A Race to Avoid Being Dead Last: MA Needs Access to DNA Now

In less than two weeks, the Judiciary Committee will be holding a public hearing on the BBA’s bill on access to DNA evidence.  Sponsored by Senator Cynthia Creem and Representative John Fernandes, S 753 and H 2165 are on the June 8th agenda in Gardner Auditorium.  Massachusetts likes to think of itself as cutting edge and as an innovator of ideas and practices.  But the sad truth is that Massachusetts is one of only two states that does not guarantee access to DNA testing.  Oklahoma is the other.

The hearing is just the next step in a process that began in the fall of 2008 when then BBA President Kathy Weinman formed a task force to study reforms needed in Massachusetts to reduce the risk of convicting innocent people.   After fourteen months of work, the Task Force released its report titled Getting it Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts.  Guiding the work of this Task Force was the understanding that for every person wrongfully convicted, a criminal is free to commit more crimes.

This Report, an impressive achievement, did not just sit on a shelf gathering dust after it was published.  Instead it has been a critical part of the conversations we’ve had with members of the legislature and our partners in public safety.  We’ve discussed the process that led to the Report and described how it’s more than just undoing a wrongful conviction, but bringing justice to victims by convicting the guilty.  In all of our meetings there has been a shared understanding of the importance of having a statute like this in Massachusetts.  Often we’ve been met with enthusiasm to help get this done in Massachusetts, and also questions as to why this hasn’t been done before.

An access to DNA statute is important because it is not uncommon for a person to exhaust all possible appeals without being allowed access to DNA evidence from the case.  Sometimes the DNA evidence that was available at the time of the defendant’s trial was never tested or the methods of DNA testing used at the time of the trial were inexact, yielding unreliable results.

In practice, Massachusetts does much of what this bill proposes.  In many cases, access to DNA is granted to the defendant.  The Massachusetts State Police Crime Lab maintains all DNA evidence indefinitely and their facilities meet the highest standards of the field.  To his credit, Suffolk County District Attorney Dan Conley has been doing this for years.  The problem is that none of this is required by law.

Massachusetts has to pass this bill now.  The Oklahoma Bar Association passed a resolution last September establishing a commission to address the reliability and accuracy of convictions in their state.  This comes two years after we created our Task Force and nearly one year after Getting it Right was released.  Massachusetts could end up being the only state in the country without post-conviction access to DNA.  Wouldn’t that be embarrassing?

-Kathleen Joyce

Government Relations Director

BostonBar Association

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Hearing the Call for Alimony Reform

“Fair,” “Predictable,” “Balanced,” and “Much Anticipated” were the words used to describe An Act to Reform and Improve Alimony, at yesterday’s Judiciary Committee hearing in standing room only Gardner Auditorium. For the BBA, which has worked long and hard on this issue, it was a day that underscored the difference practicing attorneys can make when they volunteer their time to help draft fair and impartial legislation.

Senator Candaras and Representative Fernandes could not have been more gracious in their praise of those lawyers who endured fourteen months of marathon sessions in an effort to craft an impartial and fair law.  The BBA’s Family Law Section Co-Chair, Kelly Leighton, was the BBA’s liaison to the 14-person Legislative Alimony Task Force that worked for months behind closed doors on this legislation.

Through their public testimony, members of the Task Force described the process and what it would mean to divorcing parties inMassachusetts.  And we learned what happened in those private meetings yesterday.  Kelly Leighton testified that “the only thing we could agree on at the start of the process was that the law needed to be changed.”  It was emphasized that nobody got everything they sought and everyone gave up something they wanted.

The Task Force fittingly gave credit to the leadership of both Senator Candaras and Representative Fernandes.  They assembled representatives from groups often at odds on this issue and managed to get them to work towards a simple goal – making the Massachusettsalimony law better.  Also at the table at those meetings was Chief Justice Paula Carey of the Probate and Family Court.  Her guidance was critical to the process.  She was generous with her time and the Task Force was careful to not recommend anything that would adversely impact the Probate & Family Court.

The Task Force didn’t just spin their wheels…they did real work.  They incorporated divergent views and different perspectives to produce what has been heralded as a landmark statute that will modernize the laws guiding alimony payments and grant judges more discretion in their decisions.

Senator Candaras interpreted the participation of the individuals on the Task Force as an opportunity to serve.  She described it as a great experience and recognized the participants for generously donating hundreds of hour of professional time.  Now the Legislature must pass this bill.   With its broad support there’s buzz that it could happen this spring.

Yesterday’s hearing also focused on other issues near and dear to the BBA – including  the repeal of the adopted children statute (H 2262), the Massachusetts Uniform Trust Code (H 2261 and S 688) and technical corrections to the Massachusetts Probate Code (S 733).  I was impressed with the attention the members of the Judiciary Committee gave to each person who was called to testify and I was especially impressed with our own members who sat for hours listening to others testify on the various issues on yesterday’s agenda.  Our last bill to be heard, the technical corrections to the probate code, was called at 6:30 p.m. – five and a half hours after the hearing started.

Advocacy is a long process involving many talented volunteers, thoughtful legislators and lengthy hearings.  This is what defines life in a constitutional democracy.

-Kathleen Joyce

Government Relations Director

BostonBar Association

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Funding the Courts is Good Business

Identifying the things we stand for as an association is essential.  Without question, one thing that the BBA has always stood for is equal access to justice for all.  This is a fundamental part of the BBA’s mission and something that the BBA works on throughout year.

A key component of equal access to justice for all is adequate funding for the judiciary.  Alas, it’s no secret that the courts have been underfunded for years and the problem is getting worse.

Figuring out “why” something matters to us is just as important.  Our support for funding for the courts may seem obvious; we are a professional association of lawyers so it makes sense that we would want the courts to have the money necessary for delivering justice to all.  But our support goes beyond our allegiances as attorneys, and the impact of grossly inadequate funding for the judiciary reaches beyond the courtrooms and halls of law firms and into the boardrooms of major corporations.

Conversations focused on court funding and what the BBA can do to help often find their way onto our Council agendas.  And when court funding isn’t an agenda item it’s talked about in small groups before or after the meetings.  Even a cursory glance around our Council table will reveal that the BBA’s governing board is made up of several representatives from the business community.  Of our 34 member body, we have seven in-house counsel from global companies employing thousands of residents throughout the state.  Like their colleagues working in other sectors, in-house counsel believe adequate funding for the judiciary is critically important.

Here are some of the reasons why:

  • A well run Superior Court Business Litigation Session provides a valuable forum for resolving major commercial disputes;
  • Court delays and backlogs mean that employees have to take more time from work to appear in court, resulting in lost wages for the employee and lost productivity for the employer;
  • Delays in resolving civil cases drive up costs for companies and can postpone business transactions, mergers, and acquisitions.  This may diminish the appeal of the business environment in Massachusetts.

Putting a dollar figure on these delays is difficult.  One thing we do know: an inadequately funded court system is bad for the Massachusetts economy.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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A Tale of Two Hearings

In a study in contrasts, the Judiciary Committee and the Revenue Committee held public hearings this week on issues of importance to the BBA.  The Judiciary Committee held a record breaking 20-minute hearing earlier this week on court reform, a BBA priority for at least the past 20 years.  Judiciary hearings are known to be lengthy and frequently last late into the night — with bills taking many months to work their way out of the committee.  After this week’s relatively brief hearing, the chair promised to swiftly move the bill along.  In fact, it is expected to be taken up by the full House next week.

The court reform bill on the Judiciary Committee’s agenda would replace the Chief Justice for Administration and Management with a professional administrator who would handle non-judicial functions.  There would also be a new “chief justice of the Trial Court,” to oversee strictly judicial matters.  Described by many as an historic and radical reshaping of the court department, the bill calls for other reforms that would impose guidelines on letters of recommendation for job candidates throughout state government and would require applicants for certain positions to take a screening exam.

The Revenue Committee’s public hearing held today was an entirely different story.  On the agenda was a proposal to raise revenue in an effort to reduce budget cuts.  This bill was described by supporters as making the tax system more equitable.  They testified that lower income people would see their tax rates dip and higher income people would see their tax rates increase.

Also on the Revenue Committee’s agenda was H 2559, An Act Relative to Continuing the Tax Base Rule for Property Acquired from Decedents, or the so-called income tax “step-up” bill filed by Representative Alice Peisch on behalf of the BBA.  The step-up bill, a detailed but very important piece of legislation, addresses a substantial yet hidden Massachusetts tax for successors to decedents’ property resulting from the change in the federal basis rules for 2010.

Unlike the Judiciary’s hearing which was held in a typical hearing room with plenty of seats for those in attendance, the Revenue hearing was standing room only.  The auditorium was filled with concerned citizens from across the state.

A great big hat tip to the BBA members who stood in line for thirty minutes just to get through the doors of the state house only to find the auditorium jam packed!  Citizens who support raising taxes for the wealthy made their presence known by loudly rustling pieces of yellow paper in unison.  Even with our sponsor by our side, we waited for 3 hours before being asked to wait some more.  So what happens next now that the bill has been publicly heard and is officially in play?  We’ll meet with Chairman Jay Kaufman and the Revenue Committee staff and go over the details of the BBA’s step-up bill.  This will provide us with the benefit of an open dialogue, and we won’t have to restrict our testimony to 3 minutes.

-Kathleen Joyce

Government Relations Director

BostonBar Association

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Diverting Money From an Already Underfunded Program

Within two days of the House of Representatives budget being released, 758 amendments were filed.  Amendments add money to favored programs, make policy changes or even earmark or divert funds from one thing to another.  Earmarks sometimes have absolutely no relevance to a line item, and often reflect unique district priorities.  One amendment in particular caught the BBA’s attention.

Amendment #243 would have diverted $100,000 of the Massachusetts Legal Assistance Corporation’s (MLAC) appropriation for a study on grandparents raising grandchildren.  While that issue is worthy, the explicit designation of funds is the wrong way to go about it.  In our view, pulling essential resources from an already underfunded line item makes for bad public policy.  Always a vocal and public leader for legal aid, the BBA voiced its opposition for two key reasons:

  • The Amendment would have reduced funding for legal aid at a time when legal aid programs are forced to turn away nearly 50% of the people who seek services due to inadequate resources.  A reduction of any amount would exacerbate these circumstances.
  • Carving away at MLAC funding would have set a bad precedent for other groups, who  also have legitimate needs.

After all of the work to get level funding in the House budget, Amendment #243 would have undermined our efforts to secure much needed support for legal aid.

-Kathleen Joyce

Government Relations Director

BostonBar Association

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Alimony Reform . . . Seeing the Light at the End of the Tunnel

At its April meeting, the BBA Council voted to support S 665, “An Act to Reform and Improve Alimony,” co-sponsored by Senator Gale Candaras and Representative John Fernandes.  This bill, the result of a Herculean effort led by the Legislative Alimony Reform Task Force, is the result of thoughtful discussion and negotiation.  The final product provides a structure that gives durational and amount limits to alimony orders while giving the court the ability to consider the facts and circumstances of each case, which is key to preserving judicial discretion within the framework of reform.  Our Family Law Section has taken it one step further and has provided additional comments for the Legislature to consider.

The Legislative Alimony Reform Task Force was convened to bring all parties with an interest in alimony reform together in one room to collaborate on a single, compromise piece of legislation. The Task Force constituted one of the broadest groups of family law stakeholders possible, including Chief Justice Paula Carey of the Probate and Family Court in an advisory capacity, and representatives from the BBA, the Massachusetts Bar Association, the Women’s Bar Association, father’s rights groups and private family law practitioners.  Members met for marathon sessions over fourteen months under strict confidentiality  —  trudging through various alimony reform proposals already in existence and working together on each piece of the new legislation.  The BBA’s Family Law co-chair, Kelly Leighton, acted as the BBA’s liaison throughout the process.

The call to reform alimony laws in Massachusetts has gotten louder and louder over the last several years.  These laws have a direct impact on the lives and livelihoods of so many people throughout the Commonwealth.  The current laws give little discretion to judges to set a termination date on alimony payments absent a significant change in the lives of the two parties. Often there is little consistency in alimony rulings because of the ambiguities in the current statutes.

We aren’t the first group calling for change in this area of the law, and it was only after our collaboration with other groups that it appears Massachusetts will finally benefit from legislative reform.  Our work on this started years ago, when the BBA and the MBA convened a joint task force to study the alimony issue and make recommendations.  In 2010 the BBA endorsed the report of that joint task force, which was utilized in the drafting of “An Act to Reform and Improve Alimony.”

Although the alimony reform process may still take some time, it certainly looks like Massachusetts will finally have an alimony system which is consistent while allowing for judicial discretion.  Legislators rely on groups like the BBA to help frame issues in a way that can bring about meaningful change.  The next step in the process is to weigh in publicly with our support when the Judiciary Committee schedules a public hearing on this issue.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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Legal Services Scores Huge Victory in the House Budget

THANK YOU to the Massachusetts House of Representatives for level funding the line item for the Massachusetts Legal Assistance Corporation (MLAC) at $9.5 million.  Yesterday the House Ways & Means Committee unveiled its annual budget.  Because of the $1.9 billion gap between spending and available revenues, there were deep cuts to virtually all areas of government.  Level funding at a time when things like health care, local aid, education, and human services are being cut is an enormous victory.

In the days and even the hours leading up to the release of the budget, advocacy groups searched hard for signals that might forecast what would happen to the line items on which the survival of their programs depends.  Of course there were last minute meetings and phone calls to implore legislators to make legal services one of their key priorities.  But in the days leading up to the release of the budget, advocacy groups also had to think seriously about contingency plans in the event of cuts in funding.

State budgets translate into statements about values.  For the House Ways & Means Committee to level fund legal services in the midst of widespread cuts to other important programs sends a powerful message that the members of the House understand the importance of providing equal justice for all.  Now the Senate is on deck.  While the Senate is reviewing the recommendations in the House proposal, please take a moment to contact your state representative and say thank you for supporting legal services.  Make another phone call and ask your state senator to support legal services and the MLAC line item.  With the Governor and now the House supporting level funding for legal services, things certainly look promising.  But the need for advocacy continues.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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Here Comes the House Budget. . . Now What?

When all is said and done, what is the cost of trying to provide access to justice for all?

Next Wednesday, April 13th, the Massachusetts House of Representatives will release its version of the state budget.  The budget is much more than a list of dollar figures for particular programs. Rather it’s actually a reflection of decisions that help frame the values and priorities for the state.  The decisions reflected in the state budget affect the everyday lives of Massachusetts residents and have a strong bearing on the quality of education in Massachusetts, the level of health care services, safety of communities and so much more.

The budget is the most important bill to move through the Legislature each year.  The BBA has been working for months to advocate for level funding for legal services and the state courts while continuing to urge adequate funding for CPCS and the District Attorneys as well. To be an effective advocate, it is important to understand how and when to make an impact on the process, and ultimately the outcome.  This means knowing what to look for when the budget is posted online next week and how to respond.

Our 3 step state budget review process is:

1) Check the line items for the specific accounts the BBA has been working on.  For example, we are hoping to see that the Massachusetts Legal Assistance Corporation line item 0321-1600 will be level funded at $9.5 million.

2) Check the language of the line items for any earmarks.  Earmarks sometimes appear in a budget item and direct a portion of the money to a particular program.

3) Read the outside sections.  These sections often affect appropriations in the budget or contain policy that would make permanent changes in the General Laws.

The BBA has been anticipating the release of the budget.  For the past two months, we have been campaigning alongside our partners at the Equal Justice Coalition for adequate funding for legal services.  We have been working closely with the Judiciary to determine how best we can help them make their case that adequate funding for the courts is essential to everyone in Massachusetts.  BBA sections have reviewed and studied the proposal relative to the Probation Department and CPCS that was included in the Governor’s budget.  We know that the Governor’s transfer of CPCS to the Executive Branch means those line items have been stricken from the Judiciary accounts.  But public statements from the Speaker indicate the House budget will keep CPCS in the Judiciary.

 No, we’re not done.  Once the House budget is released, we will analyze the priorities articulated and develop an appropriate response.  For the BBA to make an impact on the budget process we have an obligation to speak up in support of our partners and serve as a resource for the growing number of legislators who are not as familiar with some of these issues as they might like.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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BBA Testifies on Probation Reform

The most seasoned of lobbyists will tell you there’s no way to predict how any one legislative hearing will play out, regardless of how much time you have dedicated to advocating on the issue at hand. These marathon hearings are held in small rooms that are packed with people and video cameras. Hours can pass before you have an opportunity to testify — even if you were the first person in the hearing room.  Sometimes there is a full complement of legislative members engaged and asking lots of questions while other times members are rushing out in response to a roll call to vote on some unrelated matter and you’re lucky if you find yourself talking to one lone legislator.

On Wednesday, BBA President Don Frederico and Jack Cinquegrana testified before the Massachusetts Judiciary Committee at a public hearing held on legislation related to reforming the Probation Department.  The hearing room was filled with judges and probation officers.  At the same time the House was in the middle of debating a $325 million supplemental spending bill.  Amid the BBA’s testimony, not one but two separate roll calls occurred, emptying the panel except for a few Senate members.

During his testimony, BBA Past President Jack Cinquegrana explained that part of the problem faced by the Probation Department stems from inefficient sentencing guidelines that prevent successful re-entry into the community.  Following his remarks, Senator Thomas McGee thanked the BBA for bringing attention to that piece of the probation puzzle.

Every chance to be heard on our position is useful, whether it is one-on-one with a legislator, at a public hearing or in a written statement.  Being given an opportunity to offer our probation principles as the Legislature considers the issue is part of the process, and we will continue to participate in that process.

Speaker Robert DeLeo set probation reform as a priority earlier this year saying he wanted it dealt with “early in the session and as expeditiously as possible.”  Rahm Emmanuel once said, “Never let a serious crisis go to waste….it’s an opportunity to do things you couldn’t do before.”  Still Judiciary Committee Chairman Eugene O’Flaherty provided a different take at yesterday’s hearing: “As one individual legislator I am not looking at this in terms of the alleged crisis…I don’t respond to alleged crises.  This is going to be done in a deliberative way.”

Regardless of the reasons that probation reform has been made a priority, this is an opportunity to restore the department to the national model it was in the 1990’s.  Progress is already being made under new Commissioner Ron Corbett.

 

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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BBA Will Make its Voice Heard Re: Probation Reform

The Boston Bar Association (“BBA”) is often asked why we weigh in on some topics and not on others.  The short answer is we are interested in speaking up on issues that have an effect on the practice of law or the administration of justice.  In reality, it’s not that simple.  Getting to the point where we can voice our opinion or share our position involves a careful process.  Sometimes that process is anticipatory while other times it is reactive.

For example, last week’s blog post described one instance where the BBA was pre-emptive and got out front on an issue.  Our members identified an area, updating state consumer debt collection regulations, in which their expertise could be put to use.  Almost all of the recommendations our members made were adopted by the Attorney General’s Office and they are now in the process of promulgating the new regulations.

Next week, on March 30th, the BBA will testify before the Judiciary Committee at a public hearing on probation.  In this instance, the BBA’s involvement has consisted of a measured review and response to the legislation filed by Governor Patrick in January.  This legislation was filed in the wake of the patronage scandal in the Massachusetts Probation Department and the tragic murder of Woburn police officer John Maguire.  Following the death of Officer Maguire, there was a loud and justifiable clamor for immediate review and reform of the department.

The reason the BBA decided to step into the debate is that the proper management and governance of probation is vitally important to the administration of justice.  The final probation reform legislation is sure to have a significant impact on the practice of law and the administration of justice in Massachusetts.

Once the governor’s legislation was filed, BBA President Don Frederico appointed a Council-level study group consisting of a wide range of federal and state prosecutorial and public defense experience.  After weeks of review, which included meeting with experts in the field, thoughtful study and debate, the BBA Council endorsed the study group’s position articulating the guiding principles that the BBA believes any probation reform legislation should be based on.

The study group never set out to correct all of the problems identified in the Ware Report.  Instead, it recognized that there is no one way to solve these issues.  The Legislature needs the freedom to install a system that remedies the problems plaguing the department.

This recent crisis provides an opportunity to make critical changes to the Probation Department.  The BBA hopes that the study group’s principles will help shape criminal justice reform and lead to a more efficient department while improving public safety.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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