S.J.C. Takes a Big Step Toward Closure in the Years-Long Annie Dookhan Drama

In the five years since scandal enveloped the state’s Hinton Drug Lab—after the misconduct of Annie Dookhan was discovered—we’ve covered the fall-out many, many times.  Last week, the Supreme Judicial Court (SJC) rendered its highly-anticipated “Bridgeman IIdecision addressing the crisis.  But as with any story on the Dookhan cases, a little history is in order first…

Those links above collectively tell the story of a rogue chemist who mishandled drug samples, failed to conduct tests on samples she nevertheless labeled as controlled substances, contaminated unknown suspected drug samples with known drugs before running tests to identify those unknown drugs, and falsified evidence logs and reports, among other misdeeds.  Dookhan was sentenced to three-to-five years in prison in 2013, after pleading guilty to obstruction of justice, tampering with evidence, and other charges, and she was released early last year.  Case closed.

Except that even now, upwards of 20,000 defendants are still living with the fallout from criminal records stemming from adverse dispositions in cases in which Dookhan was a chemist of record.  These are people who were convicted or pled on the basis of what we now know to be tainted evidence, and they are living with the consequences: difficulty obtaining employment, public housing, benefits, drivers’ licenses, and so on.  Many faced harsher punishment later because a Dookhan conviction was a predicate offense.  For some, their custody of children, or even their very presence in the country is at stake.

But the courts have struggled to find a solution: How to offer justice across so many cases, short of simply vacating all remaining charges in one go—the so-called global remedy that the SJC has resisted?

David Meier of Todd & Weld was named by then-Governor Patrick to lead a task force that would seek to identify all the “Dookhan defendants.”  He ultimately produced a list of 40,323 individuals … but that was incomplete and based on only partial information.

Special magistrates—including current BBA Council member Judge Margaret Hinkle (retired)—were appointed by the Superior Court to handle hundreds of cases but were able to process only a fraction of the full universe, with a focus on those who were then still in custody.

Last year, after a comprehensive list of affected defendants was finally compiled and agreed upon by all stakeholders, notice was sent to all of them, at their last known addresses, by the District Attorneys in each case, advising of their rights to appeal based on Dookhan’s influence on their cases.  But the response has been limited.

Meanwhile, Bridgeman v. District Attorney for Suffolk County was making its way to the SJC, not once but twice.  In May 2015, in the first Bridgeman case (“Bridgeman I”), the SJC ruled that Dookhan defendants cannot be charged with more serious crimes if given a new trial and, if convicted, cannot be given a harsher sentence than was originally imposed.

By last October, the case was back before the SJC, with the Court seeking amicus briefs on:

Whether the persons who were convicted of drug-related charges and in whose cases … Dookhan signed the certificate of drug analysis as the analyst … are entitled to a comprehensive remedy, including, whether all cases involving misconduct by Dookhan should be dismissed or subjected to a court-imposed deadline.

The BBA filed a brief calling for a global remedy that places the burden on the Commonwealth to re-prosecute within a set time period (to be determined by the Court) any cases 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.

Our interest was 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 would a global remedy secure justice for the defendants, but it would also start to relieve the significant burden on a justice system that was otherwise facing the prospect of addressing more than 20,000 unresolved cases one-by-one.  The burden should rest with the Commonwealth rather than these individuals, we argued, because the widespread and systemic nature of Dookhan’s misconduct, as a state employee, implicates public confidence in the government and justice system.

Our brief stated that while the courts have worked admirably and diligently to handle these cases, now that the full and pervasive scope of Dookhan’s misconduct is more fully understood, it is clearly an exceptional circumstance meriting the SJC’s use of its extraordinary powers to impose a global remedy.  We conclude that “the net result of the current process will be that a certain and significant number of adverse dispositions that were obtained by ‘egregious’ [the SJC’s word] misconduct attributable to the Commonwealth will remain intact.  Thus, by default, many Dookhan defendants will continue to suffer the consequences of ‘egregious’ government misconduct and, absent a global remedy, such misconduct will not be remedied or abated in any systemic or comprehensive way.”  This outcome is unacceptable and inconsistent with due process and undermines the integrity of the criminal justice system.

In a majority opinion written by Chief Justice Ralph Gants, the Court once again declined last week to adopt a sweeping global remedy, ordering instead a three-step protocol, to be implemented by Justice Margot Botsford as single justice:

In the first phase, the district attorneys shall exercise their prosecutorial discretion and reduce the number of relevant Dookhan defendants by moving to vacate and dismiss with prejudice all drug cases the district attorneys would not or could not reprosecute if a new trial were ordered.

In the second phase, new, adequate notice shall be approved by the single justice and provided to all relevant Dookhan defendants whose cases have not been dismissed in phase one.

In the third phase, CPCS shall assign counsel to all indigent relevant Dookhan defendants who wish to explore the possibility of moving to vacate their plea or for a new trial.

If the number seeking counsel is so large that counsel cannot be assigned despite CPCS’s best efforts, the single justice will fashion an appropriate remedy under our general superintendence authority for the constitutional violation, which may include dismissing without prejudice the relevant drug convictions in cases where an indigent defendant is deprived of the right to counsel.

So … not entirely what we had advocated for but nonetheless a significant step toward that comprehensive resolution—while holding out the potential for lifting the remaining cloud over the Dookhan defendants and allowing them to move on with their lives.  The Court agreed with our argument that continuing to place the burden on these defendants to come forward one at a time—to say nothing of the burden on the courts—is no longer a viable option, in spite of the DA’s arguments that the notice they sent served its purpose and no extraordinary action need be taken, and that a different course of action, five years after the scandal first came to light, is necessary to protect the fairness and integrity of our criminal justice system.

The DA’s were given 90 days to inform the single justice in which cases they “could produce evidence at a retrial, independent of Dookhan’s signed drug certificate or testimony, sufficient to permit a rational jury to find beyond a reasonable doubt that the substance at issue was the controlled substance alleged in the complaint or indictment.”

Justice Geraldine Hines, for her part, filed a dissenting opinion, in which she stated that

the need to adopt a swift and sure remedy for the harm caused by her deceit presents itself with palpable urgency. The time has come to close the book on this scandal, once and for all, by adopting a global remedy. While I agree, as the court notes, that a global remedy is “strong medicine” … the continuing violation of the rights of the defendants affected by Dookhan’s misconduct and the damage to the integrity of our criminal justice system demand no less.

The three-step protocol, she said,

is simply unworkable as a timely and effective mechanism for addressing the due process claims of the thousands of defendants now deemed to have been convicted on Dookhan’s tainted evidence. In short, the court’s solution is too little and too late. The only fitting end to this blight on the integrity of our criminal justice system is vacatur and dismissal with prejudice of the convictions of all relevant Dookhan defendants.

It should also be noted that Justice Barbara Lenk, joined by Justice Kimberly Budd, trod a middle path in a concurrence with the majority, expressing her impatience:

I write separately to underscore that, in those five years, and despite the time and efforts of so many, we have managed to address fewer than 2,000 of the estimated 20,000 or more cases involving Annie Dookhan-tainted evidence. We cannot go on this way. …

I share the dissenting Justice’s frustration with the unacceptably glacial systemic response to date and join in her view that extraordinary measures are now in order. … [H]owever, I regard the protocol announced today … as promising to be such a measure, but only if implemented in a manner that countenances no further delays. … [T]here must be strict compliance with its stringent timelines and requirements.  Only this will forestall the need for a “Bridgeman III” and different measures.

And indeed, the single justice has already held a hearing earlier this week, to begin to implement the new protocol.

As you can see, the Dookhan scandal is one that has taken many turns in the past five years.  When will the last chapter finally be written for all the defendants whose lives she upended?  We still can’t say … but after last week’s ruling, and this week’s hearing, that day at least feels closer.

— Michael Avitzur
Government Relations Director
Boston Bar Association

AG Healey Spells out Priorities at Council

She was a member of the BBA Council from 2012 to 2015 and also sat on the Executive Committee.

She co-chaired our Civil Rights & Civil Liberties Section.

Two years ago, she was the keynote speaker at the BBA’s Law Day Dinner, where she spoke warmly of having “grown up” professionally through her BBA involvement, attributing many of her core values to what she learned as a member.

And this past week, Maura Healey returned to the Council as the state’s Attorney General, having been elected to that office, after nearly seven years on AGO staff, in 2014.

Since she took over what she calls The People’s Law Firm, her office has successfully rolled out several major policy initiatives, including the Earned Sick Time law and the Domestic Workers’ Bill of Rights.  She also helped shape the Transgender Rights, Pay Equity, and Pregnant Workers Fairness bills.  And on that last issue, she has led by example—providing six weeks of paid family leave for all employees, making the AG’s Office the first state agency to offer paid parental leave.

The AG spoke to Council members at length on Tuesday about her priorities and the work of the Office, but she started by stating that, given the great uncertainties about what it is to come politically, there has never been a more important time in this country for the role of lawyers, or for the rule of law.

In that assessment, she sees a role for the private bar especially.  AG Healey cited a hotline she established in November, for people to use in reporting acts of hatred and bias, and she thanked BBA President Carol Starkey for offering to help in lining up volunteers to handle any cases that emerge.

In addition, we are also partnering with the Attorney General, as well as legal services organizations, to identify other emerging legal needs in the community, particularly as they pertain to the increase in concerns surrounding immigration.  The AG’s office continues to monitor developments in federal immigration policy, to determine what impact they may have on Massachusetts residents.

In the AG’s view, this is part of what it means to run The People’s Law Firm: standing with those who are marginalized or have limited means.  She sees her office as a problem-solver.  Sometimes those problems can best be addressed through litigation; other times, leveraging the expertise and the resources of her office can produce a resolution without going to court.

Another area where we are working from the same playbook as the AG is criminal-justice reform.  She told the Council that policy-makers need to “lean in”, seizing this moment to produce change that goes beyond what has been recommended by the Council of State Governments group that has been studying the issue the past year.

She specifically cited racial disparities and data collection as areas where greater effort is called for, and she expressed hope that the scope of the debate to come on Beacon Hill this year will extend beyond merely mandatory minimums—which the BBA has long opposed.  This would include keeping people out of prisons and jails where possible—and where not, properly treating those who are incarcerated and offering them meaningful preparation for re-entry to society.

AG Healey also highlighted some of her other priorities for 2017:

  • Her office has also been conducting workers’-rights clinics for employees who believe they’ve been treated unfairly. She’s especially concerned about immigrants and other vulnerable populations.  To spread awareness of this educational opportunity, her office has been giving notice about the clinics whenever a private right of action is issued in an employment case.
  • The state’s on-going opioid crisis demands attention, and AG Healey has advocated for greater funding and expansion of education and outreach to both parents and children. It has also created a need for more pro-bono representation in guardianship cases—for example, when a grandparent must step in to raise a child.
  • Economic opportunity and security will continue to be a focus of the AG’s Office. She’s particularly concerned about debt-collection cases, and the tremendous number of defaults occurring in District Court, which only causes more problems for debtors down the road, with obtaining housing, employment, and loans.
    • To address the problem, and quell predatory practices, her office has recently begun a pilot program at the Boston Municipal Court—a single session, once a week, where trained attorneys meet with debtors to review cases.
    • Notice is sent to defendants ahead of time, advising them of this opportunity, and already, in just a few months, the program is showing results, with a 50% increase in attendance at hearings (hence, no default) and more than 100 participants having avoided default.

AG Healey also took questions from members, touching on subjects that included:

  • Climate change—she plans to step up, probably alongside colleagues from other states, if she believes the EPA is backing off on its regulatory enforcement. This is an issue she hears about at town-hall meetings around the state, and one in which she feels a moral obligation to confront potential economic consequences.
  • Acting in concert with other AG’s—again, in response to any regulatory retrenchment in a variety of other areas. She sees these offices as the first line of defense against such roll-backs, as well as potential unconstitutional practices.  She described waking up every day and asking whether her office has standing to intervene in such instances.  Witnessing what she described as voter suppression in other states (though not here) has her wondering whether her office can help.

Along the way, the AG took pains to credit her staff, and she thanked the bar for providing their expertise on issues like the equal-pay law and regulations on earned sick time for employees.

We very much appreciated hearing from Attorney General Healey, and we look forward to next month’s Council meeting, which will feature an appearance by SJC Chief Justice Ralph Gants.  Stay tuned…

— Michael Avitzur
Government Relations Director
Boston Bar Association

Walk to the Hill 2017: Rallying for Civil Legal Aid

As you may know, our Legislative and Public Policy Manager, Jonny Schreiber, has moved on, so I’m stepping up to pen this week’s Issue Spot.  What better way to honor Jonny than to choose as this week’s subject Walk to the Hill, the annual lobby day for civil legal aid?  Of course, funding for civil legal aid is always one of the BBA’s annual priorities, but thanks to the work Jonny did in helping shape the report of our Statewide Task Force to Expand Civil Legal Aid in Massachusetts, we have an even stronger argument to make.

And what better place to make that case than at Walk to the Hill on January 26, from 11 to 1?  This event—sponsored by the Massachusetts Legal Assistance Corporation and the Equal Justice Coalition, regularly draws hundreds of attorneys to the State House’s Great Hall, and we are hoping for a record turnout this year!

There will be speeches from BBA President Carol Starkey, the president of the MBA, clients with stories of how they’re lives were changed with the help of a legal-aid attorney, and SJC Chief Justice Ralph Gants—who each year tries to outdo himself in coming up with examples to demonstrate how a relatively-small increase in the overall state budget can have such a meaningful impact on the neediest among us.

Of course, civil legal aid is an issue that affects every legislative district in Massachusetts: Every legislator has many constituents who not only qualify for legal aid (typically based on age or income) but rely on it at critical moments, such as when facing eviction or trying to secure their rightful benefits.  As a result, the level of support for civil legal aid in the Legislature is very high, and Walk to the Hill always brings out many elected representatives.

As for the rest of them, we are counting on you to help remind, and educate, them about the issue, and in particular the need for increased funding.  After the initial registration and the speaking program (and did I mention the boxed lunch?), attorneys fan out to various legislative offices in the State House to meet with their respective Senators and Representatives.

Are you unsure about sitting down (or, in some cases, standing up, because there are more attorneys than chairs!) to talk with your elected officials about legal aid?  We’ve got you covered: We’ll send you off from the Great Hall with guidance on talking points and a packet full of information, both for you and for your representatives.

But just to get you started thinking about it, here are the key findings of our Task Force’s 2014 report (full text here):

  • 64% of individuals who qualify for legal aid (for a family of four, that means an income of less than $30,000 annually) and make it through the wait (roughly 50% of callers give up after being on hold for hours) are nevertheless turned away, solely due to a lack of adequate funding.
    • That means of thousands are turned away every year, which is especially concerning in areas of basic need such as housing evictions and escaping domestic violence.
  • Court procedures are bogged down, and justice is frequently delayed or denied, due to the glut of pro se litigants.
  • For every dollar spent on legal aid in the areas of domestic violence, federal benefits, and housing, the state and its residents see returns of $2 to $5, mostly on back-end savings such as shelter, police, and medical costs.

On the strength of these findings, the BBA, the EJC, and our other partners in this effort were able to secure a 20% increase in state funding for MLAC over the past two years, from $15 million to $18 million.  It is a measure of how effective our advocacy has been, and how much legislators and the Governor care about this issue, that these gains have come at a time of great fiscal pressure, when most other line-items were seeing limited, if any, increases.

Still, the budget forecast for the coming year is looking no better, and we must keep up our work.  For Fiscal Year 2018, which starts on July 1, we are asking for a $5 million increase, which would bring the MLAC line-item appropriation up to $23 million.  As it happens, the Governor will be releasing his budget proposal (which is the first big step in the budget process) the day before, so we’ll have a better idea by then of where we stand as the debate shifts to the Legislature.  (By the way, if you’d like to learn more about Walk to the Hill, funding for MLAC, and the budget process generally, check out our recent Issue Spot podcast on these topics, featuring me and Jonny Schreiber.)

What’s that?  A lunch program and visits to legislative offices aren’t enough for you?  Then why don’t you also join us for our annual Walk to the Hill breakfast, sponsored by our Solo & Small Firm and New Lawyers Sections.  The breakfast (that’s two free meals in one day!) is held here at 16 Beacon from 8.30 to 10.30am, so you can eat, network, and get psyched up for a day of advocacy.

Now that you’re armed with all this info, we hope we’ll see you on January 26th for the biggest Walk to the Hill yet.  If you’re able to attend, don’t forget to fill out your exit report on the way out, so we can tally up all the legislative visits and better plan our strategies for the rest of the campaign!  If you can’t make it, watch for more updates in this space, and in other BBA alerts, about how you can weigh in with your Senator and Representative.

We look forward to keeping you up to date on all the latest developments in the FY18 budget campaign.

— Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Government Relations Year in Review: Part II

Hopefully you enjoyed part I of our Year in Review, discussing our efforts on amicus briefs and criminal justice reforms.  Part II will discuss our comments on proposed rules changes, efforts at increasing diversity and inclusion in the legal profession, civil legal aid funding advocacy, and legislative victory!  2016 was a great and productive year and we’re looking forward to doing even more in 2017!

BBA Rules Comments

One component of the BBA’s policy function that sometimes goes overlooked is the work of our Sections in reviewing and commenting on proposed amendments to rule changes.  This is a great benefit to our members as it empowers them to be involved in making positive changes that directly impact their practice areas.  This is especially true because the courts do a great job of listening to the concerns of practitioners and frequently make changes based on our comments.  Here are links to some of our coverage:

Diversity, Civil Legal Aid, Legislation and more!

Given space and time constraints (we’ve got to get going on all our 2017 work!!), I’m going to lump together everything else including our posts on the courts, diversity and inclusion, civil legal aid funding, and more.  Here are a few highlights:

  • December 15: ‘Tis the Season to Focus on Civil Legal Aid – Advocating for civil legal aid funding is one of the BBA’s main priorities every year. We work on the issue year round, but the campaign really starts moving in earnest with the kickoff event, Walk to the Hill, held this year on January 26.  The event brings together hundreds of lawyers who hear speeches from bar leaders including our President and the Chief Justice of the SJC and then encourages them to spread throughout the building to visit their elected officials and spread the word about the importance of legal aid funding.

As explained in this year’s fact sheet, the needs are still massive (around 1 million people qualify for civil legal aid by receiving incomes at or below 125% of the federal poverty level, meaning about $30,000 for a family of four), the turn-away rates are still too high (roughly 64%, due to under-funding), and civil legal aid remains a smart investment for the state (it returns $2 to $5 for every $1 invested).  In FY16, MLAC-funded programs closed over 23,000 cases, assisting 88,000 low-income individuals across the state.  And this is only part of the picture as they provided limited advice, information, and training to countless others.  More funding will enable them to take on more cases, represent more people, shrink the justice gap, and return more money to the state.  It will also ease a massive burden on the courts which are bogged down by pro se litigants as illustrated in this video from Housing Court.

We hope to see you on January 26 at the Walk and that you will stay engaged throughout the budget cycle, which stretches to the spring.  For more on that, check out our latest podcast!  We will keep you updated here with all the latest developments and may ask that you reach out to your elected officials at key times to again voice your support.  Last year we shared six posts  throughout the budget, updating you on all of our priorities, including legal aid, the Trial Court, and statewide expansion of the Housing Court.  Our final budget post from August 4 shows where everything wrapped up.  For anyone interested in the process, check out our older budget posts from April 14, April 21, May 5, May 19, and June 30 as well.

  • August 9: BBA Clarifies Zoning Law and Promotes Real Estate Development – More traditionally, the BBA is known for its work on legislation. We support a number of bills of interest to our practice-specific Sections as well as the organization as a whole.  On August 5, the Governor signed into law H3611, An Act relative to non-conforming structures.  The BBA has supported this bill in various forms since 1995, behind the leadership of its Real Estate Law Section, as a means of improving the clarity of Massachusetts zoning laws and thereby promoting economic and real estate development.  During the current legislative session we were pleased to receive help and support from Council member Michael Fee, who testified on the bill at a legislative hearing in May 2015.  We look forward to more legislative successes this session!

As you can see it’s been quite a year.  This doesn’t even touch on dozens of other posts on things we were or are involved with.  We hope you’ll keep reading through the new year for all the latest news from the BBA’s Government Relations team and give us a follow on twitter for even more late breaking news!

I want to end on a personal note to say that this will be my final Issue Spot post.  I have drafted hundreds over the last 3.5 years at the BBA and loved being able to be part of all the incredible work of the Association and its members.  I am excited to be moving to a new position, but will certainly miss the BBA and hope to stay involved.  Thank you for reading!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Fond Farewell

Dear Members,

I write with mixed emotions to let you know that I will be leaving the Boston Bar Association, effective January 6 after accepting a job as Senior Policy Analyst for Iron Mountain.  I am excited to be taking on new challenges there as part of Iron Mountain’s new in-house government affairs team, but also sad to be leaving my position of Legislation and Public Policy Manager after 3.5 years.

I want to thank all of the members, the staff and leadership of the BBA, and all of the groups and organizations with whom we work closely.  I have had amazing opportunities to work on so many fascinating, intellectually stimulating, and important issues and initiatives in my time here, such as our nationally recognized civil legal aid task force report, amicus briefs that made winning arguments before the US Supreme Court and Massachusetts Supreme Judicial Court, and countless comments to the courts and others on rules impacting day-to-day legal practice.

While all of that has been interesting and both personally and professionally rewarding, its value does not come anywhere close to all of the great relationships I have made.  I am amazed on a daily basis by our members who so willingly give freely of their time and legal expertise for the greater good.  The work ethic, talent, and generosity of everyone involved in BBA is truly inspiring and is definitely what I will miss most.

Over the coming months, I am sure the BBA will hire a great replacement who will take the Association’s government affairs function to new heights.  In the meantime, your go-to for all things GR is Director of Government Relations and Public Affairs, Michael Avitzur (mavitzur@bostonbar.org, 617-778-1942).

All the best,


Jonathan Schreiber
Boston Bar Association
Legislation and Public Policy Manager

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

‘Tis the Season to Focus on Civil Legal Aid

Aside from being the “most wonderful time of the year,” it’s also time to start ramping up our efforts surrounding civil legal aid!  As you may know, the BBA has long played an integral role in raising awareness and advocating for increases in the state budget appropriation to fund lawyers that provide essential representation to people who would not otherwise be able to afford their services.  These lawyers work on issues such as evictions or foreclosures, veterans or other federal benefits, or needing protection from domestic violence.  As part of that push, we have been talking and listening to some of the leaders of this movement and wanted to report on a couple of presentations we observed this week.

On Tuesday, we were excited to be joined at our Council meeting by Equal Justice Coalition (EJC) Chair, WilmerHale Partner Louis Tompros.  Louis is in his first year as Chair of the Coalition, which consists of the BBA, Massachusetts Bar Association (MBA), and Massachusetts Legal Assistance Corporation (MLAC).  The group advocates for MLAC funding, which in turn provides the bulk of the state’s civil legal aid through a dozen organizations including most notably in our area, Greater Boston Legal Services.

Louis Tompros Speaking to BBA Council

Tompros is a partner at WilmerHale, focusing on intellectual property litigation, but he has also represented numerous clients on a pro bono basis, including local nonprofit organizations, public housing tenants facing eviction, and employees in unemployment claims and appeals. For the past few years, Tompros has led the EJC’s efforts to engage the private bar, and particularly young attorneys, in the campaign to increase funding for civil legal aid.  In August of this year, he became Chair of the EJC, succeeding the esteemed John Carroll of Meehan, Boyle, Black, & Bodganow, who had served as Chair for three extremely fruitful years.

Shortly after Tompros assumed the Chair position, the EJC also appointed a new Director, Laura Booth, replacing Deb Silva, who has taken her considerable talents to the Massachusetts Appleseed Center for Law and Justice.  We were sad to see Deb go after she led the EJC to new heights, but are excited to welcome Laura who is already hard at work implementing some new ideas, including expanding the network of people involved in legal aid advocacy, such as in-house legal departments and social services providers.

We are excited for this year’s civil legal aid funding campaign, kicking off very soon.  Things are already gearing up, as Tompros explained to our Council.  MLAC will be seeking a $5 million increase in the state appropriation this year, from $18 to $23 million, building on the $3 million increase the Legislature and Governor have provided over the past two years, even in very difficult fiscal times.  EJC leaders have already begun meetings with key Legislators and Executive branch officials to make the case.

As explained in this year’s fact sheet, the needs are still massive (around 1 million people qualify for civil legal aid by receiving incomes at or below 125% of the federal poverty level, meaning about $30,000 for a family of four), the turn-away rates are still too high (roughly 64%, due to under-funding), and civil legal aid remains a smart investment for the state (it returns $2 to $5 for every $1 invested).  In FY16, MLAC-funded programs closed over 23,000 cases, assisting 88,000 low-income individuals across the state.  And this is only part of the picture as they gave more limited advice, information, and trainings to countless others.  More funding will enable them to take on more cases, represent more people, shrink the justice gap, and return more money to the state.  It will also ease a massive burden on the courts which are bogged down by pro se litigants as illustrated in this video from Housing Court.

We hope you will join our President, Louis Tompros, and hundreds of your colleagues at Walk to the Hill on January 26, the legal aid funding advocacy kick-off event at the State House.  There will be more information to come, but the event usually runs from roughly 12:00-1:00 in the Great Hall and features speeches from the Presidents of the BBA and MBA, SJC Chief Justice Ralph Gants, and a legal services client as well as special guests such as the Attorney General and other state leaders.  Following the speeches, grab a boxed lunch and then go visit your legislators to tell them how much legal aid means to you and make the case for increased funding.  Don’t know your elected representatives?  That’s perfectly fine – look them up here and make the introduction.  They’ll be glad to hear from you.

Andrew Cohn Speaking on Legal Aid

Relatedly, on Wednesday, we were happy to hear from retired WilmerHale partner Andrew Cohn, President and CEO of Longwood Medical Energy Collaborative, on his forthcoming article for the spring issue of the University of Florida Law School’s Journal of Law & Public Policy: Reducing the Civil “Justice Gap” by Enhancing the Delivery of Pro Bono Legal Assistance to Indigent Pro Se Litigants–A “Field” Assessment and Recommendations.  It will discuss the four major aspects to reducing the justice gap – increasing legal services funding, expanding the participation of private attorneys in pro bono work, reducing justice system barriers for pro se litigants, harnessing emerging technology to help facilitate those initiatives.

On his final point, Cohn talked at length about a new initiative we’ve discussed here beforeMassLegalAnswers Online – an internet-based virtual help-line.  The site was born out of an online program that started in Tennessee at OnlineTNJustice.org and is quickly spreading to other states.  The sites have been a huge hit both for clients and lawyers, spawning the catch-phrases “pro bono from home” and “pro bono in your pajamas.”  The American Bar Association (ABA) has recognized their effectiveness and is working to spread the site nationally.  Over forty states are currently committed to participating, a number of others are discussing the issue, and a handful have already launched their sites.  The ABA is helping states to adopt similar versions of the Tennessee website, though each state has some options to make tweaks in order to satisfy local ethics rules and to maximize its effectiveness for their populations.  The ABA is also providing malpractice insurance for all lawyers who answer questions through the database.

The site requires both lawyers and litigants to register, with clients submitting income information to prove they qualify, at less than 250% of the federal policy level.  Litigants who meet these qualifications are able to post questions, forming a client question queue which registered lawyers can peruse for cases of interest.  They can also search questions based on urgency and practice area, as well as subscribe to certain practice areas of interest to be alerted of new questions they may be interested in answering.  Once a lawyer selects a question, it is removed from the general pool and enters the lawyer’s private queue for their answer in 72 hours.  The questions will be monitored by a site coordinator who will also perform quality control checks of answers provided.

This site has essentially replaced the old “hotline” model and is a great improvement.  It removes long phone wait times and provides for clearer communication from both the client and lawyers as questions and answers have to be written out.  The site is also more convenient as the questions can be asked and answered at any time of day as can follow-ups.  The volume is not limited by the number of people manning phone lines and it is easier to pre-screen users.  Finally, the site offers a great opportunity for private bar involvement by lawyers who may want to perform pro bono work but who are not comfortable with taking on the uncertain time commitment inherent in traditional full representation scenarios.

At this point, masslao.org has been operational for about one month and has already provided answers to around fifty questions.  We encourage our readers to check it out and sign-up!

We’ll keep you updated with all the latest news on our efforts to increase civil legal aid, through both funding and expanding pro bono opportunities, and we hope to see you at Walk to the Hill on January 26.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Tweet Us!

Just a brief announcement – the BBA Government Relations Department is now on Twitter – follow both BBA Government Relations Director Mike Avitzur (@MikeAvitzurBBA) and me, BBA Legislation and Public Policy Manager Jonny Schreiber (@JonnyS_BBA), for live-time updates on issues of interest and all the important policy work of the 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

Bar Exam: Results, Reform, and BBA Resources

With applications for the bar exam due on December 9 and the recent kickoff of our Bar Exam Coaching program, we’ve got the bar exam on our minds.  This coincides with a presentation by Board of Bar Examiners (BBE) Executive Director Marilyn Wellington to the BBA Council in November, shortly after the release of passage rates for the July 2016 exam.

While bar passage rates have dropped nationally for the last few years, Wellington believes that they are starting to level out.  Much of the drop was due to a 30-40 percent decrease in applications to law school, resulting in many schools expanding their applicant pools to previously unseen levels in order to keep class sizes steady.  Over the last few years, most schools have corrected for the application drop by decreasing their class sizes, leading Wellington to predict a corresponding correction in passage rates.

Graduates of our local law schools represent roughly 60% of Massachusetts bar exam takers.  Wellington described increasing efforts at these and other schools to prepare students for the bar exam.  Some provide bar preparatory courses for credit and/or tuition payment plans for third-party bar preparation courses.

In July, the overall Massachusetts bar exam passage rate was just under 71%.  For first time takers it was just under 80%, which is pretty strong, though still seven to eight percentage points lower than the passage rates of a decade ago.  The state continues to be slightly ahead of the national mean on the multiple choice portion of the exam.  However, the number of bar takers continues to decrease, and in July was at its lowest number since 1983.  Wellington explained that this is likely due to the impact of the Uniform Bar Exam (UBE).

Massachusetts recently became the 26th state to adopt the UBE, though it will not be implemented in the state until July 2018.  The UBE tests only generally accepted legal principles and includes no local law.  It is still a two-day exam, consisting of a one-day multiple choice portion and a one-day essay portion.  The essay portion differs slightly from the current Massachusetts structure of 10 essay questions.  Instead, there are 6 essay questions for half the day and the Multistate Practice Test (MPT) for the other half, consisting of two 90-minute questions where test takers are given a case file containing all the needed information and asked to produce a type of legal document, such as a memo to a partner or a legislator.  The goal of the MPT is to:

test an examinee’s ability to use fundamental lawyering skills in a realistic situation and complete a task that a beginning lawyer should be able to accomplish. The MPT is not a test of substantive knowledge. Rather, it is designed to evaluate certain fundamental skills lawyers are expected to demonstrate regardless of the area of law in which the skills are applied.

In addition to the UBE, each state adopting it still retains control over any local components they want to add as well as what UBE score they require for passage.  These details are still being worked out in Massachusetts, but Wellington explained that they are working on developing a free online course on local law issues rather than an additional local test like some other states require.  However, the main benefit of the UBE is how much flexibility it gives takers who can apply their score in any UBE state, giving them the ability to be more mobile and potentially consider more employment options.

This is the type of background information we have equipped our bar exam coaches with, as well as specifics of the exam and what students can expect.  While students are expected to prepare for the academic portion of the exam on their own, coaches are there to provide support from the legal community – mental, emotional, and practical preparation – and guidance on:

  • Time management
  • Effective study techniques
  • Stress management
  • Dealing with anxiety

Our Coaching Program was started in large part due to the efforts of Marilyn Wellington, SJC Justice Margot Botsford, and Probate and Family Court Chief Justice Angela Ordoñez.  It is managed at the BBA by our Member Engagement Manager Kristen Scioli White and Public Service Programs Coordinator Cassandra Shavney.  I am proud to be helping out with the program, both as a coach and in running a program this week on exam essay writing – The Anatomy of a Bar Exam Essay: Advice for Improving Your Score.  I won’t bore you here with the details, but it was well attended and the students and coaches present had a lot of great questions about the essay exam process and substance, that I did my best to answer based on my experiences and observations both taking the bar and tutoring students.  If you want more information about the coaching program please reach out to Cassandra (cshavney@bostonbar.org).

Thanks to Marilyn Wellington and the great work of the Board of Bar Examiners, and best of luck to all the applicants taking the bar in February 2017 and beyond.  We look forward to reporting on your success this spring!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association