Monthly Archives: May 2019

SJC Hears Arguments on Forensic-Testing Statute

You may recall that we used this space last month to cover a new amicus brief filed at the Supreme Judicial Court (SJC) by the BBA in the case of Commonwealth v. Johnson, arguing that an individual who maintains his innocence should be allowed to seek forensic testing to help prove his claim of innocence, even after serving his sentence, where his liberty continues to be restrained by his duty to register as a sex offender.

The law at issue in this case—known as Chapter 278A—originated from a 2009 BBA Task Force report that served as the genesis for its eventual enactment, the defendant completed his Massachusetts sentence and is not on parole or probation. But the BBA’s brief argues, citing analogous recent SJC rulings, that his liberty is otherwise restrained where his 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”, and that if the SJC, the state’s highest court, were to rule against Johnson on that ground, an entire class of potential applicants would see their efforts to overturn their wrongful convictions foreclosed, against the purpose and spirit of the statute..

The SJC held oral argument in the case on May 9, and from the start, the justices were interested in the question of what the Legislature could have meant in choosing the “otherwise restrained” language, putting that to counsel for both sides.  It didn’t take long for them to zero in on the arguments in the BBA’s brief, which they cited repeatedly from the bench.

But the BBA mentions didn’t stop there.  The justices had clearly done their homework, as several them drilled down into the BBA task-force report on wrongful convictions and even a Boston Bar Journal (BBJ) article on Chapter 278A—both of which were cited in our brief.

That 2009 task-force report was ultimately the catalyst for the Legislature’s 2012 enactment of Chapter 278A.  The report, Getting It Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts, made four sets of recommendations aimed at reducing the number of wrongful convictions in the Commonwealth—including proposed language for a new law to create the framework for individuals to assert their claims for access to forensic evidence, such as DNA, associated with the case that led to their convictions.

It appeared that the justices were interested in the BBA report inasmuch as the language it suggested—“Any person who has been convicted of a criminal offense in a court of the commonwealth, and is in custody or whose liberty is restrained as the result of that conviction”—could offer guidance in interpreting the language the Legislature later approved.

They also noted that the BBJ article presciently foresaw that this very issue would one day be before 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.”).

One final point made from the bench at argument, and one that echoes a core conclusion of the BBA’s task-force report, is that testing forensic evidence even after conviction is critical to maintaining the integrity of entire system of justice—not only because it helps correct, and even prevent, a wrongful conviction, but also because it allows law enforcement to continue to pursue the actual perpetrator.

The video of the Johnson argument can now be viewed on-line.  We are expecting a decision from the Court by the end of summer and will of course update you when it arrives.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Participates in ABA Day Lobbying

Leadership Visits Congress to Advocate
for Legal Aid and Loan Forgiveness

Every year, the American Bar Association (ABA) invites bar leaders from across the nation to Washington, DC, for a day of lobbying on issues of primary importance to the organized bar, known as ABA Day.  And each year, the BBA’s President and President-Elect make the journey, alongside their counterparts from the MBA, to meet with members of the Massachusetts delegation and relay our shared concerns.

This year was no different, with President Jon Albano and President-Elect Chris Netski traveled to Congress, joined by their opposite numbers at the MBA, Chris Kenney and John Morrissey.

The ABA selects two issues each time to ask its members to speak to their respective elected officials about.  This year, like every year in recent memory, one of those is the federal appropriation for the Legal Services Corporation (LSC), the leading funder of legal-aid providers throughout the US.  Our second topic for this event was the Public Service Loan Forgiveness Program (PSLF), established by Congress in 2008 to provide assistance with student debt to workers in public service who have made qualifying payments for 120 months (or 10 years).

BBA, MBA, and ABA reps meeting with Congressman Bill Keating

LSC funding

LSC is always on our minds when we sit down with members of Congress, because of the critical role it plays in promoting access to justice for those who would otherwise not be able to afford an attorney.  We are very fortunate in Massachusetts that our legal-services providers benefit from the state appropriation to the Massachusetts Legal Assistance Corporation (MLAC), but other states are much more reliant on federal funding—some of them entirely dependent.

This year, for the third straight time, the White House’s budget plan proposes to completely de-fund LSC, which would have devastating consequences for legal services nationwide.  There has been enough support for LSC in Congress to reject that effort, yet funding has, for many years now, failed to keep up with the demand.  This year, the LSC line-item stands at $415 million, a figure that we asked to Congress to increase to $593 million.  Even that significant boost, however, would leave LSC with a smaller budget, in inflation-adjusted dollars, than it had in the ‘80s and ‘90s.

We are also fortunate to be represented by a delegation that has offered steadfast support for LSC funding over the years, and we were met with nothing but confirmation of that support in our meetings with Congresspeople and their staffs.  We hope that we were able to offer arguments that they can use in convincing their colleagues to provide meaningful growth in LSC funding as the current federal budget cycle plays out.

The BBA has a unique story to tell on this issue, as we published a report in 2014 demonstrating that legal-aid funding actually provides a positive return on investment.  Other states have since produced similar findings, but we were especially gratified to learn, in our meeting in Representative Joe Kennedy’s office, that the night before, at an LSC event at the Supreme Court, Justice Elena Kagan had cited the BBA’s report!

BBA President Jon Albano and President-Elect Chris Netski, outside the US Supreme Court

Public Service Loan Forgiveness

PSLF recently marked its 10-year anniversary, which should have meant that its earliest participants would be starting to see approval of their applications for debt forgiveness by now, and on a rolling basis going forward.  However, the program has been plagued by numerous administrative problems—including lack of clarity on how to meet its requirements and mismanagement by the Department of Education and its private contractors—and, as a result, only a minuscule portion of applications have been approved.

Furthermore, political support for the program has waned, in part because of misleading estimates of its projected cost, and the White House has proposed ending it entirely.  This outcome would not only break faith with those who thought they had been fulfilling all the program’s mandates but also threaten to make it more difficult for public-service employers—including not only legal-aid attorneys, public defenders, and prosecutors, but also nurses, first -responders, teachers, social workers, and many other professionals—to recruit and retrain qualified staff to carry out their mission.

To help with our cause in DC, we contacted several Boston Bar Foundation grantees, to ask them to share stories about how PSLF has affected their work, and what its elimination would mean.  We heard back from several with powerful, personal stories about the sacrifices their staffers (or, in a couple of cases, directors) have made to pursue their commitment to working in the public interest, typically at much-lower salaries than they could obtain elsewhere. 

One message we heard more than once, and conveyed in our meetings in Congress, is that in legal services (as elsewhere, presumably) it’s beneficial to have staff who mirror their clientele.  In the absence of the federal government’s promise of assistance with student debt, it would be that much harder to meet that ideal.

As with our LSC advocacy, we found support in all the Congressional offices we visited.  Senator Ed Markey sought to connect with the grantees we’d heard from, so that he could better use those stories to make the case for continuing PSLF.  Representative Seth Moulton’s aide told us he wants to see the program not only retained but expanded.  And Representative Jim McGovern’s staffer said he’s looking at the issue through the lens of student debt generally—with PSLF being just one step that needs to be taken to address it.

MBA President-Elect John Morrissey, Senator Ed Markey, MBA President Chris Kenney, BBA President Jon Albano, BBA President-Elect Chris Netski

We’ll keep an eye on these two items throughout the budget process in Congress.  And we’ll be back in DC next year for ABA Day 2020.

—Michael Avitzur
Government Relations Director
Boston Bar Association