Monthly Archives: January 2016

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