are hard to estimate, a study based on a single 2013 death penalty case pegged the total expense at $10 million — considerably greater than in non-capital cases, even factoring in the cost of incarceration for life.  Capital punishment simply puts a remarkably high economic cost on society.

Thus, the BBA comes to its position through a close analysis of the basic facts: Error is inevitable, the death penalty is exorbitantly expensive for society, and racial and ethnic minorities bear the brunt of its effects.  We are pleased that justice was served for Lee McCollum and Leon Brown — albeit 30 years late — but it underscores our opposition to the death penalty and our commitment to “getting it right” in the first instance. 

The man linked to the Buie killing by DNA evidence is currently serving life in prison (commuted from a death sentence, as it happens) for another crime.  But as the BBA’s task force stated in its report on improving the accuracy and reliability of the justice system, “For every innocent defendant convicted of a crime he did not commit, a truly guilty perpetrator remains free to commit other crimes, and the expectation of the victim and the public that justice will be done goes unrealized.”

– Michael Avitzur
Government Relations Director
Boston Bar Association