Posts Categorized: SCOTUS

BBA Government Relations Year in Review: Part I

As 2016 draws to a close, we wanted to take a quick look back at our year in Government Relations.  If you want to see a Boston Bar Association and Boston Bar Foundation-wide view of the world, I highly recommend checking out Our Year in Review, which provides both a look back and a look ahead at some of our biggest initiatives.

So what was on our minds in GR?  By the numbers, amicus cases ruled the day.  Roughly grouping our 63 Issue Spot posts of 2016 by subject matter, the numbers look like this:

  1. Amicus Cases (including Commonwealth v. Wade and Bridgeman v. District Attorney): 12 posts
  2. Criminal Justice Reform: 9 posts
  3. Rules Changes and BBA Comments thereon: 7 posts
  4. A three-way tie between: Court News, Diversity and Inclusion, and Budget Advocacy: 6 posts a piece
  5. Civil Legal Aid: 5 posts
  6. The remaining 12 posts cover an array of topics including the future of the legal profession, legislation of interest to certain Sections, and programs at the BBA.

Amicus Committee

So let’s start with the top – 2016 was a huge year for the BBA’s Amicus Committee.  Led by Co-Chairs Tony Scibelli, Barclay Damon, and Liz Ritvo, Brown Rudnick, the Committee celebrated the release of three major decisions in-line with our briefs, filed another brief in one of the most important currently pending cases, and received a BBA award that honored its history, marking 20 years of taking part in seminal cases.

  • March 10: BBA Seeks Justice for Vulnerable Youths Through a Two-Pronged Strategy – In early March, the SJC released its full opinion in Recinos v. Escobar. The ruling held in line with our brief, which we signed onto with a coalition of concerned organizations and individuals, and which was drafted by former BBA President Mary Ryan along with her team at Nutter, McClennen & Fish, LLP – BBA Business and Commercial Litigation Section Steering Committee member Cynthia Guizzetti (now at E Ink Corp.) and Mara O’Malley. It argued that the Probate and Family Court has equity jurisdiction over abused, abandoned, and neglected youths up to the age of 21 to enter the necessary findings as a predicate for status as special immigrant juveniles (SIJ’s).  It also made the case that the Massachusetts Declaration of Rights supports this sort of equitable remedy. The brief further argued that such individuals are “dependent on the court” to make such a finding because they have been mistreated and because such a finding is required to qualify for SIJ status.
  • June 23: Increasing Diversity in Legal Practice at the US Supreme Court – In June, the US Supreme Court released its decision in Fisher v. University of Texas (II), upholding the school’s race-conscious admissions policy with a finding that it does not violate the Equal Protection Clause. The Court reached the outcome we argued for in our amicus brief, drafted by BBA Secretary Jon Albano (who had previously drafted our brief in the related case known as Fisher I) and Sarah Paige, both of Morgan Lewis, that experimentation in admissions is necessary to balance the pursuit of diversity with constitutional requirements of equal treatment.  This ruling means that the University of Texas, as well as other schools across the country, may continue to experiment with admissions policies intended to create a more racially inclusive classroom, and society.

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 safeguarding one of the most important tenets of legal practice in attorney-client privilege.

  • October 26: BBA Amicus Advocates for Resolution in Dookhan Scandal – On October 24, we filed a brief, written by our Amicus Committee Co-Chairs, arguing for a so-called global remedy in Bridgeman v. District Attorney (SJC-12157), the latest case related to the Annie Dookhan/Hinton Drug Lab scandal. The remedy proposed in our brief would place the burden on the Commonwealth to re-prosecute within a set time period (to be determined by the Court) any Dookhan cases with dispositions adverse to the defendant that have not been re-adjudicated since 2012, when the scandal first came to light.  If cases are not re-prosecuted within that time period, the brief calls for their dismissal with prejudice, barring further prosecution.  The brief explains that the BBA’s interest in the case is twofold: to facilitate access to justice for all defendants in criminal cases and to ensure the timely, fair, and efficient administration of justice.  Not only will this global solution secure justice for the defendants, but it will also start to relieve the significant burden on the justice system, currently facing the prospect of addressing more than 20,000 unresolved cases individually.  Oral argument was held on November 16 and we look forward to a ruling from the court in the coming months.

Criminal Justice Reform

Always a major issue for us, criminal justice reform was the subject of frequent discussions in the Sections and amongst leadership, and this is likely only the beginning as we look forward to playing a large role in advocacy related to the forthcoming criminal justice reform package anticipated this legislative session.

  • February 4: Focus on Reducing Recidivism – In late January, we used the honoring of Roca, a community based non-profit organization committed to helping 17-to-24-year-olds succeed in re-integrating to society, at the 2016 BBA Adams Benefit (Reminder: please join us on January 28 for the 2017 Adams Benefit, honoring former SJC Chief Justice Margaret Marshall), as a springboard to discuss the BBA’s own efforts toward reducing recidivism. We discussed our longstanding opposition to mandatory minimums, and the possibility of bail reform, evidence-based risk assessment tools to help determine the security classifications of inmates behind bars, and their appropriate level of supervision upon release; as well as ways to reduce recidivism and promote successful re-entry of the 90-plus percent of those currently incarcerated who will ultimately return to society.
  • April 7: BBA Recommends Modernization and Reform of Wiretap Statute – Responding to concerns expressed by the SJC in decisions in both 2011 and 2014, and by the Attorney General in a 2015 statement, and to the simple fact that the wiretap statute, L. c. 272 §99 has existed in substantially the same form since 1968, even as technology has undergone revolutionary changes, the BBA’s Criminal Law Section, along with the Civil Rights and Civil Liberties Section drafted a statement of principles for the Legislature, making a number of recommendations for potential revisions to the wiretap statute. In a May post, we detailed how a redrafted bill (H1487) incorporated many of these proposals.  The bill (final number H4313) ended session tied up in the House Committee on Ways and Means.  We will continue to advocate for amendments to the statute to incorporate the recommendations in our principles.
  • December 8: Discussing the Death Penalty – Recently, we reaffirmed our position in opposition to the death penalty in a new medium – a podcast that shares the same Issue Spot name as this blog. This post discusses our 40-year history advocating on this issue, including our 2013 report opposing the federal death penalty.  Our position is, and always has been, based on principled analysis:
    • The inevitability of error in criminal cases makes it overwhelmingly likely that reliance on the death penalty will lead to the execution of innocent defendants;
    • In practice, the death penalty has a disproportionate impact on members of racial and ethnic minorities; and;
    • Death penalty prosecutions are more expensive, more subject to prolonged delays, and unlikely to produce a different result than cases where the prosecution seeks life without parole.

Stay tuned for part two next week when we look back at the role we played in promoting diversity in the legal profession, advocating for civil legal aid funding, and improving legislation and practice rules!

Happy New Year!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

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

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

Legal Fumble? Deflategate and the Law

As we enter week three of the NFL season with the Patriots a pristine 2-0 thanks to the promising work of Jimmy Garoppolo and Jacoby Brissett, it is important to remember what brought us here: the (in)famous Deflategate controversy.  We here at the BBA have decided that now is the optimal time for us to cover the legal issues at stake in the case.

For those of you who have been living under a football-shaped rock for the last 18 months, Deflategate is the controversy over Tom Brady and the New England Patriots using under-inflated footballs.  It all started on January 18, 2015, in the AFC Championship game between the Patriots and Indianapolis Colts.  About six minutes into the second quarter, Colts linebacker D’Qwell Jackson intercepted a pass from Tom Brady and carried the ball to the sideline.  He noticed that the ball felt softer than usual and inquired about the level of inflation.

This led to an investigation by the league, the results of which were released on May 6, 2015, concluding that the ball at issue, as well as all of the other Patriots’ balls in use at that game, did not meet league inflation specifications of 12.5 to 13.5 pounds per square inch (psi).  Investigators found it “more probable than not” that two Patriots equipment employees deliberately broke league rules by using a needle to deflate the balls and that Tom Brady was “at least generally aware” of their actions.  The report went on to state that the equipment personnel would not “personally and unilaterally engage in such conduct in the absence of Brady’s awareness and consent.”

On May 11, 2015, the NFL announced that it would suspend Tom Brady four games and penalize the Patriots organization by eliminating a future first- and fourth-round draft pick and issuing a $1 million fine for “violations of the NFL Policy on Integrity of the Game and Enforcement of Competitive Rules.”  A few days later, Brady and the NFL Players Association (NFLPA) filed a joint appeal of his suspension and shortly thereafter NFL Commissioner Roger Goodell announced that he would hear the appeal himself.

In late July, Goodell upheld the four-game suspension, prompting successful appeals, first by Brady and the NFLPA to the U.S. District Court, and then by the NFL to the Second Circuit Court of Appeals.  To make sense of the situation, we brought in the experts to a program at the BBA earlier this week, discussing the arbitral law behind these decisions.  Led by moderator Lou Mandarini, Segal Roitman, LLP, presenters Joseph E. Santucci Jr., Schwartz Hannum PC, arbitrator Elizabeth Neumeier, and Jasper Groner, Segal Roitman, LLP, had a spirited discussion on the law in this area and its application to what has become one of the most (in)famous cases in New England.

The one clear takeaway from our distinguished panel was that the law in this area is unique and courts are reluctant to intervene or overturn arbitrators’ decisions.  Modern labor-arbitration law was founded in the 1960s with the so-called Steelworkers Trilogy, a series of Supreme Court cases establishing that disputes between unions and employers should, if at all possible, be handled through arbitration, and that arbitrators’ decisions should be subject to great deference.  The cases lay out precedent that Courts will not overturn arbitrators’ decisions even if they disagree with the decision or contract interpretation.  This deference also extends to professional sports leagues, demonstrated most notably in 2001 in Major League Baseball Players Association v. Garvey in which the Court stated that “judicial review of a labor-arbitration decision … is very limited.”

And this deference is for good reason in organized labor, where a typical case may pit an hourly wage earner against a large corporation.  With such a great power imbalance, it makes sense for unions to push for deference to arbitrators, since appeals can present prohibitive costs for their members.  As one presenter put it, arbitration is a substitute for courts everywhere, except in labor, where it is a substitute for a strike.  Obviously, most of the parties in arbitrated labor cases do not have anywhere near the spending power of the NFLPA or Tom Brady.

Yet, despite all this supposed deference, the District Court ruled for Brady and the NFLPA, nullifying the four-game suspension.  Judge Richard M. Berman found that Brady did not receive sufficient notice of the severity of the discipline handed down in this case.  While the holding warmed the hearts of Pats fans, our panelists were in agreement that it did not comport with established case law, a trend they say is sometimes seen in District Courts, where judges may not be as well versed in how to handle appeals, especially from arbitrations.  This is not a knock on the District Courts, as our presenters went on to explain: District Court appeals from labor arbitrations are fairly rare, and increasingly so, as private-sector unions have shrunk in proportion to the overall workforce.  The practice in this area is increasingly esoteric and thus it is reasonable to expect judges and clerks to not be up to speed on the case law.

In late April 2016, a three-judge panel of the Second Circuit Court of Appeals ruled 2-1 to reinstate Brady’s four-game suspension, getting it right in the eyes of our presenters.  The Court found that Commissioner Goodell acted within his powers under the collective bargaining agreement and that he did not deprive Brady of fundamental fairness.  The Court defaulted to the proper deferential standards stating,

The basic principle driving both our analysis and our conclusion is well established: a federal court’s review of labor arbitration awards is narrowly circumscribed and highly deferential — indeed, among the most deferential in the law. Our role is not to determine whether Brady participated in a scheme to deflate footballs or whether the suspension imposed by the commissioner should have been for three games or five games or none at all.  Nor is it our role to second-guess the arbitrator’s procedural rulings.

Our obligation is limited to determining whether the arbitration proceedings and award met the minimum legal standards established by the Labor Management Relations Act.

A subsequent petition for a rehearing in the Second Circuit was denied, and on July 15, Tom Brady announced on Facebook that he had decided to accept the suspension.

So, did it all work out?  While our experts thought so, their discussion led into some Monday morning quarterbacking, pointing out a couple of weak spots in the case.  Though Brady and the NFLPA hired a veritable who’s-who of top lawyers at an estimated cost of around $5 million, commenters noted that they were short on experience dealing specifically with employment arbitration issues.  Furthermore, the NFL’s collective bargaining agreement is extremely detailed, and contains a number of articles explicitly calling for arbitrators, and at times, neutral arbitrators, to handle certain situations, such as injury grievances.  However, the article at issue here (Article 46, Commissioner Discipline) does not actually mention arbitrators or arbitration at all.  Instead, it lays out a process for handling certain disputes and “action taken against a player by the Commissioner for conduct detrimental to the integrity of, or public confidence in, the game of professional football,” such as occurred here.  The article gives the Commissioner power to appoint one or more hearing officers of his choosing.

So, was this arbitration?  Should it have been subjected to such an extreme level of deference by the courts?  The NFLPA lawyers did not even make an argument along these lines.

They also never argued about the severity of the four-game suspension, which is a common issue in sports suspension arbitrations.  Given the brevity of both the NFL regular season (only 16 games) and the average NFL player’s career (roughly 3-4 years), suspensions can have a major impact on players’ earning power.  A suspension of the length handed down here could be argued to being akin to barring a typical employee from working at their job for two-to-three prime earning years.  While it may not be the most sympathetic argument in Brady’s case, given his wealth and uncommon longevity, this sort of argument has been used effectively in similar cases in the past.

Going forward, it will be interesting to see whether this issue will become a sticking point in the NFL’s next round of collective bargaining in 2021.  Will players be willing to take a stand to decrease the Commissioner’s power in these cases and demand neutral arbitrators?  Will they be willing to take a hit in other aspects, especially economically, to have greater say in these sorts of procedures?  The debate is something to look forward to in a few years, but for now, we’ll focus on October 9, when Tom Brady is scheduled to make his return against the Browns.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Increasing Diversity in Legal Practice at the US Supreme Court

We are very pleased with today’s decision in Fisher v. University of Texas, upholding the school’s race-conscious admissions policy with a finding that it does not violate the Equal Protection Clause.  The BBA is thrilled that the Court reached the outcome we argued for in our amicus brief, that experimentation in admissions is necessary to balance the pursuit of diversity with constitutional requirements of equal treatment.  This ruling means that the University of Texas, as well as other schools across the country, may continue to experiment with admissions policies intended to create a more racially inclusive classroom, and society.

The BBA has for some time supported the use of race-conscious admissions policies for higher-education institutions, including in the 2003 case, Grutter v. Bollinger and the first iteration of the Fisher case in 2012.  The BBA’s amicus briefs in both cases, drafted by BBA Secretary Jon Albano, Morgan Lewis, (Fisher II with the help of Sarah Paige) argued that race-conscious admissions policies are positive and necessary, especially to achieve increased diversity in the legal profession.  To quote our Fisher I brief:

… Until the composition of the legal profession more closely resembles that of the public whose interests are at stake, the perception will remain that the legal system is entrusted to and accessible to the white majority above all others.  Not only does that perception undermine the legitimacy of the judicial system, it further discourages participation by people of color, creating a self-perpetuating cycle of exclusion.

Grutter v. Bollinger was a landmark case in which the Supreme Court upheld the University of Michigan law school’s affirmative-action admissions policy.  In its Fisher I decision, the Court vacated and remanded a Fifth Circuit Court of Appeals decision for failing to apply strict scrutiny in reviewing the University of Texas’s race-conscious admissions policy.  The ruling effectively upheld race-conscious admissions policies, but also complicated the overall picture by cautioning that race-conscious admissions policies must establish a quantifiable interest in the educational benefits of a diverse student body, and that higher-education institutions must be able to show that “workable, race-neutral alternatives” will not suffice, and demonstrate that the consideration of race is narrowly tailored.  The BBA provided some clarity on the college admissions process going forward with a program in late 2013, but the issue remained open to discussion and interpretation.

In July 2014, a three-judge panel on the Fifth Circuit again upheld the University of Texas admissions plan, and the case returned to the Supreme Court when the Court granted a petition for writ of certoriari in late June 2015.  In early November 2015, the BBA filed its amicus brief with the support of seven diverse Massachusetts bar organizations:

  • Asian American Lawyers Association of Massachusetts,
  • Massachusetts Association of Hispanic Attorneys,
  • Massachusetts Black Lawyers Association,
  • Massachusetts Black Women Attorneys,
  • Massachusetts LGBTQ Bar Association,
  • South Asian Bar Association of Greater Boston, and the
  • Women’s Bar Association.

Our brief in this case is similar to the one we filed in Fisher I, arguing that state efforts to promote diversity in education serve a compelling governmental interest that is directly relevant to the goals of the legal profession, and that diversity of lawyers enhances the legal profession and society as a whole.  It explains that this diversity in the legal profession can be achieved only by the creation of a diverse pipeline of students from undergraduate institutions.

We hope that this case will help to further diversity in the legal profession, one of our core values and a major consideration in much of the work we do.  We look forward to achieving a greater understanding of the implications of this holding for higher education and the legal profession in the coming months.

– 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

 

Massachusetts leads, SCOTUS follows? Retroactivity in Juvenile Life Sentencing

Earlier this week, the US Supreme Court heard oral argument in the case of Montgomery v. Louisiana.  The transcript is available here.  The case addresses, along with jurisdictional concerns, whether the Supreme Court’s 2012 ruling in Miller v. Alabama has retroactive effect.  In criminal cases, the Supreme Court’s rulings generally do not have retroactive effect unless the new rule is considered “substantive.”  Miller declared mandatory life sentences without the possibility of parole for homicides committed by minors to be in violation of the 8th Amendment prohibition on cruel and unusual punishment, and required judges in such cases to consider the defendant’s youth, background, and capacity for rehabilitation, as well as the nature of the crime, before handing down a sentence without parole.  Miller followed Graham v. Florida (2010) which prohibited life sentences without the possibility of parole for non-homicide offenses.

Montgomery brings to SCOTUS the case of Henry Montgomery, a 69 year old who has been in prison since he was 17 years old for murdering a sheriff’s deputy in Baton Rouge.  He argued in state court that the Miller holding must be applied retroactively, thereby making him eligible for parole.  The case rose to the Louisiana Supreme Court, which held against Montgomery.  The US Supreme Court granted certiorari in late March of this year.  Louisiana argued in part that the Miller holding was not substantive enough to have retroactive effect, because life without parole sentences are still available for juveniles in homicide cases as long as they are not mandatory.

Should the Court find for Montgomery, about 1,500 prisoners convicted of homicide as juveniles and given mandatory life sentences without the possibility of parole would suddenly gain parole eligibility.  While the Supreme Court is considering the case, analysts suggest that they may still skirt the question of Miller’s retroactive effect, waiting until a prisoner files suit under a federal habeas corpus statute rather than in state court.

Massachusetts dealt with this issue over the last couple of years.  In response to Miller, the SJC held in late December 2014 in Diatchenko v. District Attorney that all life without parole sentences for juveniles were unconstitutional in Massachusetts, even if imposed by a judge at her discretion. This decision came only weeks after the BBA approved principles opposing these sentences.  In Diatchenko, the justices considered – as had the Miller court — current scientific research showing that adolescent brains are not yet fully developed structurally or functionally before the age of 18.  But they reasoned that the proper conclusion is that a judge cannot possibly ascertain with any reasonable degree of certainty that a juvenile is irretrievably depraved and deserving of the life without parole punishment.

The plaintiff, Gregory Diatchenko, who had been serving a life without parole sentence for a murder he committed in 1981 at age 17, became immediately eligible for parole.  In addition, the Diatchenko holding also applied retroactively to other juvenile life without parole convicts who had served at least 15 years, making roughly 65 inmates suddenly parole eligible for the first time.  “Eligibility for parole” merely entitles an inmate to a hearing.  At that point it is up to the parole board to consider whether the prisoner has changed, has taken full responsibility for his or her actions, and poses no threat to public safety.  However, the ruling did eventually result in the release of at least a few individuals in Massachusetts who had been serving these sentences.

Diatchenko also invited the Legislature to revise its juvenile-murder sentencing scheme to come into line with the ruling which stated that juvenile offenders must receive a “meaningful opportunity” for parole, without defining the appropriate length of the mandatory portion of a sentence before eligibility.  As we described, after a contentious hearing in May 2014, lawmakers agreed on a compromise bill, H4307, that would permit parole eligibility after 25-30 years for juveniles convicted of premeditated murder and after 30 years for juveniles found guilty of murder with extreme atrocity or cruelty.  Juveniles convicted of felony murder would be parole eligible after 20 to 30 years.  The bill was enacted in July 2014.

We are proud that the Massachusetts Judiciary and Legislature successfully addressed the retroactivity issue in the wake of Miller, and we hope that the U.S. Supreme Court will use Montgomery as an opportunity to set the record straight for the individuals in other states who are serving sentences under a sentencing scheme now recognized as unconstitutionally cruel and unusual punishment.  A decision is expected by late spring, and we will keep you posted on the latest developments with this case.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Equality: Making Great Strides, but a Long Way to Go

Late last week, we were thrilled to see the U.S. Supreme Court following in Massachusetts’ footsteps, holding in Obergefell v. Hodges that the Fourteenth Amendment requires states to license marriages between two people of the same sex and to recognize same sex marriages lawfully performed in other states.  The BBA has long been a supporter of marriage equality.  We submitted an amicus brief along with the Massachusetts LGBTQ Bar Association in Goodridge v. Department of Public Health, the 2002 case that made Massachusetts the first state to legalize same-sex marriage.  Former SJC Chief Justice Margaret Marshall’s majority opinion contains many eloquent and powerful arguments that have been repeated around the country and most recently by the Supreme Court.  The BBA has since filed or signed onto a number of additional amicus briefs in support of marriage equality in the following cases:

However, even as we mark last week’s great step forward, we are reminded that society has a long way to go before we achieve total equality.  Even the Obergefell decision, which is certainly a milestone for marriage equality, doesn’t go so far as to clarify what level of scrutiny courts should apply to sexual orientation classifications.  The Supreme Court has historically applied varying levels of scrutiny to Constitutional law questions, including due process and equal protection cases.

  • The most basic level, rational basis, requires only that the government’s actions be rationally related to a legitimate governmental interest.
  • The next level, intermediate scrutiny, requires that the government’s actions be related to an important government interest, and is most well-known for its use in sex-based classifications.
  • Finally, strict scrutiny, which is applied when a fundamental right is at issue or when the government action applies to a suspect classification, requires a compelling governmental interest, that the law or policy be narrowly tailored to achieve that goal, and that it be the least restrictive means. Strict scrutiny is used for classifications such as race or national origin.

In our 2011 and 2013 amicus briefs cited above, we argued that strict scrutiny should apply to classifications based on sexual orientation.  While the Obergefell decision hints that strict scrutiny should apply, it does not actually go so far as to apply the test.

Massachusetts has long been a leader in legislating equality.  The Legislature enacted a broad anti-discrimination law in 1989, prohibiting sexual orientation discrimination in the areas of employment, housing, public accommodations, credit and services (this site has a very useful and concise breakdown of the law and its application).  Remarkably, more than 25 years later, residents in many other states still lack these protections.

Yet, even here in Massachusetts, some would argue there is plenty more we can do to assure fairness and equality.  As recently reported, Massachusetts still doesn’t treat same-sex couples the same as married couples.  For example, same-sex couples who are unmarried may have a harder time than their opposite-sex counterparts in getting legal recognition of joint parenthood.  They may also face legal discrimination from private insurance companies or be unable to enjoy the same family leave privileges as opposite-sex couples.  In addition, while the Massachusetts Legislature extended its anti-discrimination laws in 2012 by passing An Act Relative to Gender Identity, which prohibits discrimination based on gender identity, public accommodations were stripped from the bill’s coverage before it was enacted; we are now seeing a renewed push this session to expand the law’s protections.

In sum, we are proud of Massachusetts, for leading the way on marriage and we are excited that the U.S. Supreme Court took a major step forward in recognizing marriage equality as a right required under the Fourteenth Amendment.  However, we recognize that there is still a long way to go.  In the judiciary, we hope to see sexual orientation benefit from the heightened scrutiny standard it deserves.  In the Legislature, both nationally and in our own state, we look forward to laws that will help assure equality for all, regardless of their sexual orientation or gender identity.  Obergefell represents a great moment in history, but we hope it is only the beginning of a new era of equality.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Summer SCOTUS Update

The latest session of the Supreme Court may have ended several weeks ago, but there have still been some recent developments on cases of BBA interest, namely marriage equality and the use of affirmative-action measures in higher education.

The BBA has long been a supporter of marriage equality both in the Commonwealth and federally, filing amicus briefs in its defense in 2002, 2005, 2011, and most recently in 2013 in the Supreme Court cases U.S. v. Windsor and Hollingsworth v. Perry.  Windsor challenged Section 3 of the federal Defense of Marriage Act (DOMA), which defined marriage as a legal union between a man and a woman, while Perry challenged California’s Proposition 8, a gay-marriage ban approved by a 2008 ballot initiative.  Our brief for these two cases argued that sexual-orientation classifications warrant heightened scrutiny under the Equal Protection Clause.  We were pleased that the Supreme Court’s ruling affirmed that all married couples deserve equal treatment from the federal government.

The Supreme Court’s opinion may be sought again, this time in a case from the Fourth Circuit striking down Virginia’s ban on same-sex marriage as well as a similar case from Utah.  The Virginia case concerns both a state’s power to forbid same-sex marriage within its boundaries and its power to decide whether to recognize same-sex marriages legally performed in other states.  These are just two cases in what has been, by one count, a string of 35 consecutive state and federal rulings on the side of same-sex marriage in the 14 months following the Supreme Court ruling.

It appears likely that the local Virginia county clerk will file a petition for SCOTUS review of the case by the end of October.  The next Supreme Court term begins on October 6, and while the Court has complete discretion on whether to take up this or any other case, it seems inevitable that the justices will weigh in again, probably sooner rather than later, on this fast-moving issue.

Another case of BBA interest, Fisher v. University of Texas, continues to evolve.  The BBA has for some time supported the use of race-conscious admissions policies for higher-education institutions, a position that inspired amicus briefs in the 2003 case, Grutter v. Bollinger, and 2012’s Fisher v. University of Texas.  In each case, the BBA’s amicus briefs argued that race-conscious admission policies are constitutional as well as positive and necessary, especially to achieve increased diversity in the legal profession.  To quote our Fisher brief:

until the composition of the legal profession more closely resembles that of the public whose interests are at stake, the perception will remain that the legal system is entrusted to and accessible to the white majority above all others.  Not only does that perception undermine the legitimacy of the judicial system, it further discourages participation by people of color, creating a self-perpetuating cycle of exclusion.

Grutter v. Bollinger was a landmark case in which the Supreme Court upheld the University of Michigan law school’s affirmative-action admissions policy.  This session, in Fisher, the Court vacated and remanded a Fifth Circuit Court of Appeals decision for failing to apply strict scrutiny in reviewing the University of Texas’s race-conscious admissions policy.  The ruling effectively upheld race-conscious admissions policies, but also complicated the overall picture by cautioning that race-conscious admissions policies must establish a quantifiable interest in the educational benefits of a diverse student body, and that higher-education institutions must be able to show that “workable, race-neutral alternatives” will not suffice, and demonstrate that the consideration of race is narrowly tailored.  The BBA provided some clarity on the college admissions process going forward with a program in mid-September, but the issue remains open to discussion and interpretation.

In July, a three-judge panel on the Fifth Circuit again upheld the University of Texas admissions plan.  The same procedural course of events transpired in the initial case, which was taken up by the Supreme Court after a three-judge panel upheld the University’s policy and the Fifth Circuit denied an en banc review.  Given this latest ruling, it looks like the plaintiffs may again seek SCOTUS review.  Perhaps anticipating this move, the University of Texas President penned an op-ed posted online by the National Law Journal earlier this week, arguing that higher-education institutions still need affirmative-action policies.  We agree.

The BBA is always interested in drafting or signing on to amicus briefs that fall within our mission – to advance the highest standards of excellence for the legal profession, facilitate access to justice, and serve the community at large.  Both improved diversity in the legal profession through equal access to higher education and marriage equality fall squarely within these goals.  We will continue to keep an eye on both of these issues going forward.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association