Monthly Archives: December 2015

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 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.


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!


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.)


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.



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.


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.


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,, 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…


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.


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!


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


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.


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.


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