Monthly Archives: January 2017

S.J.C. Takes a Big Step Toward Closure in the Years-Long Annie Dookhan Drama

In the five years since scandal enveloped the state’s Hinton Drug Lab—after the misconduct of Annie Dookhan was discovered—we’ve covered the fall-out many, many times.  Last week, the Supreme Judicial Court (SJC) rendered its highly-anticipated “Bridgeman IIdecision addressing the crisis.  But as with any story on the Dookhan cases, a little history is in order first…

Those links above collectively tell the story of a rogue chemist who mishandled drug samples, failed to conduct tests on samples she nevertheless labeled as controlled substances, contaminated unknown suspected drug samples with known drugs before running tests to identify those unknown drugs, and falsified evidence logs and reports, among other misdeeds.  Dookhan was sentenced to three-to-five years in prison in 2013, after pleading guilty to obstruction of justice, tampering with evidence, and other charges, and she was released early last year.  Case closed.

Except that even now, upwards of 20,000 defendants are still living with the fallout from criminal records stemming from adverse dispositions in cases in which Dookhan was a chemist of record.  These are people who were convicted or pled on the basis of what we now know to be tainted evidence, and they are living with the consequences: difficulty obtaining employment, public housing, benefits, drivers’ licenses, and so on.  Many faced harsher punishment later because a Dookhan conviction was a predicate offense.  For some, their custody of children, or even their very presence in the country is at stake.

But the courts have struggled to find a solution: How to offer justice across so many cases, short of simply vacating all remaining charges in one go—the so-called global remedy that the SJC has resisted?

David Meier of Todd & Weld was named by then-Governor Patrick to lead a task force that would seek to identify all the “Dookhan defendants.”  He ultimately produced a list of 40,323 individuals … but that was incomplete and based on only partial information.

Special magistrates—including current BBA Council member Judge Margaret Hinkle (retired)—were appointed by the Superior Court to handle hundreds of cases but were able to process only a fraction of the full universe, with a focus on those who were then still in custody.

Last year, after a comprehensive list of affected defendants was finally compiled and agreed upon by all stakeholders, notice was sent to all of them, at their last known addresses, by the District Attorneys in each case, advising of their rights to appeal based on Dookhan’s influence on their cases.  But the response has been limited.

Meanwhile, Bridgeman v. District Attorney for Suffolk County was making its way to the SJC, not once but twice.  In May 2015, in the first Bridgeman case (“Bridgeman I”), the SJC ruled that Dookhan defendants cannot be charged with more serious crimes if given a new trial and, if convicted, cannot be given a harsher sentence than was originally imposed.

By last October, the case was back before the SJC, with the Court seeking amicus briefs on:

Whether the persons who were convicted of drug-related charges and in whose cases … Dookhan signed the certificate of drug analysis as the analyst … are entitled to a comprehensive remedy, including, whether all cases involving misconduct by Dookhan should be dismissed or subjected to a court-imposed deadline.

The BBA filed a brief calling for a global remedy that places the burden on the Commonwealth to re-prosecute within a set time period (to be determined by the Court) any cases that have not been re-adjudicated since 2012, when the scandal first came to light.  If cases are not re-prosecuted within that time period, the brief calls for their dismissal with prejudice, barring further prosecution.

Our interest was twofold: to facilitate access to justice for all defendants in criminal cases, and to ensure the timely, fair, and efficient administration of justice.  Not only would a global remedy secure justice for the defendants, but it would also start to relieve the significant burden on a justice system that was otherwise facing the prospect of addressing more than 20,000 unresolved cases one-by-one.  The burden should rest with the Commonwealth rather than these individuals, we argued, because the widespread and systemic nature of Dookhan’s misconduct, as a state employee, implicates public confidence in the government and justice system.

Our brief stated that while the courts have worked admirably and diligently to handle these cases, now that the full and pervasive scope of Dookhan’s misconduct is more fully understood, it is clearly an exceptional circumstance meriting the SJC’s use of its extraordinary powers to impose a global remedy.  We conclude that “the net result of the current process will be that a certain and significant number of adverse dispositions that were obtained by ‘egregious’ [the SJC’s word] misconduct attributable to the Commonwealth will remain intact.  Thus, by default, many Dookhan defendants will continue to suffer the consequences of ‘egregious’ government misconduct and, absent a global remedy, such misconduct will not be remedied or abated in any systemic or comprehensive way.”  This outcome is unacceptable and inconsistent with due process and undermines the integrity of the criminal justice system.

In a majority opinion written by Chief Justice Ralph Gants, the Court once again declined last week to adopt a sweeping global remedy, ordering instead a three-step protocol, to be implemented by Justice Margot Botsford as single justice:

In the first phase, the district attorneys shall exercise their prosecutorial discretion and reduce the number of relevant Dookhan defendants by moving to vacate and dismiss with prejudice all drug cases the district attorneys would not or could not reprosecute if a new trial were ordered.

In the second phase, new, adequate notice shall be approved by the single justice and provided to all relevant Dookhan defendants whose cases have not been dismissed in phase one.

In the third phase, CPCS shall assign counsel to all indigent relevant Dookhan defendants who wish to explore the possibility of moving to vacate their plea or for a new trial.

If the number seeking counsel is so large that counsel cannot be assigned despite CPCS’s best efforts, the single justice will fashion an appropriate remedy under our general superintendence authority for the constitutional violation, which may include dismissing without prejudice the relevant drug convictions in cases where an indigent defendant is deprived of the right to counsel.

So … not entirely what we had advocated for but nonetheless a significant step toward that comprehensive resolution—while holding out the potential for lifting the remaining cloud over the Dookhan defendants and allowing them to move on with their lives.  The Court agreed with our argument that continuing to place the burden on these defendants to come forward one at a time—to say nothing of the burden on the courts—is no longer a viable option, in spite of the DA’s arguments that the notice they sent served its purpose and no extraordinary action need be taken, and that a different course of action, five years after the scandal first came to light, is necessary to protect the fairness and integrity of our criminal justice system.

The DA’s were given 90 days to inform the single justice in which cases they “could produce evidence at a retrial, independent of Dookhan’s signed drug certificate or testimony, sufficient to permit a rational jury to find beyond a reasonable doubt that the substance at issue was the controlled substance alleged in the complaint or indictment.”

Justice Geraldine Hines, for her part, filed a dissenting opinion, in which she stated that

the need to adopt a swift and sure remedy for the harm caused by her deceit presents itself with palpable urgency. The time has come to close the book on this scandal, once and for all, by adopting a global remedy. While I agree, as the court notes, that a global remedy is “strong medicine” … the continuing violation of the rights of the defendants affected by Dookhan’s misconduct and the damage to the integrity of our criminal justice system demand no less.

The three-step protocol, she said,

is simply unworkable as a timely and effective mechanism for addressing the due process claims of the thousands of defendants now deemed to have been convicted on Dookhan’s tainted evidence. In short, the court’s solution is too little and too late. The only fitting end to this blight on the integrity of our criminal justice system is vacatur and dismissal with prejudice of the convictions of all relevant Dookhan defendants.

It should also be noted that Justice Barbara Lenk, joined by Justice Kimberly Budd, trod a middle path in a concurrence with the majority, expressing her impatience:

I write separately to underscore that, in those five years, and despite the time and efforts of so many, we have managed to address fewer than 2,000 of the estimated 20,000 or more cases involving Annie Dookhan-tainted evidence. We cannot go on this way. …

I share the dissenting Justice’s frustration with the unacceptably glacial systemic response to date and join in her view that extraordinary measures are now in order. … [H]owever, I regard the protocol announced today … as promising to be such a measure, but only if implemented in a manner that countenances no further delays. … [T]here must be strict compliance with its stringent timelines and requirements.  Only this will forestall the need for a “Bridgeman III” and different measures.

And indeed, the single justice has already held a hearing earlier this week, to begin to implement the new protocol.

As you can see, the Dookhan scandal is one that has taken many turns in the past five years.  When will the last chapter finally be written for all the defendants whose lives she upended?  We still can’t say … but after last week’s ruling, and this week’s hearing, that day at least feels closer.

— Michael Avitzur
Government Relations Director
Boston Bar Association

AG Healey Spells out Priorities at Council

She was a member of the BBA Council from 2012 to 2015 and also sat on the Executive Committee.

She co-chaired our Civil Rights & Civil Liberties Section.

Two years ago, she was the keynote speaker at the BBA’s Law Day Dinner, where she spoke warmly of having “grown up” professionally through her BBA involvement, attributing many of her core values to what she learned as a member.

And this past week, Maura Healey returned to the Council as the state’s Attorney General, having been elected to that office, after nearly seven years on AGO staff, in 2014.

Since she took over what she calls The People’s Law Firm, her office has successfully rolled out several major policy initiatives, including the Earned Sick Time law and the Domestic Workers’ Bill of Rights.  She also helped shape the Transgender Rights, Pay Equity, and Pregnant Workers Fairness bills.  And on that last issue, she has led by example—providing six weeks of paid family leave for all employees, making the AG’s Office the first state agency to offer paid parental leave.

The AG spoke to Council members at length on Tuesday about her priorities and the work of the Office, but she started by stating that, given the great uncertainties about what it is to come politically, there has never been a more important time in this country for the role of lawyers, or for the rule of law.

In that assessment, she sees a role for the private bar especially.  AG Healey cited a hotline she established in November, for people to use in reporting acts of hatred and bias, and she thanked BBA President Carol Starkey for offering to help in lining up volunteers to handle any cases that emerge.

In addition, we are also partnering with the Attorney General, as well as legal services organizations, to identify other emerging legal needs in the community, particularly as they pertain to the increase in concerns surrounding immigration.  The AG’s office continues to monitor developments in federal immigration policy, to determine what impact they may have on Massachusetts residents.

In the AG’s view, this is part of what it means to run The People’s Law Firm: standing with those who are marginalized or have limited means.  She sees her office as a problem-solver.  Sometimes those problems can best be addressed through litigation; other times, leveraging the expertise and the resources of her office can produce a resolution without going to court.

Another area where we are working from the same playbook as the AG is criminal-justice reform.  She told the Council that policy-makers need to “lean in”, seizing this moment to produce change that goes beyond what has been recommended by the Council of State Governments group that has been studying the issue the past year.

She specifically cited racial disparities and data collection as areas where greater effort is called for, and she expressed hope that the scope of the debate to come on Beacon Hill this year will extend beyond merely mandatory minimums—which the BBA has long opposed.  This would include keeping people out of prisons and jails where possible—and where not, properly treating those who are incarcerated and offering them meaningful preparation for re-entry to society.

AG Healey also highlighted some of her other priorities for 2017:

  • Her office has also been conducting workers’-rights clinics for employees who believe they’ve been treated unfairly. She’s especially concerned about immigrants and other vulnerable populations.  To spread awareness of this educational opportunity, her office has been giving notice about the clinics whenever a private right of action is issued in an employment case.
  • The state’s on-going opioid crisis demands attention, and AG Healey has advocated for greater funding and expansion of education and outreach to both parents and children. It has also created a need for more pro-bono representation in guardianship cases—for example, when a grandparent must step in to raise a child.
  • Economic opportunity and security will continue to be a focus of the AG’s Office. She’s particularly concerned about debt-collection cases, and the tremendous number of defaults occurring in District Court, which only causes more problems for debtors down the road, with obtaining housing, employment, and loans.
    • To address the problem, and quell predatory practices, her office has recently begun a pilot program at the Boston Municipal Court—a single session, once a week, where trained attorneys meet with debtors to review cases.
    • Notice is sent to defendants ahead of time, advising them of this opportunity, and already, in just a few months, the program is showing results, with a 50% increase in attendance at hearings (hence, no default) and more than 100 participants having avoided default.

AG Healey also took questions from members, touching on subjects that included:

  • Climate change—she plans to step up, probably alongside colleagues from other states, if she believes the EPA is backing off on its regulatory enforcement. This is an issue she hears about at town-hall meetings around the state, and one in which she feels a moral obligation to confront potential economic consequences.
  • Acting in concert with other AG’s—again, in response to any regulatory retrenchment in a variety of other areas. She sees these offices as the first line of defense against such roll-backs, as well as potential unconstitutional practices.  She described waking up every day and asking whether her office has standing to intervene in such instances.  Witnessing what she described as voter suppression in other states (though not here) has her wondering whether her office can help.

Along the way, the AG took pains to credit her staff, and she thanked the bar for providing their expertise on issues like the equal-pay law and regulations on earned sick time for employees.

We very much appreciated hearing from Attorney General Healey, and we look forward to next month’s Council meeting, which will feature an appearance by SJC Chief Justice Ralph Gants.  Stay tuned…

— Michael Avitzur
Government Relations Director
Boston Bar Association

Walk to the Hill 2017: Rallying for Civil Legal Aid

As you may know, our Legislative and Public Policy Manager, Jonny Schreiber, has moved on, so I’m stepping up to pen this week’s Issue Spot.  What better way to honor Jonny than to choose as this week’s subject Walk to the Hill, the annual lobby day for civil legal aid?  Of course, funding for civil legal aid is always one of the BBA’s annual priorities, but thanks to the work Jonny did in helping shape the report of our Statewide Task Force to Expand Civil Legal Aid in Massachusetts, we have an even stronger argument to make.

And what better place to make that case than at Walk to the Hill on January 26, from 11 to 1?  This event—sponsored by the Massachusetts Legal Assistance Corporation and the Equal Justice Coalition, regularly draws hundreds of attorneys to the State House’s Great Hall, and we are hoping for a record turnout this year!

There will be speeches from BBA President Carol Starkey, the president of the MBA, clients with stories of how they’re lives were changed with the help of a legal-aid attorney, and SJC Chief Justice Ralph Gants—who each year tries to outdo himself in coming up with examples to demonstrate how a relatively-small increase in the overall state budget can have such a meaningful impact on the neediest among us.

Of course, civil legal aid is an issue that affects every legislative district in Massachusetts: Every legislator has many constituents who not only qualify for legal aid (typically based on age or income) but rely on it at critical moments, such as when facing eviction or trying to secure their rightful benefits.  As a result, the level of support for civil legal aid in the Legislature is very high, and Walk to the Hill always brings out many elected representatives.

As for the rest of them, we are counting on you to help remind, and educate, them about the issue, and in particular the need for increased funding.  After the initial registration and the speaking program (and did I mention the boxed lunch?), attorneys fan out to various legislative offices in the State House to meet with their respective Senators and Representatives.

Are you unsure about sitting down (or, in some cases, standing up, because there are more attorneys than chairs!) to talk with your elected officials about legal aid?  We’ve got you covered: We’ll send you off from the Great Hall with guidance on talking points and a packet full of information, both for you and for your representatives.

But just to get you started thinking about it, here are the key findings of our Task Force’s 2014 report (full text here):

  • 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.
    • That means of thousands are turned away every year, which is especially concerning in areas of basic need such as housing evictions and escaping 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.

On the strength of these findings, the BBA, the EJC, and our other partners in this effort were able to secure a 20% increase in state funding for MLAC over the past two years, from $15 million to $18 million.  It is a measure of how effective our advocacy has been, and how much legislators and the Governor care about this issue, that these gains have come at a time of great fiscal pressure, when most other line-items were seeing limited, if any, increases.

Still, the budget forecast for the coming year is looking no better, and we must keep up our work.  For Fiscal Year 2018, which starts on July 1, we are asking for a $5 million increase, which would bring the MLAC line-item appropriation up to $23 million.  As it happens, the Governor will be releasing his budget proposal (which is the first big step in the budget process) the day before, so we’ll have a better idea by then of where we stand as the debate shifts to the Legislature.  (By the way, if you’d like to learn more about Walk to the Hill, funding for MLAC, and the budget process generally, check out our recent Issue Spot podcast on these topics, featuring me and Jonny Schreiber.)

What’s that?  A lunch program and visits to legislative offices aren’t enough for you?  Then why don’t you also join us for our annual Walk to the Hill breakfast, sponsored by our Solo & Small Firm and New Lawyers Sections.  The breakfast (that’s two free meals in one day!) is held here at 16 Beacon from 8.30 to 10.30am, so you can eat, network, and get psyched up for a day of advocacy.

Now that you’re armed with all this info, we hope we’ll see you on January 26th for the biggest Walk to the Hill yet.  If you’re able to attend, don’t forget to fill out your exit report on the way out, so we can tally up all the legislative visits and better plan our strategies for the rest of the campaign!  If you can’t make it, watch for more updates in this space, and in other BBA alerts, about how you can weigh in with your Senator and Representative.

We look forward to keeping you up to date on all the latest developments in the FY18 budget campaign.

— Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Government Relations Year in Review: Part II

Hopefully you enjoyed part I of our Year in Review, discussing our efforts on amicus briefs and criminal justice reforms.  Part II will discuss our comments on proposed rules changes, efforts at increasing diversity and inclusion in the legal profession, civil legal aid funding advocacy, and legislative victory!  2016 was a great and productive year and we’re looking forward to doing even more in 2017!

BBA Rules Comments

One component of the BBA’s policy function that sometimes goes overlooked is the work of our Sections in reviewing and commenting on proposed amendments to rule changes.  This is a great benefit to our members as it empowers them to be involved in making positive changes that directly impact their practice areas.  This is especially true because the courts do a great job of listening to the concerns of practitioners and frequently make changes based on our comments.  Here are links to some of our coverage:

Diversity, Civil Legal Aid, Legislation and more!

Given space and time constraints (we’ve got to get going on all our 2017 work!!), I’m going to lump together everything else including our posts on the courts, diversity and inclusion, civil legal aid funding, and more.  Here are a few highlights:

  • December 15: ‘Tis the Season to Focus on Civil Legal Aid – Advocating for civil legal aid funding is one of the BBA’s main priorities every year. We work on the issue year round, but the campaign really starts moving in earnest with the kickoff event, Walk to the Hill, held this year on January 26.  The event brings together hundreds of lawyers who hear speeches from bar leaders including our President and the Chief Justice of the SJC and then encourages them to spread throughout the building to visit their elected officials and spread the word about the importance of legal aid funding.

As explained in this year’s fact sheet, the needs are still massive (around 1 million people qualify for civil legal aid by receiving incomes at or below 125% of the federal poverty level, meaning about $30,000 for a family of four), the turn-away rates are still too high (roughly 64%, due to under-funding), and civil legal aid remains a smart investment for the state (it returns $2 to $5 for every $1 invested).  In FY16, MLAC-funded programs closed over 23,000 cases, assisting 88,000 low-income individuals across the state.  And this is only part of the picture as they provided limited advice, information, and training to countless others.  More funding will enable them to take on more cases, represent more people, shrink the justice gap, and return more money to the state.  It will also ease a massive burden on the courts which are bogged down by pro se litigants as illustrated in this video from Housing Court.

We hope to see you on January 26 at the Walk and that you will stay engaged throughout the budget cycle, which stretches to the spring.  For more on that, check out our latest podcast!  We will keep you updated here with all the latest developments and may ask that you reach out to your elected officials at key times to again voice your support.  Last year we shared six posts  throughout the budget, updating you on all of our priorities, including legal aid, the Trial Court, and statewide expansion of the Housing Court.  Our final budget post from August 4 shows where everything wrapped up.  For anyone interested in the process, check out our older budget posts from April 14, April 21, May 5, May 19, and June 30 as well.

  • August 9: BBA Clarifies Zoning Law and Promotes Real Estate Development – More traditionally, the BBA is known for its work on legislation. We support a number of bills of interest to our practice-specific Sections as well as the organization as a whole.  On August 5, the Governor signed into law H3611, An Act relative to non-conforming structures.  The BBA has supported this bill in various forms since 1995, behind the leadership of its Real Estate Law Section, as a means of improving the clarity of Massachusetts zoning laws and thereby promoting economic and real estate development.  During the current legislative session we were pleased to receive help and support from Council member Michael Fee, who testified on the bill at a legislative hearing in May 2015.  We look forward to more legislative successes this session!

As you can see it’s been quite a year.  This doesn’t even touch on dozens of other posts on things we were or are involved with.  We hope you’ll keep reading through the new year for all the latest news from the BBA’s Government Relations team and give us a follow on twitter for even more late breaking news!

I want to end on a personal note to say that this will be my final Issue Spot post.  I have drafted hundreds over the last 3.5 years at the BBA and loved being able to be part of all the incredible work of the Association and its members.  I am excited to be moving to a new position, but will certainly miss the BBA and hope to stay involved.  Thank you for reading!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association