Monthly Archives: September 2017

BBA Annual Meeting Preview

Each fall, the Boston Bar hosts its Annual Meeting, one of the largest legal community gatherings of its kind. At the meeting, the BBA brings together members of the bar, their friends and colleagues, and leaders across a range of professional sectors for an afternoon focused on the law and the evolving landscape of the legal profession. The event will include remarks from President Mark Smith, the presentation of a Distinguished Legislator Award, and a special keynote speech from Piper Kerman (Orange Is the New Black). We hope you’ll join us there!

Distinguished Legislator Award

This year, the BBA will be conferring its Distinguished Legislator Award on Representative Kay Khan for her longstanding dedication to the youth and families of the Commonwealth, her leadership in juvenile justice reform, her stalwart support for persons with disabilities, and her commitment to ensuring inclusion and fairness of all residents of the state.

Representative Khan is the House Chair of the Joint Committee on Children, Families, and Persons with Disabilities as well as a founder and co-chair of the legislative Mental Health Caucus, the first of its kind in the country. She is also an observer on the Criminal Justice Commission, which explores ways to prevent crime by implementing data-driven, evidence-based public safety reforms that protect citizens in our cities and towns, reduce recidivism, and save taxpayer dollars. In addition, Representative Khan is the Co-Chair of the Task Force on Women in the Criminal Justice System, which could not be more relevant to the keynote speaker highlighted below!

Representative Khan has a long history of supporting causes near and dear to our mission here at the BBA. In 2003, we, alongside Greater Boston Legal Services, gave her the “Pillar of Justice Award,” for her role in saving legal aid services for low-income residents in the Commonwealth. Representative Khan has also filed and been an outspoken proponent on legislation that would ban the use of conversion therapy by licensed providers on minors in Massachusetts, which the BBA Council voted to endorse in 2015. As you may recall, the BBA has continued its advocacy on the bill filed by Representative Khan, H.1190, and an identical bill filed in the Senate, S.62 by Senator Mark Montigny this session. In June, we had the opportunity to present testimony in support of these bills before the Joint Committee on Children, Families, and Persons with Disabilities. You can read a full recap on our continued advocacy in support of the conversion therapy ban here.

Keynote Speaker

Of course, it wouldn’t be the BBA Annual Meeting without an exciting keynote speaker who always offers their own specific insights on major topics impacting the legal community. For example, last year Professor David Wilkins, Vice Dean for Global Initiatives on the Legal Profession and Director of the Center on the Legal Profession at Harvard Law School, reflected on major developments sure to impact the profession, including globalization and the rise in the sophistication of information technology. The year before, we were fortunate to hear from Governor Charlie Baker, who addressed a range of topics, including civil legal aid funding, justice reinvestment, and the importance of pro bono work.

This year, we are thrilled to be joined by Piper Kerman, author of the memoir Orange is the New Black: My Year in a Women’s Prison, which was adapted by Jenji Kohan into an Emmy Award-winning original Netflix series. Kerman is also an outspoken advocate of criminal justice reform. She has testified before the U.S. Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights on solitary confinement and women prisoners and before the U.S. Senate Governmental Affairs and Homeland Security Committee on the federal Bureau of Prisons. Kerman was, in addition, invited to speak at the Obama White House about the need to support and expand re-entry and employment programs nationwide as well as the unique conditions facing women in the criminal justice system. We are excited to hear her unique perspective on the challenges facing our nation’s criminal justice system.

The timing could not be any better as well, as the BBA Criminal Justice Working Group, chaired by BBA Treasurer Marty Murphy, of Foley Hoag, and former BBA President Kathy Weinman, of Hogan Lovells, is nearing release of its own recommendations on criminal justice reform here in the Commonwealth. We hope this report will help shape and move the debate on criminal justice reform, which has been ramping up over the last few months, and which is sure to be a legislative priority in the State House in the coming months.

….

Be sure to watch this space for more updates as our advocacy around the working group’s report gets underway, and if you haven’t yet registered for the Annual Meeting, it’s not too late!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

SJC Update: Court Narrows Felony-Murder Rule

It’s been a while since we checked in with updates from the Massachusetts Supreme Judicial Court (SJC), so when a landmark decision came out this week, changing the rules for felony-murder for first time since the Civil War, we thought this warranted a closer look.

Just yesterday, the SJC announced its decision in Commonwealth vs. Timothy Brown, related to the scope of criminal liability under the common-law felony-murder rule, which “imposes criminal liability for homicide on all participants in a certain common criminal enterprise if a death occurred in the course of that enterprise.”

Justice Frank M. Gaziano, who drafted the decision, stated that “a unanimous court concludes that the felony-rule is constitutional” but that a “majority of Justices, through the concurrence of Chief Justice Gants … hold that, in trials that commence after the date of the opinion in this case, a defendant may not be convicted of murder without proof of one of the three prongs of malice.” This means that felony-murder will no longer be an independent theory of liability for murder and will instead be “limited to its statutory role under G.L.c. 265, Section 1, as an aggravating element of murder, permitting a jury to find a defendant guilty of murder in the first degree where the murder was committed in the course of a felony punishable by life imprisonment even if it was not committed with deliberate premeditation or with extreme atrocity or cruelty.”

The Court addressed the issue in the case of defendant Timothy Brown, who was charged in relation to an attempted armed robbery and home invasion in Lowell, where two armed gunmen fatally shot brothers Hector and Tony Delgado in 2009. The Defendant was not present at the scene when the shooting occurred. The prosecutors in the case argued that Brown was liable as an accomplice to felony-murder, because he provided hooded sweatshirts to help conceal their identities and a pistol to one of the gunmen. Brown was convicted by a jury on two counts of felony-murder in the first degree arising from the predicate felonies of attempted commission of armed robbery, home invasion, and unlawful possession of a firearm and ammunition.

In an appeal filed this year, the defendant raised a number of claims, including that the Commonwealth introduced insufficient evidence to prove that he was a knowing participant in the felony-murders and that various errors by the judge and prosecution warranted reversal or a new trial. In addition, the appeal including arguments that the felony-murder rule should be abolished and that a new trial should be ordered under the Court’s extraordinary authority pursuant to G.L. c. 278, Section 33E, which states that the SJC shall review any first-degree murder conviction and “may, if satisfied that the verdict was against the law or the weight of the evidence, or because of newly discovered evidence, or for any other reason that justice may require (a) order a new trial or (b) direct the entry of a verdict of a lesser degree of guilt, and remand the case to the superior court for the imposition of sentence. ”

The Court first held that the Commonwealth did introduce sufficient evidence and that the defendant’s other challenges did not raise error warranting reversal or a new trial as to any of the underlying convictions.

In relation to the defendant’s argument that the felony-murder rule should be abolished, the Court unanimously rejected the argument that the felony-murder rule is arbitrary and unjust in because it is contrary to the fundamental notion that an individual is culpable for his or her own misconduct, in violation of Article 12 of the Massachusetts Declaration of Rights. The Court pointed to their consistent rejection of arguments in the past that the rule is unconstitutional, noting that there was no reason to deviate from their decisions to that effect in Commonwealth v. Watkins (1978) and Commonwealth v. Moran(1982).

The Court also found, after reviewing the record pursuant to their authority under G.L. c. 278, Section 33E, the verdicts of felony-murder were not contrary to joint venture felony-murder jurisprudence or against the weight of the evidence, so as to warrant a new trial.  However, the Court did hold that  “in the circumstances of this case…pursuant to our authority under G.L. c. 278, Section 33E, the interests of justice require that the degree of guilt be reduced to that of murder in the second degree,” coming to this conclusion after finding that the defendant’s involvement was on the “remote outer fringes” of the joint venture.

This ruling has significant consequences for Timothy Brown, of course. He was previously sentenced to life in prison without the possibility of parole, based on the first degree murder charges. Now, however, since that sentence is vacated and the case is remanded back to the superior court for sentencing under the second-degree murder verdict, he will be eligible for parole after serving 15 years.

However, the decision, as a result of the concurrences, is also hugely significant for criminal law in the Commonwealth.  The Court declined to apply its ruling retrospectively, so it will have no effect on past convictions under the felony-murder rule.  But in the future, the Court provided that “the scope of felony-murder liability should be … narrowed, and … in trials that commence after the date of the opinion in this case, a defendant may not be convicted of murder without proof of one of the three prongs of malice.”

Defense attorneys hailed this decision.  Those who handle murder cases have long been troubled by the possibility that an injustice can result from application of the felony-murder where a defendant never intended to use violence.  They note that the judge in such a case can always impose a harsher sentence for the underlying offense when death results, but a mandatory life sentence for felony-murder is often unwarranted.  The Massachusetts Association of Criminal Defense Lawyers (MACDL) released a statement citing an amicus brief it had filed in a pending case, Commonwealth v. Morin, which had advanced an argument for the abolition of felony-murder.

The Boston Herald quoted appellate attorney Joe Schneiderman saying, “It is a very established rule, and a general principle of criminal law, that we punish someone for having a guilty mind with a guilty act.  Felony murder is unusual because the guilty act shows a guilty mind. The SJC has successfully untangled that issue.”

According to the Boston Globe — which noted that Michigan, Hawaii, and Kentucky had similarly revised their felony-murder laws — Plymouth District Attorney Timothy J. Cruz released a statement saying, “As pointed out by Justice Gaziano, the decision unfairly diminishes the seriousness of violent felonies that result in the deaths of innocent victims.”  There may be major ramifications of this ruling for how homicides are prosecuted in the Commonwealth.

In addition, court-watchers took note of the split ruling — with Chief Justice Gants, and Justices Lenk, Hines, and Budd forming a narrow majority in favor of the new felony-murder rule — and wonder whether it portends a division in upcoming criminal cases.  Since the argument was held in this case, Justice Geraldine Hines has retired, replaced by former Appeals Court Chief Justice Scott Kafker.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

DACA Update: BBA Hosts Panel Discussing Implications of Program Discontinuation

On Tuesday, September 5, U.S. Attorney General Jeff Sessions announced that President Trump is ending the Deferred Action for Childhood Arrivals program (“DACA”), with a gradual phase-out, and official end date of March 5, 2018.  DACA was established through an Executive Order in June 2012 by then-President Obama and provides qualifying undocumented immigrants with a renewable two-year period of deferred action and work authorization, allowing them to remain in the United States to study, work, or serve in the military.  Individuals were eligible for DACA relief if they satisfied a strict set of criteria, including:

  • Were under 31 years of age as of June 15, 2012;
  • Arrived in the U.S. while under the age of 16;
  • Continuously resided in the U.S. from June 15, 2007, to the present (though brief and innocent absences for humanitarian reasons do not count against this);
  • Entered the U.S. without inspection or fell out of lawful visa status before June 15, 2012;
  • Were physically present in the United States on June 15, 2012, and at the time of applying for DACA relief;
  • Were in school, had graduated from high school, had obtained a GED, or had been honorably discharged from the Coast Guard or armed forces;
  • Had never been convicted of a felony, a significant misdemeanor, or more than three misdemeanors; and
  • Were not a threat to national security or public safety.

Though the phase-out will occur gradually over the next six months, and Congress has been urged to pass a replacement in the meantime, this announcement instantly made the future of current beneficiaries unclear.  Given this resulting (and continued) confusion and the potentially devastating outcomes for an estimated 800,000 current and potential DACA beneficiaries, the BBA moved quickly to gather a panel of immigration law attorneys to discuss what members of the bar, potential clients who are directly affected, and the public need to know about the decision and what to expect in the coming months.

For full details, watch the program here.

We were fortunate enough to be joined by three experts in the field:  Iris Gomez, of the Massachusetts Law Reform Institute (MLRI), is a nationally-recognized expert on immigration and asylum law and has served as an immigration attorney at MLRI for 25 years and now directs the organization’s Immigrants Protection Project. Scott J. FitzGerald, of Fragomen, Del Rey, Bernsen & Loewy, LLP, has practiced in immigration and nationality law for over 20 years and has in-depth experience in the full gamut of U.S. immigration and nationality laws and policies. And George N. Lester, also of Fragomen,  has over 25 years of experience in advising diverse companies seeking to hire foreign professionals and representing them through all the steps necessary to achieve temporary or permanent immigration status.

The Phase-Out:

Iris Gomez kicked things off with an overview of the program itself and how the phase-out would impact various types of immigrants. The original program protected qualifying immigrants against deportation and granted them work authorizations for a two-year, renewable period. The program also included travel benefits, known as advance parole, which allowed participants to leave the country and return without being ejected at the border.

As the phase-out begins, different groups will be impacted in different ways, which Gomez helpfully explained:

  • Current beneficiaries of DACA whose documents expire within next six months: Those beneficiaries whose documents expire between September 5, 2017, and March 5, 2018, have until October 5 to renew their DACA authorization and work permits. Because of this tight timeframe, the need for legal assistance for this category of beneficiaries is exceedingly pressing. Greater Boston Legal Services is hosting Clinics on the next three Mondays in advance of this October 5 deadline.
  • DACA beneficiaries who have already applied for renewal and those applying for DACA for the first time: Those individuals who had applied for renewal, or for the first time, before September 5, 2017, will continue to be adjudicated under the pre-existing process. The two-year authorization period will begin upon the final adjudications, so many of these individuals may remain beneficiaries into 2020 or 2021.
  • Current beneficiaries with documents that will expire after March 5, 2018: These beneficiaries will retain their status in their documents until their individual expiration dates, so their work permits will remain valid through the date on their work authorizations.
  • Past DACA beneficiaries who let their DACA qualification expire and had not yet applied for renewal: These past-beneficiaries are now ineligible and can only benefit if there is a legislative solution or other remedy that covers them.
  • Similarly situated immigrants who, in theory, are eligible for DACA but never filed: These individuals are also left with few options as a result of the program’s end and are similarly reliant on a legislative solution or other remedy.
  • Advance Parole Applicants: The granting of advance parole on the basis of DACA was immediately terminated upon the September 5 announcement. However, those who had already received advance parole but not actually travelled will, in theory, be permitted to return if they do leave the country. There is some risk in this, though, because Customs and Border Patrol Officials exercise broad powers in turning people away at the border. As a result, this also represents a category of individuals for whom access to an immigration attorney is very pressing.

Options beyond DACA

Next up, George Lester discussed other immigration options for those who previously had relied on or expected to rely on DACA relief, including:

  • Green Card based on a Family Member: Those individuals that may be eligible based on, for example, marriage to a U.S. Citizen or an approved family benefit petition from another family relationship (child, parent, etc.)
  • Green Card based on Employment: Those individuals that may be eligible based on one of numerous work-based petitions.
  • Temporary Work Visa Status: Those individuals that may be eligible for one of numerous temporary employment-based options, including H1-B visas.
  • Section 245-I: Those individuals eligible to receive a waiver of unlawful presence, which often bars exercise of the above options.
  • Asylum and Temporary Protected Status (TPS): Those individuals that meet the requirements of asylum, including well-founded fear of persecution upon returning to their country of origin, or TPS, when conditions in a country temporarily prevent individuals from returning safely.
  • Special Immigrant Juvenile Status: Those individuals under 21 and meeting the other criteria of SIJS, including being a victim of abuse, abandonment, or neglect.

Options at the Legislative and Court Level:

Following the overview of other options, Scott FitzGerald discussed the prospect of a Congressional solution which would prevent the end of DACA. President Trump, himself, has urged Congress to find a solution for DACA for the so-called Dreamers who are covered by it.  However, given the political climate in Washington, not least surrounding the highly-charged issue of immigration, there is much uncertainty about the likelihood that such legislation can be passed.

This prospect is made more complicated by the fact that many in Congress will demand that any continuation of DACA  include more-restrictive immigration measures, such as funding for building a border wall, stricter verification of employment status-, and major changes to the family-based immigration programs.

In addition to these legislative efforts, a lawsuit has been filed in the Eastern District of New York by 15 states, including Massachusetts (through the office of Attorney General Maura Healey), and the District of Columbia, demanding injunctive relief to prevent the phase-out of DACA provisions.  The suit outlines a number of arguments, including that the Trump administration violated the due process rights of the young immigrants impacted by the phase-out by failing to safeguard the personal information they provided to the government in order to gain DACA relief.  The suit also argues that President Trump violated the equal protection clause by targeting immigrants from Mexico and that the President has demonstrated “racial animus” based on past statements and actions.

We were pleased to be able to host this important and timely event, and we hope it that it offered some measure of clarity in an area of on-going uncertainty.  We will continue to monitor developments and offer guidance in any way we can.

In the meantime, we are very happy to hear about the partnership between the City of Boston, the Massachusetts Legal Assistance Corporation, and MLRI to create the Greater Boston Immigrant Defense Fund. The initiative will help provide much-needed legal assistance to immigrants facing removal proceedings.

In a statement on the announcement, BBA President Mark Smith expressed gratitude “to Mayor Walsh and the Fund partners for this ambitious effort to increase access to justice for some of the most vulnerable members of society,” noting also that, given the Boston Bar Foundation’s grant-making to several legal-services providers who represent immigration clients, “we are acutely aware of the need for legal representation in this area, and we stand ready to assist and support attorneys and organizations who commit their time and talent to this important cause.”

Be sure to stay tuned for more updates on this initiative and future Immigration-Related events here at the BBA, like the upcoming “Immigration Law as it Relates to Representing Health Care Providers” lunch program that will be held on September 26.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Welcome to the 2017 – 2018 Program Year!

It’s a lively time here at the BBA, and the building is abuzz with activity as Section Steering Committee meetings and brown bag and CLE programs are once again in full swing. With the new year underway, we wanted to take a moment to offer a refresher about our public policy opportunities and procedures.

Our Public Policy Procedures offer a great resource for learning about BBA policy processes and highlight our key focus areas. We evaluate opportunities to engage in public policy through the lens of our mission, which is to:

  • Increase access to justice,
  • Provide for the fair and efficient administration of justice, and
  • Enhance the quality of the law

The procedures also highlight the myriad of ways in which policy related to these areas manifests at the BBA, including:

  • Providing comments on proposed changes to court rules
  • Drafting, endorsing, or providing feedback on legislation
  • Filing and joining amicus briefs

Section Comments

One of the more common policy opportunities here at the BBA involves the solicitation of Steering Committee comments on proposed amendments to court rules. As part of this process, we send an email to the Section Co-Chairs, notifying them of an opportunity to comment, and if the proposed amendments do relate to their practice area, the Co-Chairs forward them along to the full Steering Committee for more in-depth review and potentially a discussion at their next meeting. When a Steering Committee has an invitation to comment on their agenda, I, or Mike Avitzur, the Director of Government Relations, will attend, take notes, answer any questions, and assist in the development of comments should the Steering Committee have them. Then, the comments are reviewed by BBA leadership and submitted by the BBA on behalf of the relevant Steering Committee(s).

We love facilitating the opportunity for Sections to weigh in from their particular, expert perspectives on important changes that may impact their practice area. This also provides the courts with an opportunity to hear directly from practitioners that will be affected by the proposed amendments. And the courts have a history of carefully considering the submissions and even adjusting the final versions of the rules as a result of the concerns and feedback raised in the Section comments.

For more reading on the Comment process and the impact of these submissions, be sure to check out:

BBA Government Relations Year in Review: Comments on Proposed Rules Changes

Busy BBA Sections Submit Comments on Five Proposed Rule Changes and New Rules

Comment Round up: Update on the Recent Submissions on Proposed Rule Changes by the Business and Commercial Litigation Section

Sometimes, however, the request for input will come not from the courts, but internally from the BBA. Here in the Government Relations Department, we often reach out to the Sections for their expert opinions and analysis on a range of other internal and external policy requests, including requests for the BBA to endorse legislation, requests for the BBA to file or join an amicus brief, and requests for the BBA to respond to various current event and policy developments locally and nationally. In these instances, we rely on Sections to weigh in from the perspective of their particular practice area as a way to ensure that we thoroughly understand the issue and any impacts it may have.

Public Policy Request

Beyond responding to requests for comment coming directly from the Government Relations Department, we also work with Sections, acting through their co-chairs, to prepare their own policy proposal requests by filling out and submitting this summary sheet. These proposals can seek a number of things from the BBA, including creating and drafting new legislation, supporting or opposing existing legislation (with or without further comments), providing comments on regulations, rules or standing orders, or something else entirely.

As you can see, these requests can be used to take much more nuanced positions than simply support or opposition to an existing piece of legislation. For example, just this year, the Trusts and Estates Section submitted a proposal seeking BBA endorsement of Massachusetts adoption of the Revised Uniform Fiduciary Access to Digital Access Act (RUFADAA). The BBA Council voted to endorse RUFADDA, even though, interestingly enough, none of the bills currently filed at the State House actually included the full RUFADAA language. Armed with BBA Council approval, BBA Trusts and Estates Section Co-Chair Joe Bierwirth, alongside members of the Standing Committee on Massachusetts Legislation Relating to Wills, Trusts, Estates, and Fiduciary Administration, testified before the Judiciary Committee on bills related to fiduciary assets, urging the committee to adopt full RUFADDA language instead of the bills currently filed.

Amicus Brief Request

While we already noted that Sections are sometimes asked to provide comments on amicus brief requests, members are also encouraged to submit their own requests if they believe the litigation at issue fits the specific criteria. According to the Amicus Brief Policy, the BBA will, “as a general rule…only file or join an amicus brief related to the practice of law or the administration of justice,” though, “possible exceptions will be considered on a case-by-case basis.”

The drafting or joining of a brief, however, takes a significant amount of time and resources, so we urge Sections to begin this process as early as possible. For requests that require the BBA to draft a brief, three months is typically required to obtain the appropriate approvals from BBA leadership and prepare the brief for filing. If, however, the request asks the BBA to join a brief being prepared by another party, only two months is required, with the draft brief being submitted to the BBA for review one month prior to the filing deadline.

Our Amicus Committee has a long history of submitting briefs on some of the most significant and timely matters facing the profession and the general public, including the Dookhan Drug Lab Scandal, Access to DNA Testing, and Diversity in the Legal Profession.

Read more about this important work:

BBA President Carol Starkey on 20 Years of the Amicus Committee

Amicus Committee History Part I

Amicus Committee History Part II

This year, we are excited to work with you on the full range of policy opportunities here at the BBA. Looking ahead, you can be sure that we will continue advocating for funding for civil legal aid, the Trial Court, and the Committee for Public Counsel Services, as well as our long-held criminal justice reform priorities, including opposition to the death penalty and repeal of mandatory minimums. The following months should prove especially exciting on the criminal justice reform front as our recently appointed Working Group is gearing up for release of its recommendations on improvements to current and proposed criminal justice reform policies.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association