BBA Files Amicus Brief in Defense of Post-Conviction Access to Forensic Testing

Commonwealth v. Johnson Case Addresses Who Is Eligible to Apply Under Chapter 278A

In keeping with its long-standing commitment to facilitating access to justice and upholding the integrity of the criminal-justice system, the BBA this week filed an amicus brief arguing that an individual should be allowed to seek forensic testing to help prove his claim of factual innocence, even after serving his sentence, where his liberty continues to be restrained by his duty to register as a sex offender.

BBA Background

The law at issue in this case is Chapter 278A of the General Laws, which originated from a 2009 BBA Task Force report that served as the genesis for its eventual enactment in 2012.  That report, Getting It Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts, offered a variety of recommendations to reduce the likelihood of wrongful convictions and thereby improve public safety.  Those prescriptions included not only a post-conviction procedure by which people could pursue forensic testing on evidence involved in their cases, such as DNA, but also changes to eyewitness identifications, police interrogation techniques, and trial-court practice.

Section 2 of Chapter 278A limits who has standing to request such testing, to someone who “has been convicted of a criminal offense in a court of the commonwealth [and] is incarcerated … is on parole or probation or whose liberty has been otherwise restrained as the result of a conviction.” 

After its enactment, two members of the Task Force, David M. Siegel and Gregory I. Massing, published an article on the statute in the Boston Bar Journal.  As our amicus brief indicates, they were already contemplating that sex offender registration likely qualifies as a restraint on liberty under the statute, long before that issue reached the SJC: “Arguably eligibility to file a motion under chapter 278A would also extend to those whose liberty is restricted by being required to register as a sex offender.  See Doe v. Sex Offender Registry Bd., 447 Mass. 768, 775 (2006) (‘In the context of sex offender registration, an offender’s liberty and privacy interests are constitutionally protected, and deprivation of these interests generally requires procedural due process.’).”

This is not the first time that the BBA has weighed in with an amicus brief on Chapter 278A.  In Commonwealth v. Wade (“Wade III”), the BBA again argued—ultimately successfully—on behalf of a defendant whose petition for forensic testing had been denied based on an overly restrictive reading of a separate threshold requirement in the statute. 

Specifically, Sections 7(b) (3) and 3 (b) (5) of Chapter 278A allow for post-conviction forensic testing if the defendant can show, among other things, that the requested testing had not been conducted at the initial trial for any one of five reasons outlined in the statute, including inadmissibility of the evidence, or the subsequent development of new DNA tests.  Wade contended that the test sought had not existed at the time of his trial, which the SJC agreed is enough to satisfy one of the requirements of the new law.

The case reached the SJC after a lower-court judge had denied Wade access to post-conviction DNA testing by imposing an additional requirement not found in the statute: identification of the “primary cause” or “real reason” for a lack of any DNA testing at the time of trial.

The instant case

In the case of Commonwealth v. Johnson (SJC-12673), scheduled to be argued on May 9th before the SJC, the defendant completed his Massachusetts sentence and is not on parole or probation.  He is, however, currently incarcerated in Florida for failing to register as a sex offender, as required as a result of his conviction here.  The SJC invited amicus briefs on the following issues:

Where the defendant pleaded guilty in Massachusetts to indecent assault and battery, received a sentence of time served, was required to register as a sex offender as a consequence of the conviction, and was subsequently convicted of failing to register and is currently incarcerated in a Federal prison in Florida for that offense, whether he is eligible to file a motion for postconviction scientific testing under G. L. c. 278A, § 2 (requiring, among other things, that moving party “has been convicted of a criminal offense in a court of the commonwealth [and] is incarcerated in a state prison, house of correction, is on parole or probation or whose liberty has been otherwise restrained as the result of a conviction”); specifically, (a) whether his current incarceration is “as a result of” the initial conviction of indecent assault and battery for purposes of the statute, and (b) whether the requirement that he register as a sex offender is itself a restraint on his liberty as a result of his conviction within the meaning of the statute.

The BBA’s brief focuses exclusively on (b) above, citing analogous recent rulings from the SJC and elsewhere, to argue that his liberty is “otherwise restrained” where his sex-offender registration requirements create affirmative burdens that are tantamount to the conditions placed on probationers and parolees, with the same potential of immediate arrest and incarceration for failure to comply.

The brief, written by Meredith Shih of Wood & Nathanson, LLP, states that Johnson is exactly the type of defendant the Legislature had in mind when it included the language “otherwise restrained”, pointing out that “the Court has repeatedly acknowledged that sex offender registration seriously implicates liberty interests, necessitating due process protections.”  The brief goes on to say:

[I]ndividuals required to register as sex offenders are uniquely subject to some of the most severe collateral consequences of any criminal defendants. Johnson’s brief succinctly catalogs the many onerous requirements and restrictions imposed upon registered sex offenders in Massachusetts. … This Court has also observed, in extensive detail, the abundance of “exceptionally burdensome” requirements accompanying registration since the passage of significant revisions to the statute after 1999. See Doe, 473 Mass. at 304-308. Beyond the practical burdens accompanying registration, this Court also found that sex offenders are subject to immense discrimination, through both physical restriction and societal ostracization, on a level without parallel for any other type of criminal defendant. See, e.g., id. at 308 (discussing the “profound humiliation and community-wide ostracization” accompanying registry requirements, in addition to “housing and employment discrimination, harassment, and assault”); Doe v. City of Lynn, 472 Mass. 521, 530 (2015) (in striking down an excessively broad residency restriction targeting sex offenders, “we note the grave societal and constitutional implications of the de jure residential segregation of sex offenders. . . the days are long since past when whole communities of persons, such Native Americans [sic] and Japanese–Americans may be lawfully banished from our midst”).

If the SJC were to rule against Johnson on the issue of restraint of liberty, an entire class of potential applicants would see their efforts to overturn their wrongful convictions foreclosed, frustrating the purpose and spirit of the statute.  “Such an outcome would have damaging consequences not only for access to justice in all those cases,” said Shih, “but also for public faith in the justice system’s ability to identify and undo wrongful convictions.”  Indeed, the hope is that the very existence of Chapter 278A should also encourage greater accountability and prospective effort to prevent wrongful convictions from happening to begin with.

Speaking on Johnson and Wade, Erin Higgins of Conn Kavanaugh, co-chair of the BBA’s Amicus Committee, said, “Both these cases demonstrate our steadfast adherence to the principle of access to justice and our interest in rectifying wrongful convictions.”

A ruling in the case is expected by August.

—Michael Avitzur
Government Relations Director
Boston Bar Association