Posts Categorized: appeals court

Discussing the Death Penalty

As you likely know, the BBA has long opposed the death penalty, for more than 40 years to be exact.  Our reasoning is based on sound and practical principles – that the death penalty simply too fraught with peril, too likely to lead to the execution of the innocent, too likely to result in discrimination against racial and ethnic minorities, and too expensive and time-consuming—to play any role in our criminal-justice system.  We recently reaffirmed this stance and extended it to the federal death penalty with our 2013 report, The BBA and the Death Penalty and now we are proud to announce the release of the BBA’s first ever podcast, which takes the discussion of this position to the next level. With conviced murderer Gary Lee Sampson currently facing the death penalty at the Moakley Courthouse, the Co-Chairs of the BBA’s Death Penalty Working Group that produced that report, Martin Murphy (Foley Hoag) and retired Superior Court Judge Margaret Hinkle (now at JAMS), discuss their experiences with the death penalty and on the Working Group, and BBA President Carol Starkey shares her thoughts.

We have advocated against the death penalty through public education, such as in the aforementioned report and our 2015 press release urging the Department of Justice to seek a life sentence without parole instead of the death penalty for Boston marathon bomber Dzhokhar Tsarnaev.  We have made the same point when the Legislature has considered reinstating the death penalty and in amicus briefs including:

  • 1975 –Commonwealth v. O’Neal – Commonwealth v. O’Neal concerned the constitutionality of a law mandating use of the death penalty for a murder committed in the course of rape or attempted rape. The brief argued that the death penalty is not an effective deterrent for a rapist-murderer because such defendants would not consider variations in punishments, given their twisted and psychotic mental state. The brief also established mainstays of the BBA’s arguments against the death penalty: the possibility of mistake, the disparate impact on minorities, and the massive expenses inherent in pursuing the punishment. The Court rejected the state’s unconstitutional mandatory death-penalty provision.
  • 1984 –Commonwealth v. Colon-Cruz – Our brief challenged the constitutionality of a 1982 amendment to Article 26 of the Massachusetts Constitution, permitting the death penalty in the state, and related statutes providing for the imposition and execution of the death penalty in certain murder cases. In addition to reiterating our major tenets, the brief explained the major fiscal, emotional, and professional impacts of the death penalty cases on members of the bar:

Historically, the vast majority of capital defendants have been indigent. The immense defense costs thus fall on the Commonwealth and the private bar, especially through pro bono contributions.  It is unfair to impose the extraordinary burden of capital defense, often involving 8-10 years of complex litigation, on only a small segment of the bar, and life is too precious to be left to the defense of underpaid volunteers.

The psychological and emotional burdens on counsel, particularly on the defense, are immense. Aside from the onerous length and complexity of cases, defense lawyers are torn between close relationships with their clients and wanting to distance themselves in case of a death sentence.  In addition, prosecutors and defense counsel alike face unique community pressures.

Death’s severity and finality as a penalty and defense counsel’s failure to understand the nature and use of a bifurcated trial regularly lead to claims of ineffective assistance of counsel. Such claims degrade the bar, but are inevitable when death is at issue, a client poor, and an attorney court-appointed and dependent on the judiciary for a fee.

The SJC invalidated the constitutional amendment and statutes, in line with our brief, finding that they violated Article 12 of the Declaration of Rights of the Massachusetts Constitution by impermissibly burdening a defendant’s right against self-incrimination and his right to a jury trial.

  • 2005 –S. v. Darryl Green – The BBA submitted an amicus brief in this case that combined our opposition to the death penalty with advocacy in support of both access to justice and diversity. This brief on the federal death penalty, eight years before our aforementioned Report formally declaring opposition to the federal death penalty, was drafted by David Apfel and Julie Wade of Goodwin Procter LLP (now Goodwin).

The brief explains that African-American defendants in the Eastern Division of Massachusetts are likely to face an all-white jury, given population statistics, and that social-sciences statistics show that African-American defendants are far more likely to be convicted and sentenced to death when facing an all-white jury.  It details how African-American jurors simply bring a different perspective to their role – they are more likely to: believe minority witnesses are credible, harbor lingering doubts about defendants’ guilt, view defendants as remorseful, and consider mitigating evidence.  Furthermore, the brief opposes the District’s proposed solution – the empanelment of two separate juries: one to determine guilt and the other, totally different in composition, to determine whether to impose the death penalty.  It states that this “remedy” is “a mere baby step” and “little more than a modest gesture” that does not in any way guarantee fairness.

The Court ruled in line with this argument, finding that the District Court’s suggestion of multiple juries relied on a misinterpretation of the Federal Death Penalty Act, but it did not address the concerns over disparate racial impact, as expressed in the brief.

Despite a general trend away from capital punishment recently, in the last few days, the death penalty has again made headlines.  Georgia executed its U.S. leading ninth inmate of the year.  The Georgia case described in the article suffers from some of the hallmarks we’ve highlighted in our opposition.  For example, the crime took place in March 1990, but the defendant was not sentenced to death until his second trial eleven years later.  Even more concerning, the case raises major due process issues:

[Defendant William Sallie’s] lawyers argued that he should, once again, be granted a new trial because a woman who ultimately ended up on the jury during the second trial lied during jury selection and failed to disclose her own history of domestic violence, messy divorces and child custody fights — traumatic events that they said were “bizarrely similar” to Sallie’s case.

But no court ever properly considered the alleged juror bias, his lawyers argued in a recent legal challenge, because the issue wasn’t discovered until more than a decade later, and courts had ruled that Sallie’s petitions raising that evidence were procedurally barred because he missed a filing deadline by eight days at a time when he didn’t have a lawyer.

The defense team also made those arguments in a clemency petition to the Georgia Board of Pardons and Paroles, urging it to act as a “fail safe” against a miscarriage of justice. But the board, the only authority in Georgia with power to commute a death sentence, declined to spare Sallie’s life after a clemency hearing Monday.

Earlier in the week, Florida appealed the state Supreme Court’s interpretation of a US Supreme Court decision finding unconstitutional the state’s system of allowing judges, instead of juries, to find the facts needed for a death sentence.  The US Supreme Court held that this gave judges too much power, violating the Sixth Amendment right to trial by jury.  From the Miami Herald:

At the time of the January [US Supreme Court] ruling, Florida’s system allowed jurors by a simple majority to recommend the death penalty. Judges would then make findings of fact that “sufficient” aggravating factors, not outweighed by mitigating circumstances, existed for the death sentence to be imposed, a process known as “weighing.”

Florida lawmakers hurriedly rewrote the law this spring, requiring jurors to unanimously find that at least one aggravating factor exists before a defendant can be eligible for a death sentence and requiring at least 10 jurors to recommend death for the sentence to be imposed.

The Florida Supreme Court then found the new law unconstitutional, because it did not require unanimity in imposing the death penalty (something Judge Hinkle experienced firsthand in a Florida death penalty case and discusses in the podcast).  The state’s attorney general is appealing the ruling to the US Supreme Court for discretionary review.

As always, we’ll be on the lookout for latest developments in capital punishment and continue our advocacy in opposition.  We hope you enjoy the podcast and we’ll keep you posted on the forthcoming second episode which will cover our role in a major state scandal…

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Stepping Up: Bridgeman Argument and the BBA’s Mission

We hope by now you have seen BBA President Carol Starkey’s letter to our members, in which she makes the case that no matter how challenging we may find the tone of the national dialogue, the BBA remains committed to its mission.  This includes our work to assure the protection of due process rights (including for non-citizens, who may be particularly concerned of late about their rights under the law), freedom from discrimination, and access to justice for all.  One place we see these tenets in action is in our amicus work.  From promoting diversity and inclusion to opposing capital punishment to protecting access to justice and attorney-client privilege, we have been, and we will remain, at the forefront of many of the biggest issues in the Commonwealth and country.

In the latest example, we watched oral argument this week on Bridgeman v. District Attorney for Suffolk County (SJC-12157).  Our amicus brief argues for a global solution in the so-called Annie Dookhan cases—specifically that the Court should vacate, without prejudice, the adverse disposition on all drug related charges where Dookhan was the primary or secondary chemist, but that the Commonwealth should be granted a period of one year, or longer as the Court deems appropriate, to allow the District Attorneys to re-prosecute individual charges.  Any charges not re-prosecuted within that time period should be automatically dismissed with prejudice and further prosecution barred.

This solution places the burden on the Commonwealth, rather than on Dookhan defendants, in addressing the adverse disposition affected by Dookhan’s misconduct.  It is based in principles central to the BBA’s mission – access to justice and the fair administration of justice.  Read more about our brief and the background of the Annie Dookhan scandal in our recent blog post.

Beyond the arguments contained in the BBA brief, its mere existence was cited at oral argument by Matt Segal, legal director for the American Civil Liberties Union in Massachusetts (ACLUM), as an example of the bar stepping up to meet the many challenges raised by the Dookhan scandal.  Segal’s answer came in response to Justice David Lowy, who had asked whether the bar could “step up” to assist an overburdened Committee for Public Services (CPCS) in handling the remaining unresolved Dookhan cases, which we now know amount to upwards of 20,000.

Segal went on to explain that while the private bar, CPCS, and the courts have all done their part in a tremendous effort toward resolving the mess left by Dookhan, any further “stepping up,” such as through lawyer volunteers to represent Dookhan defendants, would be an inappropriate bail-out for the Commonwealth, which should bear sole responsibility for fixing the problem.  Segal reminded the Court that, this case arises from the Commonwealth’s evidence, the very evidence that in turn has been tainted by a Commonwealth employee.  We couldn’t agree more, and our brief makes that point as well.

The justices and attorneys also probed a number of other issues pertinent to our brief, mission, and Presidential letter:

  • At what point does systemic misconduct rise to a level meriting the sort of global remedy contemplated here? Attorneys for Bridgeman argued that the sheer number of outstanding cases was important in implicating the integrity of the criminal justice system, conceding that if misconduct affected only one or even, say, 40 cases, they would have more confidence in the type of solution proposed by the District Attorneys of notifying defendants and handling each of their cases individually.  The timing also played a role, as more than four years after the scandal came to light, Bridgeman’s attorneys were understandably unwilling to accept as a viable solution the possibility of re-sending notices to Dookhan defendants giving them the option of challenging their convictions because it would violate principles of timely administration of justice.

Attorneys for the District Attorney’s Office argued that the systemic misconduct had been and would continue to be effectively remedied through the diligent work of many individuals and institutions in the state.

  • Can the justice system handle a case-by-case review of affected defendants? CPCS attorney Benjamin Keehn argued that his agency simply did not have the capacity or funding to handle the volume of cases that would be presented if even a fraction of the defendants seek to exercise their rights to try to challenge their convictions.  The District Attorney’s Office countered that these concerns were speculative as it was up to defendants to come forward and based on early returns, few seem to be doing so.  Defendants argued that this was due to shortcomings in the notice the DA’s Offices sent to defendants, because a large majority of defendants would be expected to come forward if they received and understood the notice.

The District Attorneys claimed that notice had been adequately provided and explained their contention that defendants were affirmatively choosing not to challenge their convictions, an assertion that was met with skepticism from Justice Geraldine Hines.  They also argued that a decision in a prior Dookhan case, Commonwealth v. Scott, 467 Mass. 336 (2014), required defendants to demonstrate a reasonable probability that knowledge of Dookhan’s misconduct would have materially influenced his decision to tender a guilty plea.  A global solution would, they argued, undermine this requirement.

  • What role do collateral consequences play? Both Chief Justice Ralph Gants and Justice Barbara Lenk seemed clearly focused on the indirect impacts that potentially-tainted convictions are having, and may yet have, on Dookhan defendants.  Of particular note is whether they may be susceptible to deportation as a result: Gants pointed out that while a case outcome of Continuance Without a Finding (CWOF) may not technically be an adverse disposition in the state, it could have grave implications for a defendant’s federal immigration status.  Lenk later hit on the same point, explaining that Dookhan defendants could unjustly face deportation or other collateral consequences, such as challenges finding housing or jobs, as a result of such a conviction.

The BBA has considered such collateral consequences before in relation to this case and criminal justice reform generally.  We are continuing that conversation and look forward to taking an active role in the upcoming legislative session, when we anticipate criminal justice reform legislation based in part on the recommendations of the Council of State Governments’ review of Massachusetts laws.

We are extremely proud of the work of our Amicus Committee on this case.  They represent one small slice of the BBA’s membership, but, as with so many of our volunteers, their work touches directly on our core values.  As President Starkey described, we are dedicated to our work supporting meaningful access to justice and protecting due process, and we hope you will join us in that commitment.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Carol Starkey on 20 Years of Amicus

Ever since my first meeting at 16 Beacon Street nearly 16 years ago, the Boston Bar Association has been an invaluable resource for me professionally.

As lawyers, we are all in pursuit of professional excellence.  But we also need support and intellectual nourishment outside of our firms or organizations in order to be, and remain, successful in this competitive industry.  And for me, those resources always have been found at the BBA.

In addition to the rich educational programming and the ability to develop a strong network, perhaps what is most exciting about the BBA as an organization is its capacity to bring some of the brightest, most powerful people in the legal industry together, regardless of where they practice or how they identify themselves, in order to help solve problems affecting all of us.

Over my nearly 3 decades of practice, I have experienced how much we can do – as lawyers – when we step outside our own individual practice silos and work together on common issues in the profession.  For me, nothing demonstrates this more clearly than the work of the BBA’s Amicus Committee.

If you’ve been following Issue Spot’s coverage of the Amicus Committee this month, you know that through this important group of volunteers, the BBA has weighed in on some of the most important – and sometimes controversial – issues of our time.

In 2002, we submitted a brief in support of marriage equality in Goodridge v. Department of Public Health, a landmark case which helped paved the way for equality across the nation.

In 2012 – and again in 2015 – the BBA filed a brief in Fisher v. the University of Texas, supporting diversity in higher education as a means of increasing diversity in the legal profession.

The Goodridge and Fisher cases demonstrate that when the BBA takes a position on an issue – like marriage equality or diversity in higher education  – it is not just words to be taken lightly, but a firm belief that is reflected in our core values.

In addition to the issues that attract a national spotlight, our Amicus Committee has allowed the BBA to argue successfully for some of the bedrock principles that affect the very core of what it means to practice law.

In keeping with our long-standing advocacy on behalf of access to justice, in 1990 we filed a brief regarding House Bill 5858 An Act Establishing the Economic Stability and Recovery Compact arguing that a tax on legal services would infringe upon each individual’s ability to, in the words of the Massachusetts Constitution, “obtain right and justice freely, and without being obliged to purchase it.”

And just last year, the BBA filed an amicus brief in Commonwealth v. Wade, a case in which we argued there had been a misinterpretation of a new post-conviction forensic testing law – a law that the BBA helped create – resulting in a forced waiver of attorney-client privilege.  The SJC agreed with our brief, clarifying how the law should be read and protecting the confidence of attorney-client communication.

Over the years, courts have, time and again, cited BBA amicus briefs, both during oral arguments and in their written decisions.

The dedication and talent of our Amicus volunteers have helped shape the BBA into an organization whose opinion matters. We are the ones the legal community turns to – and listens to – in matters of law.

That is why during today’s Annual Meeting, I gave the 2016 President’s Award to the more than 100 volunteer attorneys who have helped contribute to BBA amicus briefs throughout the years as Committee Chairs, members and brief writers.

It is through the talented and dedicated volunteers on our Amicus Committee that we’ve been able to do this work, the collective force of which not only stood up for individuals’ rights, but forever changed all of our lives by re-shaping the legal landscape in which we live.

Carol Starkey
President

BBA Amicus Brief History Part I: Protecting Access to Lawyers and Attorney-Client Privilege

We are proud to be honoring our Amicus Committee at the 2016 Annual Meeting Luncheon, one of the largest annual bench/bar events in Massachusetts.  The keynote speaker will be Professor David B. Wilkins, the Vice Dean for Global Initiatives on the Legal Profession and Director of the Center on the Legal Profession at Harvard Law School. A prolific author and leading scholar on the profession, Professor Wilkins is well known for his research on the impact of globalization on the legal market, diversity in the profession and the various career trajectories of attorneys.

However, in this blog we would like to focus on our honorees, the BBA’s amicus volunteers, from Chairs and members of the Committee to the drafters of our many briefs.  For more than twenty years, the BBA has had a voice in some of the most important legal issues of our time through the filing of amicus briefs.  We look forward to honoring over 100 individuals who have given their time and talents to this work – the collective force of which has not only defended and protected individuals’ rights, but forever changed the legal landscape in which we live and practice.  This week and next, we will look at some of the most important themes covered in some of our most well-known briefs.

Access to a Lawyer

Tax on Legal Services

The BBA has long defended access to lawyers for those in need, both the constitutional right to a lawyer for indigent criminal defendants and much-needed representation for low-income civil litigants.  The first of these cases was in 1990, related to a then proposed tax on legal services.  On July 7, 1990, the Massachusetts General Court passed House Bill 5858, “An Act Establishing the Economic Stability and Recovery Compact.”  The legislation sought to impose a tax on certain services rendered by lawyers and consumed within the state.  Two days later, Governor Michael Dukakis, noting “grave doubts” about the constitutionality of the bill, asked the SJC to consider the issue.  The SJC requested amicus briefs specifically from the BBA and MBA, and we were happy to oblige.

A mere four days after this request, the BBA and MBA submitted a joint brief, authored by  lawyers from Choate, Hall & Stewart (today, Choate) and Hale and Dorr (prior to becoming WilmerHale) successfully arguing against the tax because it violated both the Massachusetts and United States Constitutions.  Specifically, it explained that the bill violated Article XXX of the Massachusetts Constitution regarding separation of powers by overextending legislative authority to the regulation of the practice of law and attorney conduct, which are regulated exclusively by the judiciary.  It also unconstitutionally infringed upon the SJC’s exclusive powers under the same Article by imposing administrative bookkeeping responsibilities upon the legal profession that conflicted with the ethical obligations embodied in the rules of professional conduct contained in SJC Rule 3:07.  Going a step further, in a footnote, the brief explained that enforcement of the bill would require lawyers to violate attorney-client privilege by disclosing confidential information regarding the nature of legal services rendered in particular transactions.  This level of reporting would “chill clients’ willingness to consult their attorneys and, ultimately, undermine public confidence in our legal system.”

The brief also argued that the bill violated the Fifth (limiting police procedures, outlawing unjust imprisonment and double jeopardy, and protecting a person from being compelled to be a witness against himself in a criminal case), Sixth (right to a speedy and public trial, impartial jury, and to know your accusers and the nature of charges and evidence against you), and Fourteenth (equal protection and due process of law) Amendments of the US Constitution.

As applied to legal services, the bill was argued to be unconstitutional under the Massachusetts Constitution for violating the Excise Clause and Article 11 of the Declaration of Rights, which states:

Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.

The language in this Article has been applied to prohibit the “imposition of unreasonable charges” for access to the courts, which the brief argues such a tax would be.  The charges proposed by the statute at issue are unreasonable because they would not be uniformly applied and the difference in taxpayers’ liability was not rationally related to differences in the nature or degree of services provided by the Commonwealth to different taxpayers in connection with the administration of justice.  Also, unlike other court fees and costs, the revenue from the tax would be unrestricted in its use, whereas court fees typically must have a reasonable relationship to the administration of justice.

The legal services tax provision took effect on December 1, 1990, and two days later, Governor Dukakis signed legislation repealing the tax.  Yet this was not the end of the conversation.  In 2011, a Tax Expenditure Commission comprehensively reviewed the state’s then tax structure and considered new taxes, including this sort of tax on services.  The BBA took the opportunity to remind the public of this brief, and ultimately the Commission’s report did not recommend  this sort of tax.

Lavallee v. The Justices of the Hampden Superior Court and Carabello v. The Justices of the Holyoke District Court

Fourteen years later, we were having a similar discussion, this time specifically for attorneys representing indigent criminal defendants.  In Lavallee v. The Justices of the Hampden Superior Court and Carabello v. The Justices of the Holyoke District Court, the BBA submitted a brief by three Choate, Hall & Stewart (today, Choate) attorneys, Jack Cinquegrana, Michelle Dineen Jerrett, and Terrence Schwab.  The case arose out of necessity – thanks to the Gideon decision, all criminal defendants have a right to counsel.  If they cannot afford one, the state has a responsibility to provide one.  In Massachusetts, this has been provided under statute since 1983 by a combination of Committee for Public Counsel Services (CPCS) staff attorneys and contracted bar advocates.

As of summer 2004, the hourly compensation scheme for bar advocates had not changed since 1986.  Due to the low rates ($30 to $54 an hour depending on the case) there was an increasing shortage of lawyers, particularly in western Massachusetts.  In early May, 2004, no attorneys reported for duty in Hampden County court to accept new criminal court case assignments, resulting in at least 19 indigent defendants being held in custody without counsel.  CPCS and the ACLU filed a petition in the SJC on behalf of those defendants.

The BBA stepped up to file a brief arguing that the state needed to adequately fund public defenders in order to attract a sufficient number of competent counsel and thatthe state had been underfunding indigent defense services since their inception.  On July 28, 2004, the SJC found that the defendants in these cases were being deprived of their right to counsel under the Massachusetts Declaration of Rights and urged all three branches of government to work together to fashion a remedy.  In August, the Legislature passed a bill to increase hourly rates for certain types of cases through a $16.3 million supplement to the fiscal year 2005 budget and create a commission to study indigent criminal defendant representation.  The final report recommended further increases over a multiyear period.  (For a more comprehensive history of CPCS and bar advocate compensation, see here).

A familiar debate continues today, and the BBA is continuing to weigh-in, most recently advocating for pay raises for CPCS staff attorneys and Assistant District Attorneys so that their base pay equals that of executive-branch attorneys.

Attorney-Client Privilege

The BBA frequently uses the amicus brief platform to argue for the preservation of the attorney-client privilege.  Attorney-client privilege is one of the oldest privileges recognized under law, with the intent of encouraging open and frank communication between attorneys and their clients to promote the broad public interest in the observation of law and administration of justice (see Upjohn v. United States).  The Ninth Circuit has called the privilege “perhaps the most sacred of all legally recognized privileges and its preservation is essential to the just and orderly operation of our legal system (see United States v. Bauer).

RFF Family Partnership v. Burns & Levinson

Two recent cases best illustrate our commitment to this principle.  In 2013, Bob Buchanan of Choate and also a long time member of the BBA’s Ethics Committee and Board of Bar Editors, led the team authoring our brief in RFF Family Partnership v. Burns & Levinson.  “Of Counsel” drafters included Harold Potter, Jr. of Holland and Knight LLP and William Southard of Bingham McCutchen LLP (now Morgan Lewis).  The case concerned whether confidential communications between law firm attorneys and a law firm’s in-house counsel concerning a malpractice claim asserted by a current client of the firm are protected from disclosure to the client by the attorney-client privilege.  In the case, the law firm Burns & Levinson was accused of malpractice in its representation of plaintiff RFF Family Partnership, LP in a commercial foreclosure property transaction.  After the attorneys on the case received a letter laying out the malpractice allegations, they consulted with Burns & Levinson partner, and BBA Council member, David Rosenblatt, who was designated to respond to ethical questions and risk management issues on behalf of the firm and had not at the time worked on any issues in the RFF matter.  Burns & Levinson did not bill RFF for any of the time devoted to these internal communications.

The BBA brief asked the court to state a clear rule applying attorney-client privilege when a lawyer consults with in-house ethics counsel, arguing that clients benefit when lawyers promptly consult in-house ethics counsel, that there is a sound legal basis for applying the privilege in these circumstances, and there is no basis for carving out a “fiduciary exception” to the privilege.  Specifically, the brief lays out a test for immediate application of attorney-client privilege in these sorts of consultations:

  1. In-house counsel has been formally or informally designated to provide advice to the law firm…
  2. In-house counsel does not work on the particular client matter that presents an issue; and
  3. The time spent by in-house counsel on advertising the law firm is absorbed by the law firm and is not billed or charged to any client.

The SJC concluded that confidential communications between law firm attorneys and in-house ethics counsel concerning malpractice claims of a current client are not subject to different standards under a “fiduciary exception” and are protected from disclosure by the attorney-client privilege “provided that (1) the law firm has designated an attorney or attorneys within the firm to represent the firm as in-house counsel, (2) the in-house counsel has not performed any work on the client matter at issue or a substantially related matter, (3) the time spent by the attorneys in these communications with in-house counsel is not billed to a client, and (4) the communications are made in confidence and kept confidential.”  Look familiar?

This decision and the, shall we say, slightly modified BBA test, have been cited by other states considering the same sorts of issues.  We are proud that our brief had such an impact and feel strongly that these are the sorts of issues on which the BBA must be a thought leader given the import of the privilege to the legal profession.

Commonwealth v. Wade

More recently, we defended attorney-client privilege in the case of Commonwealth v. Wade, in addition to arguing for the correct interpretation of the Commonwealth’s new post-conviction DNA testing law.  Followers of this blog know this case well – see our coverage throughout the case: December 2015 brief filed, January 2016 oral argument, August 2016 breaking down the SJC decision.  For those of you who may have missed it, the case revolves around interpretation of Chapter 278A, in particular, 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.  The BBA advocated for passage of the law establishing this language, starting with our 2008 Task Force to Improve the Accuracy and Reliability of the Criminal Justice System, which published its Getting It Right report in 2010.  In 2012, the Governor signed a law that 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 corresponding recommendation contained in Getting It Right.

The trial judge in the Wade case interpreted Ch. 278A, Section 3(b)(5) to require a lawyer to prove all of the prongs, rather than applying the disjunctive reading, as our brief argues and we believe the Legislature intended, that a lawyer must prove only a single prong.  Furthermore, the trial judge interpreted the fourth prong to require the attorney to show the “primary cause” or “actual reason” that DNA testing was not pursued at trial, applying a subjective standard to the “reasonable attorney” test.  Based on this interpretation, the trial judge required the defense attorney to violate attorney-client privilege by testifying on why the now requested DNA testing was not sought at the initial trial.

Our amicus brief, authored by a team from K&L Gates including former BBA Council member Mike Ricciuti, Kathleen Parker, and Patrick McCooe, argued that the fourth prong calls for an objective standard and that the law does not actually require a “primary cause” finding – 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 would have sought the requested analysis.  Thus, the judge erred in violating attorney-client privilege, and, in doing so, frustrated the purpose of the law in a way that could potentially chill future claims, denying wrongfully-convicted individuals a pathway to establish their innocence.

The SJC heard oral argument on January 11 (watch the video here).  The Justices pushed both sides to explain 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.”

We couldn’t agree more.  And the SJC apparently feels the same, as the 6-0 decision issued July 29 held in line with the arguments of our brief, that it was an abuse of discretion for the trial judge to deny Wade’s motion for DNA testing based on his misinterpretation of the statute requiring the attorney to demonstrate the “primary reason” he did not seek the requested analysis. The decision makes clear that the statute’s plain language means each of the five prongs in the statute “provides a moving party with alternate pathways to establish that he or she is entitled to the requested [DNA] analysis . . . . Indeed it would be nonsensical to attribute a conjunctive meaning to the word ‘or’ as used in this section… ” (p. 12-13).  On the trial judge’s requirement of finding the “primary reason” or “actual reason” why DNA testing was not pursued at trial, the Supreme Judicial Court decision explains that this language does not appear in the act, and there is no other language indicating such a requirement (p.15).  Instead, the statute’s “reasonably effective attorney” test “is an objective one” (p. 16).  Thus, the trial judge erred when finding that attorney-client privilege had been waived, forcing trial counsel to reveal privileged communications, and denying Wade’s motion to strike those answers.  The “reasonably effective attorney” test “does not require testimony or an affidavit from trial counsel” (p.20).

The court reversed the rulings denying scientific testing and the motion to strike the protected attorney-client privileged testimony and remanded the case to the Superior Court for an order permitting the requested testing.

The outcome was truly a victory for access to justice and the practice of law.  We are proud to have played a role in helping to protect access to post-conviction DNA testing, a major tool in overturning wrongful convictions, and again safeguarding one of the most important tenets of legal practice in attorney-client privilege.

And these two cases are merely the tip of the iceberg.  The BBA has protected attorney-client privilege in each of the following cases as well:

  • 2007 – Bismullah v. Gates – The BBA signed onto a brief drafted by the Association of the Bar of the City of New York and filed on behalf of a group of detainees at the U.S. Naval Base at Guantánamo Bay, Cuba, in the U.S. Court of Appeals for the D. C. Circuit. The brief sought a protective order governing proceedings against Respondent Secretary of Defense Robert M. Gates in order to reasonably protect access to classified information while addressing communications between the detainees and their counsel. The brief argued that legal representation is impaired if lawyers are not able to visit their clients as they find necessary to obtain the information they need and to consult with and inform their clients, as well as to establish the trust necessary to effective representation. On July 20, 2007, the appeals court ruled in line with our brief, that the Guantanamo captives’ attorneys should be allowed to review all the classified evidence in their clients’ cases.
  • 2007 – Hanover Ins. Co. v. Rapo & Jepsen Ins. Svcs., Inc. and Arbella Mutual Ins. Co. – This interlocutory appeal from the entry of a discovery order in an automobile dispute between insurers presented issues regarding attorney-client privilege and work product doctrine in the context of a joint defense agreement: whether Massachusetts law recognizes a joint defense privilege and whether an oral joint defense agreement is enforceable. The brief, authored by John Shope and Katherine Schmeckpeper of Foley Hoag, supported the appellants’ position that Massachusetts recognizes the common interest doctrine, sometimes known as the joint defense privilege. This doctrine, which is recognized in the majority of other states and federal law, permits parties with common interests to share communications protected by attorney-client privilege or the attorney work product doctrine without waving applicable immunity from disclosure. This facilitates the efficient resolution of litigation by increasing the sharing of information and division of labor among counsel working towards a common goal.  The SJC decision recognized the use and validity of joint defense agreements, and the exception to waiver of the attorney-client privilege under the common interest doctrine.
  • 2006 – ACLU v. NSA – the BBA signed onto this brief behind the leadership of then Amicus Committee Chair Deborah Birnbach, Goodwin. The brief challenged the National Security Agency’s wiretapping program on the grounds that it violated attorney-client privilege.  The issue arose out of a classified NSA foreign intelligence program, in existence since at least 2001, which was used to intercept international telephone and internet communications of numerous people and organizations within the United States without warrants, allegedly because of their history of communicating with people in or from the Middle East.  The amicus brief argued that the surveillance program undermined attorney-client privilege because the individuals accused by the government of wrongdoing should have access to legal advice, but such advice can be effective only if lawyer-client communications are conducted in confidence, uninhibited by fears of government wiretapping.  The Sixth Circuit Court of Appeals ruled against the brief, finding that the plaintiffs could not show that they had been or would be subjected to surveillance personally, and therefore lacked standing before the court.  One year later, the US Supreme Court turned down an appeal from the ACLU.
  • 2006 – Suffolk Construction Co. v. Commonwealth of Massachusetts, Division of Capital Asset Management – in a brief authored by Edward Colbert III, then of Looney & Grossman LLP, now with Casner & Edwards, the BBA supported DCAM’s position that government attorneys and their clients should not be exempted from attorney-client privilege. The brief argued on policy grounds that documents of government agencies/employees should enjoy protection from disclosure under the public-records law if the documents are subject to attorney-client privilege.  Aside from the hallowed position of the privilege in the history of law, the brief argued that clients of government attorneys include members of the public served by public agencies who deserve the privilege.  In addition, public officials and employees would be unfairly disadvantaged if their attorney communications were not protected.  Finally, the public interest is served by placing government attorneys on equal professional and intellectual footing as private attorneys, promoting the highest standards of legal excellence among all attorneys, whether they are engaged in public or private practice.  The SJC ruled in-line with our brief, protecting attorney-client privilege for government lawyers.
  • 2000 –U.S. v. Legal Services of New York City – the BBA signed onto a brief defending attorney-client privilege for legal services recipients. The case revolved around a dispute on whether the Inspector General could subpoena legal-services lawyers at Legal Services for New York City (LSNY) about their clients’ particular needs, in order to link clients’ names to their needs.  The brief argued that forced disclosure of this information would violate attorney-client privilege, harming clients and deterring them from seeking legal counsel, especially in sensitive cases such as domestic abuse, public benefits, child abuse or neglect, or mental health and disability rights.  The District of Columbia Court of Appeals held against our amicus brief, permitting enforcement of the Inspector General’s subpoena.

As you can see, the BBA’s appellate advocacy through amicus briefs has had a major impact on the law in Massachusetts and beyond.  Stay tuned for more amicus highlights next week, when we will cover briefs on diversity and inclusion and opposition to capital punishment.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Discussing the Benefits of Judicial Diversity

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BBA Civil Rights and Civil Liberties Section Co-Chair Rahsaan Hall moderating the panel discussion.

On June 27, we were pleased to host another important discussion at the BBA, this one on The Benefits of Judicial Diversity.  It featured a panel of esteemed individuals including:

  • Roderick L. Ireland, Chief Justice (Ret.) of the Supreme Judicial Court and Distinguished Professor, School of Criminology and Criminal Justice, Northeastern University
  • Angela M. Ordoñez, Chief Justice of the Massachusetts Probate and Family Court
  • Andrea C. Kramer, former Chief of the Civil Rights Division, Massachusetts Attorney General’s Office
  • Lon F. Povich, Chief Legal Counsel, Office of the Governor of Massachusetts

The panel was moderated by Rahsaan D. Hall, of the ACLU and Co-Chair of the BBA’s Civil Rights and Civil Liberties Section.

While the idea of judicial diversity is widely lauded, it is important to consider the factual reasons and underlying statistical support for its importance.  Judicial diversity is absolutely necessary for two major reasons – 1) it serves as a descriptive or symbolic representation of society at large, increasing public confidence in the judiciary; and 2) it serves as substantive representation, whereby a judiciary with more diverse judges assures diversity in perspective, experience, and empathy, potentially leading to more fair outcomes.  Related to this latter point, implicit bias, the idea that judges (and everyone else, for that matter) experience subtle cognitive processes that result in biases in judgment or behavior, has been a hot topic recently.  While the courts are taking steps, including trainings and a bench card with strategies for judges to recognize and overcome these biases as much as they can be eliminated, the argument goes that on a more diverse bench, the competing implicit biases will cancel each other out in order to achieve systemic fairness.

Statistics clearly show the importance of diversity on the bench, especially in certain areas of law.  For example, employment discrimination cases with an African American judge are more than two times more likely to result in a finding of racial harassment than those with only white judges.

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Similarly, in voting rights cases, having an African American judge on the panel increases the likelihood of finding a civil rights violation by 18%.

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For affirmative action cases before the U.S. Courts of Appeals, the panel is almost twice as likely to vote in favor of affirmative action if it contains at least one African-American judge.

jud diversity slide - appeals court affirmative action cases

In criminal sentencing, the greater the percentage of female judges on a district’s bench, the smaller the gender disparity.  Perhaps this can be explained because female judges are more likely than their male counterparts to see women as able to commit crimes.  In cases on LGBTQ rights, women are more than 20% more likely to find a constitutional violation.

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Chief Justice Ireland gave an example from his time as a Juvenile Court judge when diversity played a role in providing perspective.  He explained that he regularly made custody decisions and felt that his upbringing may have made him more tolerant.  When a social worker would suggest that a child should be removed from a home that was in relative disrepair or had cockroaches, he explained, an individual from a middle class background might see the situation as abhorrent and meriting removal.  However, Chief Justice Ireland felt that he could sympathize with the lower-income parents who were doing their best in a challenging situation and might be more open to their retention of custody if he felt it was in the child’s best interest.

Judges also face bias.  In a set of 2014 studies completed by Massachusetts General Hospital psychologists and Harvard University professors, 10 years of anonymous judicial evaluations by attorneys demonstrated that black judges are rated far more negatively than their white counterparts.  They concluded, “the general theme that emerged [from focus groups] was the idea that persons of color do not match the expectations of what a judge should look like, and therefore confront more doubt, mistrust, and interpersonal tensions than do non-minority judges.”

Chief Justice Ordoñez explained that though she has gone through four phases of judicial evaluations, the one she remembers most vividly came from early in her career and accused her of being a judge only because of her minority status.  She said it made her feel horrible and was scarring.  She has since worked hard to become part of the solution, working to reform the evaluation questions and process to best and holistically measure the attributes and improvement needs of judges.  Andrea Kramer stressed that the issue is not about diversity versus competency – there are of course many competent judges and candidates across all categories, and with more diverse judges, there will likely be fewer evaluations based solely on negative perceptions of a judge’s background.

While Massachusetts ranks 11th nationally on a 2016 judicial diversity study conducted by the American Constitution Society, it still has a long way to go.  Currently, 56% of state court judges are white men, 30% are white women, 7% are men of color, and 7% are women of color.  Compare this with the state’s general population, comprised of 36% white men, 38% white women, 12% men of color and 13% women of color.  Still, as is often the case, Massachusetts is outpacing most other states.  Nationally only 30% of state judges are women (37% in MA) and the percentage difference between judicial representation and general population representation for individuals of color is 18% (compared with 11% in Massachusetts).

So what can we do to improve the status quo?  Governor’s Chief Legal Counsel Lon Povich spoke at the event (as he and we have before) about his office’s need for top candidates to  pursue judgeships.  It’s a simple message – the only way to have great and diverse judges is for great and diverse lawyers to apply.  Povich and the Governor have done their part by assembling a diverse Judicial Nominating Commission (likely the most diverse ever) to consider applicants, and by continuing to appoint diverse candidates – of the 17 judges appointed by Governor Baker so far, twelve are women, two are African American, and three self-identified as LGBTQ.  Now it’s up to the bar to apply for future openings.

Chief Justices Ireland and Ordoñez both spoke about their experiences with this process.  Ireland stressed that it was only a job application and urged applicants to keep trying until they get the job, without getting discouraged if at first they do not succeed.  He talked about not making it to the bench on his first application to the Boston Municipal Court and about later applying to the SJC three times before being selected to the state’s highest court, where he was eventually appointed Chief Justice.  Chief Justice Ordoñez and Andrea Kramer noted that organizations like the Women’s Bar Association help candidates with the application process and with mock interviews.

As always, we will do our best to keep you updated on the judicial application and review process.  We hope that diverse candidates will continue to apply so that the judiciary can increasingly reflect the diversity of the society that it serves.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

 

SJC Overhaul

Gov Baker SJC Nominees

It’s been quite a week, with major implications for justice in the Commonwealth for years to come, as the Governor announced his three nominees for upcoming Supreme Judicial Court (SJC) vacancies on Tuesday.  The SJC is not only the highest appellate court in the state, issuing approximately 200 full bench written decisions and 600 single justice decisions annually, but its justices are also responsible for the “general superintendence” of the judiciary and the bar.  This function includes making, revising, and approving rules for the operations of the courts and providing advisory opinions to other branches of government.  For example, over the past few months, the BBA has taken part in commenting on proposed revisions to civil procedures for various court departments aimed at improving the cost-effectiveness of litigation.  This overhaul originated with the SJC and final revisions will be approved by an SJC led committee before being codified.  It is all but impossible to overstate the huge role this court plays for justice and legal practice in Massachusetts.

What is Changing?

Therefore, it is truly remarkable that this Court will be going through such a major change in its makeup in so short a time.  With five of the seven justices leaving by the end of next year, the first three replacements are only part of the picture.  The justices leaving before the court’s next session in September are Robert Cordy, Francis X. Spina and Fernande R.V. Duffly.

  • Robert Cordy – In February, Justice Cordy announced his early retirement (at age 66, four years short of the mandatory retirement age). He was appointed to the SJC by Governor Paul Cellucci in 2001.  Justice Cordy graduated from Harvard Law School and started his legal career with the Massachusetts Public Defenders Office.  He then worked for the Department of Revenue, the State Ethics Commission, as a Federal Prosecutor in the US Attorney’s Office in Massachusetts, as a partner at the law firm Burns & Levinson, and as Chief Legal Counsel to Governor William Weld.  Prior to his appointment to the SJC in 2001 by Governor Paul Cellucci, Cordy was Managing Partner in the Boston office of the international law firm of McDermott, Will & Emery.  He has served as Chair of the SJC Rules Committee and in leadership roles in a number of other court committees, including those focused on media and capital planning.  He has not yet announced his plans after stepping down from the state’s highest court.
  • Fernande Duffly – will retire on July 12, at the age of 67, a move she explained is to help her husband recover from a recent surgery. A native of Indonesia and a graduate of Harvard Law School, Justice Duffly started her legal career at a Boston law firm then known as Warner and Stackpole.  She served on the Probate and Family Court from 1992-2000, the Appeals Court from 2000 to 2011, and was appointed to the SJC in 2011 by Governor Deval Patrick, becoming the first Asian American member of that court.  Throughout her career she has demonstrated a commitment to supporting women and diversity in the law.
  • Francis Spina – From Pittsfield, Justice Spina graduated from Boston College Law School before working in legal services for two years. He eventually became an assistant district attorney before becoming a partner in a Pittsfield law firm.  He was appointed to the Superior Court in 1993, then to the Appeals Court in 1997, and to the SJC in 1999 by Governor Paul Cellucci.  He will reach the mandatory retirement age of 70 on November 13, 2016, but is stepping down on August 12.

Of the seven current SJC Justices, Spina and Cordy are the only two who were nominated to the SJC by Republicans (both by Paul Cellucci).  Obviously that is going to change soon as Republican Governor Charlie Baker starts to shape the court.  His three nominees to fill these spots are all former prosecutors and current Superior Court judges, Kimberly S. Budd, Frank M. Gaziano, and David A. Lowy.

  • Kimberly Budd – A resident of Newton and graduate of Harvard Law School, Budd began her legal career with the Boston law firm Mintz Levin. She then became an Assistant U.S. Attorney before serving as University Attorney for Harvard and later as Director of the Community Values program at Harvard Business School before her appointment to the Superior Court in 2009 by Governor Deval Patrick.  She served as a member of the BBA’s Education Committee from 2006 to 2007 and Council from 2003 to 2005 prior to her appointment to the bench.  After becoming a judge, she served on the Boston Bar Journal Board of Editors from 2012 to 2014.  Budd will be the second black female justice on the SJC after the 2014 appointment of Justice Geraldine Hines.
  • Frank Gaziano – Graduate of Suffolk University Law School, he started his legal career at the Boston law firm of Foley, Hoag & Eliot (now Foley Hoag). He also worked as a prosecutor in the Plymouth County District Attorney’s office and the U.S Attorney’s office.  Gaziano was appointed to the Superior Court in 2004 by Governor Mitt Romney.  He served on the Boston Bar Journal Board of Editors in 2011 and 2012.
  • David Lowy – A resident of Marblehead, and graduate of Boston University School of Law, David Lowy has served as a judge since 1997, first in District Court and then, since 2001, in Essex Superior Court. Prior to his appointment to the bench he worked as an associate at the Boston office of the law firm Goodwin, Procter & Hoar (now Goodwin Procter) and as an assistant district attorney.  He also worked as Deputy Legal Counsel to Governor William Weld from 1992 to 1995, under whom Governor Baker also served as a cabinet secretary.

The Process

These three nominees emerged thanks to the hard work of a special 12-member Supreme Judicial Court Nominating Commission (Special JNC) established by the Governor in February to assist the current Judicial Nominating Commission (JNC) in vetting all of the SJC applicants and nominees.  BBA President Lisa Arrowood is a member of this panel along with a number of former BBA leaders.  The Special JNC is co-chaired the Governor’s Chief Legal Counsel Lon Povich and former BBA President Paul Dacier, who is also chair of the JNC and executive vice president and general counsel of EMC Corporation.  The other members include:

  • Former SJC Chief Justice Roderick Ireland;
  • Roberto Braceras, Vice-Chair, JNC, and Partner, Goodwin Procter LLP;
  • Brackett Denniston, retired General Counsel of GE;
  • Retired Superior Court Justice Margaret Hinkle;
  • Marsha Kazarosian, immediate Past President, Massachusetts Bar Association, and partner, Kazarosian Costello;
  • Joan Lukey, Partner, Choate Hall & Stewart, LLP;
  • Elizabeth Lunt, Of Counsel, Zalkind Duncan & Bernstein;
  • John Pucci, Partner, Bulkley, Richardson and Gelinas, LLP; and
  • Carol Vittorioso, Vice-Chair, JNC, Partner, Vittorioso & Taylor.

We have explained the JNC before, but, to briefly review, the JNC is a group of diverse individuals appointed by the Governor (the regular JNC has 21 members, while the Special JNC has 12), with great knowledge and experience with the court system.  Members of the bar must have at least seven years of practice experience.  The JNC provides a first layer of review for judicial nominees – identifying and inviting applications by qualified individuals, reviewing applications, and interviewing candidates.  The group conducts votes requiring an increasing number of approving Commissioners at various steps of the process, narrowing down the list of individuals until a final vote requiring a 2/3 majority is conducted to see which applicants’ names will be submitted to the Governor for consideration for nomination.  They typically provide between three and six candidates for each vacancy.  The Governor’s Office then selects its candidates, here, Budd, Gaziano, and Lowy.

What’s Next?

The next step is approval by the Governor’s Council, a group of eight individuals elected every two years and the Lieutenant Governor, who serves ex-officio as president of the Council.  The Councilors review the nominee’s backgrounds, interview them, and hold open hearings where their supporters and opponents have the chance to speak.  The three candidates have already been approved by past iterations of the Council as they are all currently on the bench, but nothing can be taken for granted.

In fact, the process is already garnering media attention as the Council has taken issue with Lt. Gov. Karyn Polito’s plan to preside over the confirmation hearings.  Councilors typically preside over confirmation hearings for lower court judges, but it has been common practice in recent years for the lieutenant governor to preside over hearings for SJC nominees.  However, Councilors challenged Polito, alleging that her presence at the upcoming confirmation hearings will be an unfair publicity grab and was disrespectful to the Council members.  Polito cited historical precedent for her intended role.

The schedule for nominee hearings is set and we look forward to keeping you updated on their progress.  The hearings are all at 9:00 am in Room 428 of the State House as follows:

  • July 6: Judge Frank Gaziano
  • July 20: Judge David Lowy
  • August 3: Judge Kimberly Budd

Finally, keep in mind that this is only the beginning.  The SJC overhaul continues next year as Justices Margot Botsford and Geraldine Hines will both reach mandatory retirement age, Botsford in March and Hines in October.  While we don’t know who will come to the fore as nominees then, a couple of qualifications to look for include:

  • A resident of western Massachusetts – Francis Spina, the only Justice from this region, hails from Pittsfield, and is retiring this year. Nominee Kimberly Budd is the daughter of former U.S. Attorney Wayne Budd, a native of Springfield, but she grew up in Peabody and lives in Newton.  When asked about geographical diversity at his press conference to introduce the nominees, the Governor urged patience.
  • A judge from the Appeals Court – Governor’s Councilor Eileen Duff questioned, as did the Boston Herald, why none of the current nominees came from this court, experience she felt would prepare them well for the SJC.

Throughout this process, the Governor has frequently repeated that he is simply looking for the best candidates.  He and his office continue to encourage strong candidates to apply and are committed to continuing the remarkable traditions of the SJC.  However, the maintenance of a great and diverse bench relies on a great and diverse candidate pool.  The Governor has done his part by creating a remarkably diverse JNC and Special JNC under all metrics from geography to demographics to practice field and size.  It is up to candidates now to apply.  We look forward to seeing what the state’s highest court looks like at the end of this process.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Discussing the US Supreme Court from Inside and Out

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The Supreme Court is Like Mordor … One does not simply walk into it.  This and other insights – Special masters! Hotly contested rivers! Quills!  And everything you need to know to practice before SCOTUS  – emerged at Wednesday’s Conversation on the US Supreme Court program at the BBA.  Moderated by BBA Amicus Committee Chair Tony Scibelli, the event featured a lively discussion of the US Supreme Court by keynote speaker Ethan Torrey, Legal Counsel to the Court, Mark Fleming, WilmerHale, Traci Lovitt, Jones Day, Kevin Martin, Goodwin Procter, and Dalila Wendlandt, Ropes & Gray.

The Office of Legal Counsel

ET smallTorrey began his keynote address by giving attendees some insight into his job.  He is one of two attorneys for the Court, and they share the services of a single paralegal.  They are responsible for providing legal services to the Court as an institution and advising the Court on certain Court and case related matters.  More specifically, they advise the Justices and the Court on ethics, contracts, police and security issues, litigation (often involving protesters and First Amendment claims), and proposed amendments to the federal rules, as well as monitoring legislation of interest to the Court.

The Office of Legal Counsel also provides the Court guidance on petitions for extraordinary relief (such as writs of habeas corpus and writs of mandamus) and cases arising under the Court’s original jurisdiction, often involving disputes between states.  These disputes have a history dating back to before the Constitution and the Supreme Court’s original jurisdiction was contemplated in Alexander Hamilton’s Federalist Paper number 80.

Nowadays these cases often involve disputes about borders related to geographical and alluvial changes, interstate compacts (which are ratified by Congress and hold the force of federal laws), escheat claims (competing claims to abandoned property), tort claims (often akin to public nuisance claims, addressing such issues as river pollution), water rights, and claims challenging regulations in other states.  Procedurally, states seeking relief from the Court must first file a motion for leave to file, and the Court exercises this jurisdiction sparingly.  If the motion is accepted, the Court generally then appoints a “special master” who gathers evidence, hears testimony, and files a report with the Court.  The parties then file exceptions to the report, and the Court hears oral argument on the exceptions before making its decision, often considering not only the facts of the case, but also the equities involved before fashioning a remedy.

Getting to SCOTUS

KM smallKevin Martin talked about the first step in getting your case to the Supreme Court – the briefing process.  He urged attendees, as angry as you may be after an adverse ruling, to carefully consider whether they should actually file the case for certiorari (“cert”), asking whether there might be any potential strategic advantages to waiting, both from a business or practical perspective – where there’s a conflict among the circuits, might it be better to let an unfavorable ruling stand than to put favorable rulings elsewhere at risk – and also in terms of possible changes on the Court.  Once the decision is made, the most important element of any petition for cert is to convince the Court that there is a split in federal circuit courts that needs immediate resolution.  He suggested involving interested groups, potentially as amici at this early stage.

If you are rejected, don’t lose heart: roughly 10,000 certs are filed annually, and only 60-80 are actually heard by the Supreme Court, so the odds are stacked against you.  Mark Fleming pointed out that this situation is increasingly dire as the Court has recently taken fewer cases annually, and as of now has granted cert in only 12 cases for next Term.

If you are one of the lucky few to be granted cert, the merits briefing stage is similar to that in federal courts of appeals.  The Supreme Court took the case likely in recognition of the circuit split, so the Justices will be looking for you to make strong arguments based on precedent (mostly from the Supreme Court), and policy concerns.  Here again, amici can be helpful in making policy arguments and providing the Court with the information they need to understand complex issues and facts.

You Got There!  Now What…

MF smallMark Fleming gave a complete rundown of what it’s like to have your day before the Supreme Court.  It was a fascinating look at the nitty-gritty elements of this highest practice.  Here is his advice:

  • As with any appellate argument, you need to be ready for any questions . . . and for no questions. He anticipates questions by looking at the opponent’s briefs, lower court opinions, amicus briefs, and briefs and oral arguments in all prior relevant cases.  He also noted the value of moot courts.

He also stressed the importance of knowing EVERYTHING – in one case he argued, Fleming was well served by doing his homework when a Justice asked about a case cited in an amicus brief allowing him to clarify, to a judge who clearly hadn’t gone quite that deep into the record, that the entire opinion offered less than one-half a sentence of analysis on the issue at-hand.

  • Have a plan for oral argument. The Justices rarely let you speak for more than a few minutes at a time without interruption, but be prepared in case that happens.  Also, your plan can serve as a roadmap to help you get back to your main points in between questions.
  • Arguing before the Supreme Court is unlike arguing before any other court.   First off, you face at least 90 minutes of logistics.  Even if you are arguing the first case at 10:00 am, you need to get to the Court around 8:00 am to get through security.  Until 9:00 you are simply held in a public space full of tourist chatter, after which you are brought to a lawyers’ lounge for a briefing before you undergo a second security check (be sure to bring a quarter for the locker to store everything you’re not bringing before the bench!) and are brought to the courtroom.

At that point the fun is only beginning.  Once there, you need to figure out what side you will be arguing from – generally, from the bench’s perspective, the petitioner is on the judges’ right and the respondent is on the left . . . but if the federal government is arguing (even as amicus), it and any party it supports are always on the left.  At 10:00 the Justices enter, but you still don’t get to deliver your painstakingly prepared remarks – first, opinions are delivered, and then the court handles bar admissions (“a really nice ceremonial thing” that he recommends pursuing), all before oral arguments begin.  If you weren’t stressed out before, you certainly will be by that time.  And if your case isn’t first on the docket, get enough breakfast and/or coffee to keep you going.  After your 30 minute argument flies by, you at least get a keepsake – by tradition dating back to the Court’s earliest days, goose feather quill pens are laid out on the counsel tables , which lawyers are encouraged to take as souvenirs.  Fleming brought his to show to the group.

MF feather quills smallArguing Before the Court

Traci Lovitt spoke about her experience in the Solicitor General’s office and the techniques they teach their attorneys about arguing before the Court.  Dalila Wendlandt spoke about her experience of working on a Supreme Court case as a new lawyer – so new, she had to be pulled out of her firm’s orientation to start working on the brief.  Here are their pointers for argument:

  • Be ready to make the difficult case. When Wendlandt first read the case against the client, she knew they were facing an uphill climb and it was time to “roll up her sleeves.”  The argument in her case danced around a number of complex issues including flying in the face of popular and long-standing Supreme Court precedent and some challenging factual circumstances.

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  • Know your audience. Wendlandt stressed that the only way she was able to overcome the challenges noted above was by studying the positions of the Justices and attempting to carve out arguments that would earn them the support, one by one, of at least five, the magic number of majority.  Everything was in play and some inconclusive footnotes on obscure opinions ended up playing a major role in revealing arguments that would appeal to certain Justices.
  • Focus on an active bench – if you haven’t fielded any questions for 15 minutes or so, sit down! An absence of questions indicates a conviction for your side; don’t UN-convince them.  This rarely happens, especially recently when Justices often ask (and answer) questions, instead of letting the advocates speak, as they work to figure out their own positions.  Lovitt wondered aloud whether this dynamic might change with the passing of Justice Scalia, and noted that in one of her oral arguments, she fielded (or at least, was asked) 18 questions in the first 10 minutes.
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Thus, the order and form of answering is extremely important.  Lovitt was trained to give answers couched in explanation, first noting how many points she would make and even signaling the number of points with her fingers.  She then tries to give at least a short answer on each point before delving in deeper if given the time.  This roadmap answer format at least gives Justices who support your argument the tip that they can follow up if you are interrupted again, allowing you to complete your answer.

  • Unless you are very experienced, do not use the names of Justices in your argument. You will mess up leading to a sharp rebuke and often a joke.  Kevin Martin shared that when an attorney arguing in Bush v. Gore called Justice Stevens, “Justice Brennan,” and Justice Souter, “Justice Breyer;” Justice Scalia piped in, “I’m Scalia.”
  • Be assertive. Arguing before the Supreme Court is intimidating, but you need to make your points and answer the big questions.  This may mean giving Justices brief answers to their questions before returning to the larger points you want to make, or even *gasp* politely explaining that you need to explain another point before addressing their answer.  And if the light goes on to signal that your time is up, but you haven’t finished responding to the last question, you need to ask, deferentially, for a few seconds more.  Lovitt told the story of one practitioner who froze in that moment, like “a deer in the headlights,” failing to make one final, critical argument.

Thank you again to our panelists and moderator and to everyone who attended this fascinating discussion.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

 

BBA Brief Fights for DNA Testing and Attorney-Client Privilege

We are pleased to be able to once again report on the great work of the BBA’s Amicus Committee.  In the last few months alone they have helped achieve access to justice for abused youths, worked to secure a right to counsel in parental guardianship actions, opposed improper attorney sanctions, and defended race-conscious college admissions policies as a means to assuring a more diverse bar.  And in the latest example of their tireless efforts, last week we filed a brief in the case of Commonwealth v. Wade (SJC-11913), urging the Supreme Judicial Court (SJC) to correctly interpret the Commonwealth’s new post-conviction DNA testing law and defending attorney client privilege.  This case holds particular importance for the BBA as we have a long history of protecting attorney client privilege and were also instrumental in drafting and advocating for the DNA testing law at issue here.

The case first came to our attention over the summer and our interest only intensified when the SJC requested amicus briefs in late October asking:

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, see c. 278A, § 3 (b) (5) (i), or whether the defendant must also show that a reasonably effective attorney would have in fact sought the analysis had it been available.

After extensive discussions in our Amicus Committee and Council, we couldn’t be happier with the resulting brief drafted by a team of lawyers from K&L Gates, LLP.  Former BBA Council Member and Chair of the BBA Drug Lab Crisis Task Force, Mike Ricciuti led the team, which also consisted of Kathleen Parker and Patrick McCooe.

The brief makes two major points – that the lower court judge erred in interpreting the requirements of G.L. c. 278A and, in doing so, 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, Getting it Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts, 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.”

Subsection 3(b)(5) of the law allows for 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.  These prongs are identical to the recommendation contained in Getting It Right, except that the report recommends putting “or” after every clause, whereas the enacted text uses semicolons and then puts “or” before the last prong. The significance of the fact that both approaches emphasize the disjunctive nature of the list of prongs will become evident shortly.

(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.

Background

In 2014, the defendant sought DNA testing pursuant to c. 278A in an attempt to overturn his conviction, arguing, under the first prong, that the DNA testing he then requested had not been performed in 1997 because it had not yet been developed.  He also initially made an argument, under the fourth prong, that a reasonably effective attorney would have sought the analysis.  The judge, however, ruled that the statute required the defendant to show the “actual reason” that no DNA testing was requested in 1997, even though the test being requested was not then available.  In order to determine the “actual reason,” the judge, over objection, compelled the testimony of the defendant’s trial attorney. The defendant had not waived attorney-client privilege or submitted any affidavit from his trial attorney, but the Commonwealth argued that any time a movant pleads that his trial attorney was not reasonably effective, he has waived attorney/client privilege as to all communications with trial counsel.

The defendant sought interlocutory relief from this decision, and, in a G.L. c. 211,§ 3, memorandum, SJC Chief Justice Gants held that the Commonwealth could subpoena the trial attorney but his testimony would be limited by attorney-client privilege and any waiver by the defendant.  At the hearing, when the Commonwealth began questioning the trial attorney about privileged communications, the defendant waived the “reasonably effective” prong, insisting that he could still meet the statutory requirements on the unavailability of the requested DNA analysis at the time of his conviction, under the first prong.

The defendant argued that the Commonwealth was asking the trial attorney about privileged communications, which the defendant had not waived, and that abandoning the “reasonably effective” prong obviated the need for his testimony.  The motion judge disagreed, finding that the defendant had waived his attorney-client privilege.  Although the trial attorney repeatedly refused to answer the Commonwealth’s questions, citing privilege, he eventually relented under the threat of contempt by the court.

The motion judge ultimately concluded that it had been a strategic decision not to request DNA testing at the time of trial.  The motion judge rejected the defendant’s argument that, to get testing he need only show that the analysis was not performed at the time of his conviction “for any” of the five alternative reasons under G.L. c. 278A, § 3(b)(5).

BBA Amicus Brief

Our amicus 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 that 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 could not have sought the requested analysis because the requested analysis did not exist at the time of the conviction.

The brief also argues that the trial judge’s erroneous focus on the “primary cause” that DNA testing was not pursued at trial resulted in the “deeply flawed conclusion” that the defendant had waived attorney-client privilege.  The brief makes clear that there was no express or implied waiver of the privilege and the trial judge’s interpretation threatens to undermine the effectiveness of Chapter 278A, which calls for an objective test of what a reasonably effective counsel could have done, and not a subjective analysis of what trial counsel actually did.  If the statute were to be interpreted as the trial judge espouses, with both the “primary cause” and subjective analyses, it would frustrate the purpose of the law and chill access to justice, potentially denying wrongfully-convicted individuals a pathway to establishing their innocence.

The case is scheduled for standby oral argument on Thursday, December 10.  If it is not heard that day, it will be argued on Monday, January 11th.  We look forward to watching the broadcast and reading the decision in the coming months and will, as always, keep you updated on how the case is decided.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

From Boston to the Vatican and Beyond: Haskell Cohn Honoree Chief Justice Rapoza

The BBA is proud to be honoring Appeals Court Chief Justice Phillip Rapoza with the 2015 Haskell Cohn Award for Distinguished Judicial Service on September 24 (click here for tickets and details).  The award was established by Mintz Levin for one of its founding members, Haskell Cohn, in 1975 in honor of the 50th anniversary of Cohn’s admission to the bar.  It is presented to a member of the Massachusetts judiciary, or a resident of Massachusetts who is a member of the Federal Judiciary, who has distinguished himself/herself in a manner that calls for special recognition.

A tax and estate planning expert, Haskell Cohn served as BBA President from 1969 to 1971.  He was known for espousing many of the tenets central to the BBA’s mission.  As BBA President, he helped spark a fundraising drive to raise money for law school scholarships for students of color.  He urged lawyers to go beyond the narrow confines of the profession and was a driving force behind a BBA effort to help expand affordable housing stock in Boston.  He also cared deeply about the quality of the judiciary and served as Chair of the Joint Bar Committee.

The 31st Haskell Cohn Award recipient, Justice Phillip Rapoza, served as Chief of the Appeals Court from October 17, 2006, to June 30, 2015, when he retired from the judiciary.  He had served on the Appeals Court since 1998, and prior to that was a District and Superior Court Judge since he was appointed to the bench in 1992.  As Chief Justice, he played an important role in setting many key precedents for Massachusetts.  He also served admirably as chief administrator, managing all of the other Appeals Court justices and staff.  Finally, he worked to modernize the appeals court as a strong proponent and early adopter of electronic filing technology.

Justice Rapoza’s influence extends far beyond Massachusetts.  He is the grandson of Portuguese immigrants and is a leader in the Portuguese-American community in Massachusetts.  He is the first Portuguese-American judge to serve at the appellate level in Massachusetts. He served on the US Council of Chief Judges of State Courts of Appeals, lead the Commission for Justice Across the Atlantic, a judicial exchange program between the US and Portugal, and is President of the International Penal and Penitentiary Foundation.  In his role with the IPPF, he was recently invited to address the pope.  He used this opportunity to speak on the rehabilitation and reintegration of criminals, an issue we have discussed here a number of times beforeIn his speech he described the negative impact of high incarceration rates globally and the lack of rehabilitative opportunities for inmates.  He encouraged justice reinvestment through the use of alternative sentences, intermediate sanctions, and diversionary programs that would benefit the individual, their family, and the community at large.  The BBA has long supported these sorts of measures to end mass incarceration and we are pleased to see Justice Rapoza addressing them on a world stage.

Justice Rapoza is also a leader in the field of international criminal justice, working to spread the rule of law in the developing world, including serving on UN-backed war crimes tribunals in East Timor and Cambodia.  From 2003 to 2005, he took an unpaid leave of absence from the Appeals Court to work for the United Nations, serving in East Timor as an international judge and coordinator of the Special Panels for Serious Crimes.  The Special Panels was a war crimes tribunal established by the UN to prosecute crimes against humanity and other serious offenses committed during the Indonesian occupation of East Timor.

Justice Rapoza has demonstrated his remarkable commitment to justice and the rule of law both at home and around the world.  His work illustrates how a state court judge can have an influence around the globe, and he stands as a reminder of the excellence of the Massachusetts judiciary.  We look forward to presenting him with our highest recognition for the judiciary, and we hope to see you there.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association