Monthly Archives: February 2015

Recent Developments in Capital Punishment

This week, the BBA’s position on the death penalty is back in the news, after BBA President Julia Huston released a statement urging the Department of Justice (DOJ) to take the death penalty off the table in its prosecution of the Boston Marathon bombing case and instead pursue a sentence of life without the possibility of parole.

The BBA has opposed the death penalty for more than 40 years, and just over a year ago we clarified that our position extends to federal cases as well.  In doing so, the BBA ratified the work of our Death Penalty Working Group, which had released a report on the issue entitled “The BBA and the Death Penalty”.

The report found that the inevitability of error makes it overwhelmingly likely that innocent defendants will be executed, and that the death penalty disproportionately affects racial and ethnic minorities. Furthermore, even when the facts of a specific case do not appear to raise questions about innocence or discrimination, pursuit of the death penalty is fraught with delay, inordinately expensive, and offers only the illusion of ultimate punishment.

As you may be aware, there has been significant movement away from the death penalty even in the past year, as demonstrated both in polling numbers that show a sharp drop in support, and in statements and actions from public officials.

Although six states have repealed their capital-punishment laws since 2007, prosecutors may still seek the death penalty in 32 states and in federal cases.  Yet governors in four of those states have taken executive action to place a hold on executions—most recently Pennsylvania’s newly-elected Governor Tom Wolf, who had pledged, as a candidate, to do so.  Many of the other 28 states currently have executions on hold pending state reviews, state litigation, or the Supreme Court’s decision later this year in Glossip v. Gross.

Glossip presents a challenge to the use of Oklahoma’s death-penalty drug “cocktail,” after three botched executions across the country in 2014.  Citing similar concerns, the governor of Ohio last month imposed a moratorium on use of the death penalty there for the remainder of 2015.  And just this past week, out-going U.S. Attorney General Eric Holder called for at least a temporary nationwide halt to all lethal injections.  Complications from the drugs currently used for lethal injection, which is the preferred method of administration in every capital-punishment state, are symbolic of the broken system that the BBA Working Group described.

The AG also expressed his concern about the possibility of the execution of an innocent person, which he called “inevitable,” echoing our Working Group.  Indeed, the steady drumbeat of news stories about prisoners being released from death row, upon findings that they were wrongfully convicted, has been another factor in changing public opinion.

We wrote in this space last summer about two North Carolina brothers who were exonerated after 30 years.  Since then, three men in Ohio had their murder convictions overturned nearly 40 years after a trial in which the prosecution’s case rested chiefly on the eyewitness testimony of a 12-year-old boy, who later recanted and was shown to have been elsewhere at the time.  This brings the confirmed total number of condemned prisoners who have been exonerated from death row to 150 in the past 42 years.

It is in this context that the trial of the accused Boston Marathon bomber begins at the Moakley Courthouse.  At the time of writing, jury selection has been underway for nearly seven weeks, and defense attorneys continue to pursue a change of venue.  Prosecutors from the US Attorney’s Office have said they will ask jurors to impose the death penalty.

Proceeding to a full trial with the death penalty as an option likely means many years of delays and appeals before a death sentence would be carried out, if ever. The BBA Working Group found that appeals last an average of 16 years, and that less than 1% of cases in which the DOJ seeks death actually result in execution.  Such delays would serve to keep the alleged bomber’s name in the news for the foreseeable future.

In the alternative, prosecutors could take the death penalty off the table and explore the possibility of a plea bargain that might result in a life-without-parole sentence.  There is certainly precedent for such an approach, including in the prosecutions of the so-called Unabomber and the accomplice to the Oklahoma City bombing—both of whom have largely disappeared from public notice since their sentencing.

Such an outcome would offer multiple benefits: The entire case could be concluded expeditiously and a definitive sentence imposed, allowing for closure and putting the focus back on continuing to help the victims, their families, and the city heal from this gut-wrenching tragedy.  What’s more, the trial could proceed directly to sentencing, with an opportunity for impact statements from victims and their families, who could confront the defendant and tell him directly how the crime profoundly affected them.

There is still time for the DOJ to seek a plea deal that would obviate the need for a trial and ensure that the defendant lives out his life in the obscurity of a federal super-max prison.  Just today, the nomination of current US Attorney Loretta Lynch to become the next Attorney General advanced to the Senate floor.  We hope that, once sworn in, she will take a fresh look at the case and agree with our suggested approach.

— Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Amicus on the Practice of Law and Attorney Sanctions

It’s been a little while since we last updated you on our Amicus Committee.  As of a few months ago, they were busy discussing the merits of an amicus brief arguing for a right to counsel for indigent parents of minor children in private guardianship actions.  They ultimately decided to recommend that the BBA sign on to a brief supporting this right, which also quoted from three different BBA working group and task force reports, including our Investing in Justice report on civil legal aid.  We did sign the brief, and the SJC recently adopted our position, as BBA President Julia Huston explained in her most recent blog post.

Since then, the BBA’s Amicus Committee has been extremely busy, most notably with the case of Wong v. Luu (SJC No. 11789).  Though the facts are complex and often somewhat unclear from the record, the appeal arises from two orders issued by a Superior Court Justice for sanctionsof $239,928.40 against an attorney in a case involving the attempted sale of a chain of Boston-based Asian food markets.  After lengthy discussions, the parties claimed to have reached a framework for settlement.  However, at a later date, certain parties informed the court that the settlement had collapsed and pointed the finger at an attorney involved in the settlement who had made a written solicitation to all known trade creditors of the grocery chain informing them of his having achieved a 100-cents-on-the-dollar recovery for his client, and inviting them to contact him if interested in retaining his services.

These other lawyers sought sanctions, claiming that the solicitation caused their clients to rescind their settlement agreement.  The Court agreed and, following oral argument where no witnesses appeared, the Superior Court Justice issued the aforementioned monetary sanction, explaining that the attorney had acted unreasonably, delayed the administration of justice, wasted court and attorney resources, and breached his duties of good faith and fair dealing to opposing counsel, and his duty of candor to the court.  As a result, the Justice concluded, the Court had been materially prejudiced.

The sanctioned attorney appealed and in December 2014, the SJC granted direct appellate review.  Shortly thereafter, the SJC issued a formal request for amicus briefs to address: (1) whether the Superior Court judge exceeded his authority by imposing the fine on the grounds that the sanctioned attorney had interfered with an emerging global settlement through his actions and (2) whether the judge erred in assessing sanctions without first conducting an evidentiary hearing, and without adherence to any existing standard.

The Amicus Committee was first contacted about this case in late December 2014.  After thorough deliberation and input from a number of the attorneys involved in the litigation, as well as from members of the BBA’s Litigation and Civil Rights and Civil Liberties Sections and Ethics Committee, the Amicus Committee decided to recommend filing an amicus brief.  The Committee concluded that the case raised serious concerns regarding the practice of law, specifically, whether an attorney could be sanctioned for violating an assumption of confidentiality and whether a full evidentiary hearing should be held before a judge can issue sanctions, especially sanctions of this magnitude.

The Amicus Committee, along with the BBA Executive Committee and Council, all worked closely with their chosen drafter, Debra Squires-Lee, Sherin and Lodgen LLP, to draft the BBA’s brief.  The record in this case is a bit tangled, and it took a lot of discussion to identify which issues the brief should focus on, but we couldn’t be happier with the result.  The brief requests clarification from the SJC on the scope of a Superior 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 argues 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.

BBA leadership unanimously approved the brief and it was filed on February 13.  Oral argument is scheduled for March 3, and we hope that the SJC will find our brief helpful as it considers these complex issues.  As always, we will keep you posted on the latest developments.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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The Power of Clemency

The power to grant pardons and commutations – a little-known aspect of a Massachusetts governor’s authority, and one that has been rarely used in recent years – has sprung into the public’s attention in recent months, leading us to review how that power may be exercised, offer some history, and assess the current state of play.

Under Article LXXIII of the state constitution, “The power of pardoning offences … shall be in the governor, by and with the advice of [the Governor’s C]ouncil.”  Pardons wipe a conviction from the grantee’s record; commutations, which are also covered by the constitutional language on pardons, shorten a sentence but leave the underlying conviction in place.  Applications for pardons and commutations — collectively termed “clemency” — are reviewed by the Parole Board, which — acting in its capacity as the Advisory Board of Pardons, and with the help of its Executive Clemency Unit — ensures that the requirements for clemency are met, conducts investigations about petitioners, holds hearings if appropriate (with opponents of clemency in each case invited to speak), and makes a recommendation to the governor.  If a governor approves clemency, the decision must then be ratified by the Governor’s Council.

Recent governors have, at least in theory, solicited formal clemency requests.  But the reality is that few such requests have been approved in the past couple of decades.  Indeed, until the past few months (see below), no pardon had been granted in Massachusetts since 2002.  Nor had any commutation been forthcoming since 1997, when Governor Bill Weld commuted the life sentence of Joe Salvati, who had served nearly 30 years for a crime he didn’t commit.  Even by then, only seven had been granted in the previous 10 years – with pardons also becoming less frequent — according to a 2009 article in the Boston Globe Magazine, which posed the rhetorical question, “Is [the justice] system [one] that allows for redemption and reevaluation over time, or is it strictly a system for retribution, where the judge and jury forever have the last word?”

That same article, noting several other states with far-higher rates of commutations, traced the decline in the granting of commutations back to the case of Willie Horton, which figured prominently in Governor Michael Dukakis’s unsuccessful campaign for President in 1988.

Across the country, pardons have traditionally been granted most often at the tail end of the calendar.  Surely the Christmas holiday has something to do with that timing, and perhaps the approach of a new year does as well.  It is especially common for a governor, or a President, to offer pardons or commutations at the very end of his or her last term, free from the need to seek re-election.

And so it happened that in 2014, Governor Deval Patrick, with his time in office drawing to a close, rewrote the rules he had previously applied to clemency requests, with an eye toward encouraging more applications.  For example, the new pardon guidelines did away with the requirement that a petitioner demonstrate a “compelling need” for clemency, instead focusing on whether he or she had made “extraordinary contributions to society” or faced a deportation that would be “unnecessary for public safety” and generate “especially harsh or unfair consequences.”  Commutations, under the guidelines, should be approved only if the petitioner can show the sentence was “unduly harsh” – either for a non-violent offense or as the result of the joint-venture or felony-murder laws – or that the petitioner has served a substantial portion of the sentence and is suffering from either a terminal illness or a serious debilitating condition.  For either type of clemency to be granted, applicants should “present no current risk of reoffending.”

About 70 people applied for pardons in the last year of Governor Patrick’s term, but only eleven have yet received hearings, and of those only four were granted pardons.  Among them were True-See Allah, a former gang member who now heads the Suffolk County Sheriff Department’s Boston Re-Entry Initiative, and Jeffrey Snyder, who has kept a clean record since serving two years after being caught selling marijuana as a teenager in the 1980s and said his conviction has kept him from pursuing his dream job as a high school sports coach.  In addition, one sentence was commuted — that of Deanne Hamilton, a recovering cocaine addict who said her substance abuse stemmed from childhood sexual abuse.  Hamilton had previously been released when her conviction was vacated but was sent back to prison when the Appeals Court reinstated her sentence.   She had three years left to serve at the time of her commutation.

Since taking office, Governor Charlie Baker has withdrawn Governor Patrick’s guidelines, promising to announce his own guidelines shortly.  In the interim, however, the remaining applications are in limbo, with Parole Board hearings on hold for those applicants — including, most famously, Mark Wahlberg.  We will continue to follow this issue.

— Michael Avitzur
Government Relations Director
Boston Bar Association

Spreading the Word About Civil Legal Aid

cropped NELBEarlier this week, we were pleased to see the Chair of our Statewide Task Force to Expand Civil Legal Aid in Massachusetts, J.D. Smeallie, and Task Force member Professor Russell Engler, take part in a panel discussion along with Greater Boston Legal Services (GBLS) staff attorney Alexander Mitchell-Munevar at New England Law Boston.  The panel examined both a right to counsel and the current civil legal aid system.  Although the criminal right to counsel is imperfect, it is far more effective than the current civil legal aid system, wherein 64% of those in need are turned away.  On the criminal side, a right to counsel was born out of the Gideon Supreme Court case and its progeny in the early 1960s.  On the civil side, the Supreme Court has largely, though not entirely, rejected a right to counsel, starting in the Lasseter case in the 1970s and continuing through the 2011 Turner v. Rogers case.  These rulings have put us at odds with the rest of the world, as European countries began granting a right to counsel in certain civil cases around the time of the Lasseter decision.

Because of these holdings, the fight for a civil right to counsel has largely shifted to the states, and it has had some successes, particularly in Massachusetts.  For example, the Commonwealth gives a right to counsel in many civil juvenile cases and parental termination cases.  In fact, one-third of the cases handled by the Committee for Public Counsel Services (CPCS), the public defender organization in Massachusetts, are civil cases, largely in these areas.

Regardless of how it is addressed, either through a right to counsel or legal aid agencies, there is still a major shortfall in service resulting in the bulk of legal needs going unmet for poor populations.  There are many potential solutions – all of which have already been explored in some way or other in Massachusetts, often by the BBA, but which are always evolving in an attempt to make the most impact.  These include:

  • Simplifying court procedures
  • Installing new technologies
  • Revising the roles played by judges, clerks, and other court staffers
  • Hotlines, pro se clinics such as lawyer for the day programs, limited assistance representation opportunities, pro bono lawyers, court service centers, law student volunteering, non-lawyer “lay advocates”

However, as the New England Law panelists discussed, even if we are able to expand access to justice through some of the above ideas, another issue emerges: the quality of justice.  The goal is to offer meaningful access, not mere access to justice.  Certainly as the justice system currently exists in Massachusetts, the best way to accomplish that is by providing those in need with a legal aid attorney.  This means providing much-needed representation to individuals facing legal challenges for basic life necessities such as a wrongful eviction or a child custody dispute with an abuser.  It is not to provide lawyers to deadbeat renters or scheming divorcees.

Setting aside the moral imperative to give everyone meaningful access to justice, the BBA’s report, provides another justification – it’s a sound investment.  While the state has done a great job at gradually increasing the Massachusetts Legal Assistance Corporation (MLAC) line item and the private bar has stepped up to provide tens of millions of dollars in donations and pro bono services, the need for legal aid has never been greater.  However, based on the conservative reports of independent economic analysts, Massachusetts can expect a sizable return on investment for every dollar spent on civil legal aid.  In housing, each dollar invested yields $2.69, mostly in police and shelter costs.  In domestic violence, each dollar invested yields $2 in medical cost savings, and in federal benefits, each dollar invested yields a $5 economic benefit to the state.

The numbers are clear, now it is just a matter of spreading the word, and we are trying to do that every way we can.  From the forum described at the start of this post, to a Boston Globe cover story, numerous op-eds and editorials, and the recent Walk to the Hill, we are doing everything we can to expand the conversation about the need for civil legal aid funding.  We even took to Twitter with the Equal Justice Coalition’s (EJC) #iwalkforjustice campaign, featuring lawyers, politicians, and other public servants holding up signs explaining why they value legal aid.  Now it is your turn to spread the word – contact the Governor and your legislators (don’t know who represents you? Look them up here) let them know you understand the importance of civil legal aid and request that they fund line item 0321-1600 at $25 million for his FY2016 budget.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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