Guest Post: Jack Caplan is the current Lawyer Referral Service Co-op Intern at the BBA. Jack is a sophomore at Northeastern University studying Politics, Philosophy, and Economics.

Imagine living frozen in time for years.  Information is extremely limited.  Your movements are closely restricted.  Your schedule essentially fixed.  Most every part of your life is watched, regulated, and controlled.  This is basically the life of an incarcerated person.  Now imagine that after months, years, and sometimes decades of living like this you’re suddenly released back into the free world with little to no support.  You have to catch up to changes in your community, family, city.  Learn new technology, find a job, find a place to live, and generally figure out what is going on all at once.  Over 40% of recently released persons have reported feeling intense anxiety over something as commonplace as taking public transportation.  Imagine being told to walk in a line every day for a decade and then being thrown into Downtown Crossing during rush hour.

That is just a small peek into the extremely revealing Boston Reentry Study (BRS) – a multiyear effort to follow the lives of about 130 people released from Massachusetts prisons to see how they fared in the year after prison, having served out their sentences, and to possibly understand how they got there in the first place.  The results were detailed in part in the new book Homeward: Life in the Year After Prison, by Bruce Western, a Harvard sociologist and one of the principal investigators of the BRS, whom the BBA was honored to co-host last week, in partnership with Lael Chester and the Columbia University Justice Lab.  Western shared with attendees some of the team’s findings, and helped to lead a discussion on how sound policy could have a hugely positive impact on the lives of the formerly incarcerated as well as society as a whole.

Natashia Tidwell of Hogan Lovells LLP, and co-chair of the BBA’s Civil Rights & Civil Liberties Section, introduces the event.

Explaining that the team’s goal was to “understand in granular detail the transition from prison to community”—a transition that the vast majority of incarcerees will ultimately make—Western described the countless hours of interviews he conducted with study participants to attempt to see commonalities, trends, and potential problem areas to be addressed in policy.  One of the most shocking statistics was that over 40% of participants had seen someone killed, and half had been physically and/or sexually abused.

Here Western raised an interesting point about how society usually likes to draw lines in the sand and make distinctions between victims and perpetrators, but very often it can be the same person, just at different times.  The serious histories of victimizations and trauma found in a majority of study participants is concerning in and of itself, and telling real people’s stories – even people who may have made terrible mistakes or even committed horrible crimes – helps to humanize the conversation and show that you can’t really define someone for what might have been just one thoughtless, careless, or potentially cruel action.  Furthermore, an alarmingly high number of participants had latent or ongoing mental health problems such as depression, anxiety, and PTSD, which were usually made worse while incarcerated due to the lack of proper mental health services available and the general stressors that are constantly present.

Professor Bruce Western, discussing the re-entry research that led to his new book, Homeward.

Western also discussed what a difference stable housing can make in someone’s life.  Naturally, many people return to the same neighborhoods that they lived in before being imprisoned.  When you’re thrown into a world that feels so foreign, it can help to find a small sliver of familiarity.  The problem is that those familiar environments are sometimes what led to imprisonment in the first place, and being around some of the same people, places, activities, and situations can make it very hard to reestablish a life.  At the presentation at the BBA, two of the study’s participants, who had become good friends with Western, discussed this.

John Tavares, a Dorchester resident, and Azan Reid, of Mattapan, both talked about how having more-stable home situations benefited them.  They made sure to surround themselves with positive people who supported them, and avoided those who might bring them into their old habits.  One of their biggest challenges was finding work.  After struggling for a while, Azon ended up starting his own landscaping company, and John became a personal care assistant to a woman with cerebral palsy.  Although they’re both in better places now, they remember the lack of support that they felt when they first got out.  They were suddenly thrust into the world with no idea how to do basic things like get new IDs, and didn’t really have anyone who they felt they could relate to.  That feeling of isolation and worry is one reason they think recidivism rates are so high – when you feel lost and confused it’s easiest to go back to what you know, even if that’s a life of crime.

Sheriff Steve Tompkins, Leslie Walker, Prof. Bruce Western, and study participants Azan Reid and John Tavares, speaking at the BBA, June 20, 2018.

Expanding in part on efforts to combat recidivism, Steve Tompkins, the Suffolk County Sheriff, gave an insider’s look into the criminal justice system by explaining his ultimate vision for corrections around Massachusetts and the country.  He feels we use too many sticks, and not enough carrots.  There’s also just a general lack of opportunities within prisons to access job training, education, and other programming, to not only impress parole boards, but also prepare inmates for life on the outside.  He emphasized that the vast majority of people out there want to find good work, but aren’t able to because they grew up in low-opportunity situations, and got swept up into an unforgiving criminal justice system.

Tompkins decried the wide variety of “linear societal problems that could be improved with more government agency coordination.” Leslie Walker, the legendary and longtime (and outgoing) Executive Director of Prisoners’ Legal Services said we are setting people up for failure—both from childhood, when they don’t get proper services and support, and again, in the criminal justice system, when they’re incentivized to plead guilty, doomed by burdensome requirements, and still don’t get needed support.  Both of them hoped that studies like the BRS are able to better inform policy for legislators and voters alike.

Everyone wants a system that is just. The progress made in Massachusetts’ recent criminal justice reforms are certainly steps in the right direction, but there is always more work to be done.  Using information from studies like the one detailed in Homeward, which is informed by the real lived experiences of men and women who have gone through the criminal justice system, we can better advocate for our fellow Americans to steer people away from the justice system before they enter, properly treat those who do, and then support them by offering a real chance to succeed when they come out, for the good of all of us.

As you know, we regularly collect and submit comments on proposed new and amended rules and court orders from our Section Steering Committees, who offer insights from the viewpoint of a particular practice area. The courts have a strong history of listening and responding to the concerns and suggestions of the Sections, and their insights are often reflected in the final iterations of the rules. Indeed, just this month the court released a final version of a rule that incorporated feedback from BBA sections on the proposed version. The Rule – Rule 5(b) of Trial Court Rule XIV: Uniform Rules on Public Access to Court Records on use of the online Attorney Portal – will become effective on July 1, 2018, and can be read in full here.

In October 2017, Chief Justice of the Trial Court Paula Carey issued a notice inviting comment on proposed amendments to Trial Court Rule XIV Public Access to Court Records, a Rule with which the BBA already had a long history. In 2016, the BBA established a working group to consider the proposed rule and, along with various sections, submitted substantial comments. You can read about our past work on this here and here.

When Trial Court Rule XIV was eventually adopted, Section 5(b), on Remote Access to Information in Electronic Form through the Attorney Portal, was given only provisional approval, with a note that it would be reconsidered following further recommendation from the Chief Justice of the Trial Court. The invitation to comment reflected the expected revisions to this Section, and proposed a few key changes, namely:

• The reintroduction of the ability to search for other non-exempt cases by party name, even when one has not entered an appearance in the case
• The addition of safeguards, specifically “Terms of Use,”that attorneys must accept before logging on to the Portal, which prohibit the improper use of accessed data and data scraping. These terms also include a statement that all searches can be audited and are subject to sanctions provided by law or court rule, with violations reported to the Board of Bar Overseers.

The Ethics Committee, Criminal Law Section Steering Committee , and Business and Commercial Litigation Section Steering Committee submitted comments on the proposal. Members of these Committees were generally satisfied with the substance of the rule itself, but nevertheless highlighted a few aspects of the proposed amendment that could benefit from additional explanation or clarity.

For example, the Ethics Committee began by stating that they felt the comments were reasonable and useful overall, but noted one provision they felt was a bit vague. The Terms of Use (“terms”) provide that use of the portal cannot risk the “integrity or security of the trial court’s case management system.” Members of the Committee did not feel it was totally clear what types of behavior would create that risk and some were concerned that the burden of reducing this risk would fall much heavier on those working in smaller firms or with fewer resources. Members suggested adding an intent element by, for example, inserting the word “knowingly,” that would help to lessen the risk of unfairly burdening certain types of portal users.

The final version of the terms adopts this recommendation and the revised language now reads: “You may not use the Attorney Portal to access information in a manner that knowingly risks the integrity or security of the Trial Court’s case management system…”

The Criminal Law Section Steering Committee made a few comments on both the rule itself and the terms. Specifically, the Committee discussed the piece of Rule 5(b) that provides the Trial Court Departments can request permission from the Chief Justice to exempt certain criminal case types or categories of information from remote access. Members hoped the portal would include department-specific notice as to the types of cases exempted, to prevent any uncertainty that may arise when a search returns no results. These members were clear, however, that they did not think a search by a specific name should indicate that there was a sealed or impounded case, for privacy purposes, but instead there should be a general notice of the types of cases exempted (e.g. juvenile cases, child custody actions, etc.).

The Committee’s comment related to the terms noted a point of ambiguity in a provision, which stated in the proposed language that one must not leave their computer or work area unsecured while logged in to the portal. Members felt this provision was somewhat vague as drafted (what exactly does it mean to leave a work area “unsecured”?) and redundant, as the Terms provide elsewhere that you are fully responsible for the activity that occurs under your login. In response to this suggestion, the Court removed mention of the “unsecured work area,” leaving it clear that one is fully responsible for all activity that occurs under the login credentials.

Finally, the Business and Commercial Litigation Section Steering Committee pointed out a few additional areas they considered to be somewhat unclear. First, in the rule itself, members thought the language could be improved to ensure that it is clear the rule does intend to allow attorneys to search for and access those cases in which they have not appeared. In the revised Rule, the language was edited to make this point more evident, and it now makes clear that registered attorneys “shall have access to a portal providing remote access to all nonexempt cases, and a calendar of scheduled events in the cases in which they have entered an appearance” (emphasis added).

In the terms, the Committee thought the definition of “data scraping” could be improved in order to reduce the risk of overbroad application of this prohibition to standard automatic features (like copy and paste). The proposed definition described data scraping as “an automated process, or technique, used to extract or collect data from a source, such as a website or applications.” Committee members offered an alternative definition they felt would be broad enough to offer security against improper data collection but not so broad as to limit proper usages of the portal. The new definition in the final version of the terms largely tracks the recommendation and now describes data scraping as “the use of a computer program or other automated process or technique to extract or collect data from the Trial Court’s case management system.”

Finally, the committee members felt the terms should be revised to clarify an attorney’s responsibility for the use of their login credentials. The proposed terms provided that one may be subject to sanctions and referred to the Board of Bar Overseers “if you (or persons you allow to use your login credentials)” use the portal in a way prohibited by the terms. Members thought this was inconsistent with a prior provision which made clear that one is fully responsible for all activity that occurs under one’s login credentials, regardless of whether permission to use was granted. The final version of terms adopts this recommendation and now provides that the consequences for prohibited use apply to attorney use as well as “persons who use your login credentials.”

…

As always, we are very appreciative of the hard work and expertise offered by the Committee Members and were thrilled that the court adopted many of the suggestions. To learn more, you can read the full comments submitted by the BBA here, and to read more about the impact of past BBA Comments check out:

Busy BBA Sections Submit Comments on Five Proposed Rule Changes and New Rules

BBA Government Relations Year in Review: Part II

Update: Online Access to Court Records

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

 In celebration of Pride Month, and in advance of the Pride Parade this weekend, we wanted to take a moment to trace the BBA’s own long history of supporting LGTBQ+ rights.

To begin, we have to go back nearly 45 years, when then-President Edward J. Barshak wrote to leaders and members of the Bar to ask them to reassess the role a bar association should play in important public matters that some could perceive to be “political.” In a list of percolating issues that could fall within that category, President Barshak included anti-discrimination protections for lesbian and gay individuals in the Commonwealth.

One of the reasons why this may have been on the top of the mind of President Barshak in 1974 is because Massachusetts first introduced an anti-discrimination law that would protect “homosexuals” from discrimination in employment, housing, credit, and public accommodations in 1973. It took nearly two decades for the Legislature to pass these important protections, and even still, when the bill eventually passed in 1989, Massachusetts was only the second nation in the country to enact a statewide sexual orientation anti-discrimination law. Though not perfect by any means, the legislation offered a significant set of protections and allowed the Massachusetts Commission Against Discrimination to have jurisdiction over complaints based on sexual orientation. The BBA was proud to stand in support of passage of this law, nearly three decades ago.

Given this history, it only makes sense that when Massachusetts began to consider expanding these anti-discrimination protections to cover gender identity, the BBA would join in support. That’s why, in 2007, the BBA Council voted to support H.1722, an Act Relative to Gender Based Discrimination and Hate Crimes, which would clarify that gender identity and gender expression were protected in existing anti-discrimination and hate crime laws. The proposed law included protections in employment, housing, credit, higher education, and public accommodations. You can read the BBA’s past testimony in support of that legislation here.

We continued to advocate for these protections until the law eventually passed in 2011, but the final version differed from the proposed 2007 bill in one major respect: protections were extended to employment, housing, credit, and higher education but not public accommodations—meaning public places like retail stores and malls, restaurants, hotels, public parks, theatres, public transportation, and medical offices. The fight for full protections, including public accommodations, continued until 2016, when An Act Relative to Transgender Anti-Discrimination was passed and protections were extended to these spaces. We celebrated the long overdue inclusion of this important provision.

As you know, the inclusion of public accommodation protections for transgender individuals is at stake on the November ballot, as opponents seek to repeal the law, so be sure to read more about the Freedom for All MA Coalition that’s leading this effort (with the BBA as one of many members), RSVP to this BBA volunteer opportunity, and, most importantly VOTE YES to ensure this law remains on the books!

In addition to being on the forefront of offering antidiscrimination protections, Massachusetts also famously led the way on marriage equality, becoming the first state in the country to legalize same-sex marriage. The BBA has a long history in support of marriage equality, beginning in 2002, when we became one of the first bar associations in America to file an independent amicus brief in Goodridge v. Department of Mental Health, arguing that denying civil marriage licenses to same sex couples is a violation of the Massachusetts Declaration of Rights.

This brief was just the beginning of more than a decade of work in support of state and nationwide marriage equality, culminating in the right to marry that same sex couples enjoy throughout the nation today. A few highlights of that work:

• In 2005, we drafted an amicus brief in Cote-Whiteacre v. Dept. of Public Health supporting the position of Gay and Lesbian Advocates and Defenders (GLAD). In that brief, we argued that the 1913 statute preventing non-resident couples from marrying in Massachusetts if the marriage would be void in their home state, was unconstitutional.
• In 2011, we signed on to an amicus brief in Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services, and Nancy Gill et al. v. Office of Personnel Management et al., arguing that classifications based on sexual orientation must be subjected to heightened scrutiny. The brief related to two cases involving a constitutional challenge to Section 3 of the federal Defense of Marriage Act (“DOMA”) being heard before the First Circuit.
• In 2013, we joined a coalition of bar associations, civil and human rights groups, and public interest and legal services organizations and signed onto amicus briefs in two cases before the Supreme Court of the United States: United States v. Windsor and Hollingsworth v. Perry. In both briefs, the amici urge the Court to presume the “unequal treatment is based on deep-seated prejudice or baseless stereotypes and requires a more searching review of the actual grounds for the discrimination to prevent governments from justifying it with post hoc rationales.” Read then-President J.D. Smeallie’s statement on the “historic victory for marriage equality” following the decision in Windsor, when the court ruled that the federal Defense of Marriage Act violated the U.S. Constitution.
• Finally, in 2015, the BBA celebrated the decision in Obergefell v. Hodges, and then-President Julia Huston stated: “Today, the U.S. took a substantial step closer to truly ensuring equal justice for all. The Boston Bar Association could not be more pleased with the historic decision of the U.S. Supreme Court to recognize marriage equality. Same-sex couples have been denied a striking number of core rights and protections, which are automatically granted to married couples. This discrimination is unacceptable, unconstitutional, and thankfully now in our past.”

While we celebrated the final resolution of same-sex marriage in 2015, the BBA began its work on another important piece of legislation in the Commonwealth: a set of bills that would ban the use of “conversion therapy” by licensed professionals on minors. Unfortunately, these important protections did not pass last session, but there is still time this go around. Be sure to visit our new post that explains just why this legislation matters and what you can do to make sure Massachusetts does not miss its chance to join the growing number of states standing up to protect their LGBTQ+ youth in this way.

Of course, the BBA’s support of LGBTQ+ attorneys and individuals extends beyond legislation and amicus briefs. Nearly 25 years ago the BBA Council unanimously approved a policy reducing its membership fees for Massachusetts Lesbian and Gay Bar Association, now the Mass. LGBTQ Bar Association, members according to the same fee schedule offered to members of other affinity bar associations. In 2010, the BBA was proud to be able to institutionalize its partnership with six local affinity bar associations, including the MA LGBTQ Bar Association, and provide a permanent home for them at 16 Beacon.

Also in 2010, the BBA launched the Beacon Award, recognizing outstanding efforts in diversity and inclusion by honoring an individual, organization, group, or firm that demonstrates exceptional leadership in creating a more diverse and inclusive legal profession in Boston. At the 3^rd Annual Beacon Award in 2012, the BBA was proud to honor GLAD and the Massachusetts Attorney General’s Office for their work to defeat (DOMA) and protect same-sex marriage.

The Boston Bar Foundation (BBF) also plays an important role in this history, and it has made grants to a number of legal aid and advocacy organizations that champion LGBTQ+ rights and work to protect and fulfill legal protections for LGBTQ+ individuals. Additionally, in 2017, the BBF made a grant to the Massachusetts Trial Court to fund the development of a training module for court employees on serving and interacting with transgender court users and co-workers. The training aims to increase the experience of dignity and respect for all people using the courts, to promote inclusivity in our justice system, and to ensure equal access to the courts for all residents of the Commonwealth.

While there is much to celebrate about the progress made, both as an association and as a Commonwealth, much hard work remains. We hope you’ll join the BBA in celebrating Pride by recommitting to this fight, and what better way to start than by ensuring transgender antidiscrimination protections remain the law of the land and that Massachusetts LGBTQ+ youth are protected from harmful conversion therapy practices.  

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Nearly three years ago, the BBA endorsed legislation that would ban the use of “conversion therapy” on minors by licensed health care professionals. Since that initial endorsement, the BBA has kept you posted on our continued advocacy, presenting testimony at hearings and sending letters urging the Commonwealth to stand up for its LGBTQ+ youth. And last month, we asked you to join us, and MassEquality, in urging for these important protections, requesting you to reach out to your own representatives in honor of the International Day Against Homophobia, Transphobia and Biphobia.

As a brief refresher, this legislation is important because it offers protection for minors from a practice that medical and child welfare experts agree does not align with current scientific understandings of sexual orientation and gender identity and is not only ineffective and misleading but downright unsafe. The American Psychological Association, American Medical Association, American Academy of Pediatrics, National Association of Social Workers, and the Pan American Health Organization, among many others, have all issued policy statements condemning the practice. These statements make clear that conversion therapy is unnecessary as it attempts to “cure” something that is not an illness or disorder, is ineffective in bringing about the “change” sought and poses a high risk of seriously harming patients, especially minors.

Under the bill, adults would still be free to choose conversion therapy, no matter how ill-advised, for themselves. But given the substantial likelihood of serious psychological and social harm to minors who are subjected to conversion therapy, it is essential that they are protected from the imposition of this misguided treatment at the direction of their parents or guardians.

The American Bar Association, in its Resolution 112, has also urged that “governments… enact laws that prohibit state-licensed professionals from using conversion therapy on minors,” based on the recognition that LGBTQ+ people should enjoy the basic right “to be free from attempts to change their sexual orientation or gender identity.” The BBA has a long history of defending principles of non-discrimination and equal protection, and we are proud to stand with these national groups and local organizations like MassEquality and GLAD in advocating for these important protections for MA LGBTQ+ youth.

While the bill has not yet moved, there is still time to ensure Massachusetts youth have access to these protections. If you haven’t done so already, please call your State Representative, and ask them to do two things:

1) Contact the Chair of the House Ways and Means Committee, Rep. Jeffrey Sánchez, and urge him to report favorably on the Conversion Therapy Ban Bill (H.1190) as soon as possible.

2) Contact Speaker of the House Robert DeLeo, and ask him to make H.1190 a priority and to bring the bill to a vote during the current legislative session, ending July 31.

For more information on just why this legislation is so important, feel free to read our recent letter to the House Speaker and Mass Equality’s handy fact sheet. MassEquality also produced a draft email in support of the legislation, and you can also reference this sample phone script produced for the May 17 call to action. Just make sure to reference updated bill number H.1190 and mention that that you are calling in honor of Pride Month instead!

To date, eleven states, including New Jersey, California, Vermont, and Connecticut, have passed legislation barring the use of conversion therapy on minors, and it’s time for Massachusetts to join these ranks!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Following the Governor’s proposed budget, and the House budget, the Massachusetts Senate debated the Ways and Means Committee’s budget this week. Thank you, again, to all who responded to our ask and reached out to your Senator, urging them to support key amendments related to access to justice and criminal justice reform.  Here’s where things stand now:

Massachusetts Legal Assistance Corporation (MLAC)

We’ve made the case for adequate funding for MLAC, the largest provider of funding for legal services programs in the state, many times over. As you’ll recall, this year we are asking for a $5 million increase in the MLAC budget line-item (#0321-1600), for a total appropriation of $23 million. The Governor proposed an $18.18 million appropriation, while the final House budget appropriated $20.75 million. The Senate Ways and Means budget recommended a $19 million appropriation.

Senator Cynthia Creem and Senator William Brownsberger filed an amendment (#992) asking for an additional $4 million, later redrafting the request to seek a $2 million instead. The final Senate Budget approved of the revised amendment, making the total appropriation $21 million. This represents a $3 million (or 17%) increase over the current year’s appropriation of $18 million. We are very grateful to the continued leadership for Senators Creem and Brownsberger, and the more than 25 co-sponsors of amendment #992. The House/Senate budget conference committee will be tasked with setting the final figure in the budget that goes to the Governor in the coming weeks, with the expectation that it will be somewhere between $20.75 million (the House figure) and $21 million (the Senate figure).

Statewide Housing Court Expansion

As you know by now, we were part of the coalition calling for statewide expansion of the Housing Court for years, and we were thrilled when funding and authorizing language for the expansion was included in last year’s FY18 budget. However, for the expansion to be successful, the full panoply of benefits must be afforded to all residents of the Commonwealth, so the Housing Court must be adequately staffed and include the important parallel expansion of programs like Lawyer for the Day and the Tenancy Preservation Program (TPP), which provides a unique intervention that enables trained counselors to assist with services in cases involving persons with disabilities, helping to prevent homelessness and shelter stays. In light of this, we supported a $2.6 million appropriation for line-item 0336-0003, which would fully fund Housing Court expansion, and a $1.3 million appropriation for line-item 7004-3045, which would fully fund the TPP.

Governor Baker, a long-time supporter of statewide expansion, proposed the full $2.6 million, while the House Budget appropriated $1.5 million. We are happy to report that the Senate Ways and Means budget recognized the importance of this expansion and also recommended the full $2.6 million appropriation, which made its way into the final Senate budget. The final House budget would add $250,000 to the Governor’s proposed $500,000 for the TPP line-item, and the Senate Ways and Means Budget also recommended $750,000.

A big thanks goes out to Senator Julian Cyr, who filed amendment #791, seeking to fully fund the TPP with a $1.3 million appropriation, and we are happy to report that the final Senate budget included the full appropriation! We will urge the conference committee to use that amount in their final budget.

Trial Court

We also know just how important it is that the Trial Court as a whole  receive adequate funding, and we are, as usual, advocating for the department’s maintenance funding request and their additional modules that will further enhance efficiencies and improve the user experience.

For the FY19 Budget, the Trial Court is requesting a maintenance-level appropriation of $671.1 million. The Governor’s Budget went some way towards this maintenance funding, and the final House budget included the full maintenance request. As we did the House, we urged the Senate to ensure this essential branch of government receives the funding it needs to offer adequate access to justice for the residents of the Commonwealth, and we are grateful the Senate recognized the importance of this ask and also provided the full maintenance request in their budget.

Committee for Public Counsel Services (CPCS)

We continue to advocate for fully funding CPCS operations in the FY19 budget, through a series of line-items (0321-1500, 0321-1510, 0321-1520). As you know, CPCS plays a vital role in our judicial system, providing representation to indigent persons in all criminal and some civil cases and administrative proceedings, in keeping with the right to counsel under our laws and the Constitutions of Massachusetts and the United States.

The House budget did recognize the importance of CPCS’s role, and though the direct appropriation did not match CPCS’s full $257.78 million ask, which the BBA supports, it significantly increased the appropriation for compensation paid to private counsel. The Senate budget also offered  important additional improvements, including a specific measure to increase salaries for public defenders. We hope, and we’ll be asking, the conference committee to also recognize the importance of CPCS and provide it adequate funding in the final budget.

Residential Re-Entry Services

As you may have seen in our recent advocacy alert, we added an additional item to our budget ask in the Senate: funding for residential re-entry services to reduce recidivism. (Check out our letter to the Senate, where we provide more detail as to just why this line-item is so important). Massachusetts recently took a huge leap towards ensuring our criminal justice system is more fair and effective. While there is much to celebrate, there is still much to be done. Each year thousands of Massachusetts residents are released from jails and prisons, many with little or no resources to help in securing essential needs like employment and housing.

Because of this, the BBA recommended in its report, No Time to Wait, that the state “ensure adequate funding and accountability for anti-recidivism efforts.” One step towards this is through line-item 0339 -1011, which would offer funding for community-based residential reentry services that provide housing, workforce development, and case management for recently released individuals, fostering connections and stability for those re-entering the community.

While the House budget proposed a $3 million appropriation for this line-item, it did not appear in the Senate Ways and Means budget. With the BBA’s support, Senator Brownsberger filed an amendment seeking $5 million toward these important services, but it was not adopted in the final Senate budget, so now, it’s on to the conference committee, which we will urge to at least incorporate the House’s language, so that these worthy programs can secure state funding.

Stay on the lookout for more action alerts — we may still need your help to make sure these important items are adequately funded in 2018!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Two important pieces of legislation with broad, bipartisan support are currently making their way through the Massachusetts Legislature, having passed the Senate last month. The bills, one that will incorporate civics education into public school curricula and one that would create standards for teaching financial literacy that could be deployed in schools throughout the Commonwealth, were both endorsed by the BBA Council at their April Meeting.

The BBA is proud to be able to voice its support as the legislation is taken up by the House!

Financial Literacy

Under Senate Bill 2374, An Act Relative to Financial Literacy in Schools, the Department of Elementary and Secondary Education would develop financial literacy standards that could then be adopted into existing school curricula. The Department would also be tasked with making resources publicly available, consulting with experts for insight into the best materials and best methods of instructions. The bill would further revive an advisory committee established in 2012 to create and oversee a pilot program related to financial literacy for students. That Committee will work in consultation with individuals with relevant experience, including bankruptcy attorneys, to develop and implement the standards.

There is a long history of support for, and active engagement in, financial literacy education here at the BBA. In 2005, the Joint Bankruptcy Court and BBA Task Force on Financial Literacy for Students released a report documenting the need for financial literacy education. As part of that report, the Task Force proposed a program for providing this crucial financial literacy education to public school students. That ultimately spearheaded the launch of the M. Ellen Carpenter Financial Literacy Program, now in its 13^th year. To date, the program has reached over 6,200 students and engaged over 1,500 volunteer attorneys across the state. As part of the program, attorneys teach three classroom sessions: one on personal finances and budgeting, another on using credit and credit cards, and the third on financing large purchases. Then, some students are able to take a field trip to the U.S. Bankruptcy Court, where they observe, and sometimes participate in, mock hearings.

The BBA is delighted to have offered this education to so many, and we stand ready to offer the expertise gleaned over the past 13 years to help expand that offering so that one day no students in the Commonwealth are denied an opportunity to learn invaluable skills that will help to ensure their future financial outlook.

Civics Education

Senate Bill 2375, An Act to Promote and Enhance Civic Engagement, requires that the Board of the Department of Elementary and Secondary Education ensure all public schools provide instructions in civics. The broad scope of that instruction tracks current statutory guidance on matters to be covered, including the constitutions of the U.S. and the Commonwealth, the Bill of Rights, and local history. However, it also expounds in more detail on what the Department should ensure any civics framework includes, specifically noting things like “the roles and responsibilities of a citizen in a democracy, the development of media literacy skills…community diversity and the role it plays in the democratic process,” and “knowledge of the ways in which civic participation has been restricted throughout history.”

In addition, the bill requires every public school student to have the opportunity to participate in at least two student-led civics projects, including one that must be completed after the 8^th grade and is a high school graduation requirement. The nature of the projects themselves is quite flexible; they can be class-wide, individual, or small group. In addition, the legislation expounds on a number of other initiatives, including “civics challenges” where students will be able to enter their projects into competition and “regional civic councils” to monitor the development of the curriculum and provide additional resources. Many of these are dependent on adequate funding, which is not specifically appropriated in the legislation, though it does call for the creation of a Civics Project Fund that would be funded by legislative appropriation and private sources (subject to certain restrictions).

This week, BBA President Mark Smith of Laredo & Smith LLP sent a letter to Chair William Galvin of the House Committee on Rules, where the bill currently sits, expressing our support. That letter cited recent, alarming research that documented the lack of understanding many Americans have about basic government processes and institutions. For example, one-in-five believed that a 5-4 Supreme Court decision is returned to Congress for reconsideration. A lack of understanding of the function of our courts can make the judiciary susceptible to partisan attacks that undermine necessary faith in the judiciary as the third co-equal branch of government. Retired U.S. Supreme Court Justice David H. Souter noted, in 2009, that the biggest threat to judicial independence is a “public majority unaware of the basic shape of the government.”

In the letter, President Smith urges passage of the measures and offers BBA support in development and implementation of an enhanced civics curriculum, noting:

The provision of civics education in public schools will ensure the next generation understands the role of all parts and functions of the government, sustaining confidence in the key institutions of a constitutional democracy, including the courts, the jury, and other critical aspects of our justice system.

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The BBA is proud to support S.2375 and S.2374, and we hope the House will take the opportunity to empower the youth of Massachusetts to secure their best futures.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Guest Post: Jack Caplan is the current Lawyer Referral Service Co-op Intern at the BBA. Jack is a sophomore at Northeastern University studying Politics, Philosophy, and Economics.

The BBA’s Law Day Dinner is held annually to celebrate the rule of law and those who step up to protect it and ensure that it remains an important institution of our democracy. Over 800 guests – a crowd made up of attorneys, elected officials, students, business leaders, members of the judiciary – joined us last week to acknowledge our shared values. We heard from, and celebrated, individuals who stand unwavering in their belief in access to justice for all.

To kick off the event, BBA President Mark Smith, a founding partner of Laredo & Smith, LLP, spoke about the BBA’s year so far.  In  the first four months of the calendar year, we filed three Amicus briefs. In Commonwealth v. Lutskov, we argued against adult mandatory minimums being imposed on juveniles. In U.S. v. Brian Joyce, we have continued our longstanding efforts to protect attorney-client  privilege. In Committee for Public Counsel Services v. Attorney General, we argued in favor of measures to prevent future misconduct  on the scale of Amherst Drug Lab Chemist Sonja Farak’s behavior.

We also have our members and staff to thank for their tireless lobbying for the passage of Massachusetts’s new overhaul of the criminal justice system. Following a detailed report which was the labor of months of research by our Criminal Justice Reform Working Group, the BBA published No Time to Wait: Recommendations for a Fair and Effective Criminal Justice System. In his remarks, Smith emphasized how thrilled we were to see so many of our recommendations incorporated into the version that Governor Baker signed just a few weeks ago.  The next steps, he informed the packed room, include the BBA’s pilot Service Innovation Project, which will focus on the school-to-prison pipeline.

Smith then presented the BBA’s Thurgood Marshall Award, which honors private-practice attorneys for pro bono work. Blue Cross Blue Shield of Massachusetts Vice President & General Counsel Donald Savery accepted the award on behalf of the company’s legal department, for representing six children who came to the United States from Central America as unaccompanied minors. The pro bono project is a partnership with Kids in Need of Defense (KIND), and AZULatinx, an employee resource group for Latinx staff members within Blue Cross.  The team of attorneys, paralegals, and other staffers are doing all that they can to help these children start on a legal path to U.S. citizenship.

Smith also presented Prisoners’ Legal Services Executive Director Leslie Walker with the John G. Brooks Legal Services Award for her nonstop work to ensure that incarcerated people are treated with dignity and respect.  Over her 17 years at the organization (soon coming to an end, as her retirement date approaches), Walker has lobbied, advocated, litigated, taught, and led a small but impactful staff to a series of meaningful victories.  Walker has  educated legislators and the public alike about inhumane treatment in prisons including solitary confinement, and the shackling of mothers giving birth.  In her remarks, Walker urged guests not to  adopt an ‘out of sight, out of mind’ mentality about prisoners.

The BBA has a long a vibrant history of advocating for public policy change at the local, state, and federal level, and no matter how many engaged members or dedicated staff we have, most of these changes simply wouldn’t be possible without the support of the elected officials who  cast the vote.  That’s why we were proud to present Massachusetts State Senator Cynthia Creem with this year’s Distinguished Legislator Award. Senator Creem, the current Majority Leader in the State Senate, has spent over 30 years in various public offices, and said that serving on the conference committee for the recent criminal justice reform bill made her incredibly proud. She decried that for too many years the focus was only on punishment and not rehabilitation. What’s critical, she informed the crowd, is that we consider both the crime’s impact and the underlying causes that led the perpetrator to commit it. The reforms laid forth in the new law are moving Massachusetts ever closer to that ideal of justice.

To round off the evening, Adrian Walker gave a keynote speech, which focused mostly on his contributions to the Boston Globe’s recent series on race in Boston. As a columnist for the Globe’s Metro section since 1998, Walker has watched Boston evolve in many ways and remain stagnant in others. When first approached about working with the Spotlight Team on the series, Walker began thinking about the fact that Boston is a majority-minority city, but doesn’t feel like it. Many people want to think that Boston has moved beyond the ugly and virulent racism of the anti-bussing violence from the 1970s, and although a lot of the outright violence has subsided, racism has manifested and embedded itself in other ways.

The series covered sports, hospitals, colleges, power (including the practice of law), and the buildup of a burgeoning Seaport neighborhood that has done little to involve the city’s black community. Walker alluded to a shocking but accurate statistic from the series – one which prompted some readers to call and ask whether the Globe had made a mistake. The household median net worth is almost $250,000 in Greater Boston for white families, but it is only $8 for black families.

While Walker’s remarks included many hard truths, he also shared that he is optimistic based on the story’s reception. He has found his fellow Bostonians ready to confront serious, but not insurmountable, challenges.

“Improving Boston’s racial reality is in all our hands,” Walker said, adding that the first step is simply to be vigilant and notice inequities around us.

Near the close of his speech, Walker shared words from Kenyatta Savage,  who was featured on the front page of the Globe as part of the series: “I’ve been talking to a wall for the last 20 years, and all of a sudden I feel like that wall has actually loosened so I can actually push it down,” he said. “You touched on some stuff that a lot of people have been going through. To use me as a cover [photo], it was like, ‘Thank you.’ ”

We would like to thank the evening’s attendees for joining us, and the event sponsors for their support.

Following the Governor’s proposed budget, and the House Ways and Means proposed budget, the Massachusetts House of Representatives approved its FY19 budget last week.  We want to extend a big thanks to all of you who responded to our call to action and reached out to your Representatives, urging them to support key access-to-justice amendments.

While we have already turned our attention to the Senate, sending a letter to the Senate Ways and Means Committee this week, here’s where things currently stand in relation to our BBA budget priorities.

Massachusetts Legal Assistance Corporation (MLAC)

            We’ve made the case for adequate funding for MLAC, the largest provider of funding for legal services programs in the state, many times over.  Since 2014, this advocacy has relied on the BBA’s own Investing in Justice Report, which demonstrated the great need for legal aid, with nearly two-thirds of otherwise eligible individuals turned away due to a lack of resources, and revealed the great fiscal benefits of investing in legal aid, with millions of dollars saved by the State and millions more brought in by federal benefits.

Unfortunately, due to increasing demand and a lack of funding, nearly two-thirds of those seeking help, or 45,000 individuals, continue to be turned away each year. Plus, changes in federal policies on issues like immigration and cuts to anti-poverty programs, threaten to increase the demand even further, just as continuing challenges like the opioid crises and emerging issues like the resettlement of individuals impacted by Hurricane Maria and other natural disasters add to the burden borne by legal services. And the consequences of this lack of help can be devastating, as one’s family, home, health, and job can be at stake in civil legal matters. As mentioned, though, our Report also revealed that increasing funding for civil legal aid was not just critical for expanding access to justice, it also was a wise investment, and actually pays for itself, and more, by saving the state money on “back-end” costs such as emergency shelter, foster care, and health care.

This year, we are supporting MLAC’s ask for a $5 million increase in the MLAC budget line-item (#0321-1600), for a $23 million total appropriation.  Though an additional $5 million would still not come close to meeting the great need for civil legal aid, it would have tremendous impacts and allow for an additional 7,500 Massachusetts residents to receive this critical resource.

The Governor proposed an $18.18 million appropriation, while the final House budget appropriated $20.75 million. We are very grateful to the leadership of Representative Ruth Balser and Representative Clair Cronin, who filed an amendment for additional funding for civil legal aid, beyond the $2 million increase provided by Ways and Means, and the more than 100 co-sponsors, who made the additional $750,000 achieved in the amendment process possible!

Statewide Housing Court Expansion

As you know by now, we were part of the coalition calling for statewide expansion of the Housing Court for nearly four years, and we were thrilled when funding and authorizing language for the expansion was included in last year’s FY18 budget.

This expansion means that the 84 cities and towns that previously lacked access—representing nearly a third of the state’s population—now enjoy the many advantages Housing Court has to offer. This includes judges who have specialized knowledge on all, often complex housing law matters, housing specialists who help tenants and landlords settle and mediate cases, and the Lawyer for the Day program which offers assistance for unrepresented tenants and landlords who otherwise cannot afford it. In addition, the Tenancy Preservation Program (TPP) provides a unique intervention that enables trained counselors to assist with services in cases involving persons with disabilities, helping to prevent homelessness and shelter stays.

In order for the full gamut of benefits to be expanded statewide, the Housing Court must be adequately staffed and include the important parallel expansion of programs like the TPP and Lawyer for the Day. As such, we are supporting a $2.6 million appropriation for line-item 0336-0003, which would fully fund Housing Court expansion, and a $1.3 million appropriation for line-item 7004-3045, which would fully fund the TPP.

Governor Baker, who has long been a leader on ensuring expansion of the Court, proposed full-funding for expansion, while the House budget appropriates $1.5 million. The TPP line-item fared a bit better in the final House budget, resulting in an increase of $250,000 from the Governor’s proposed $500,000. A special thanks goes to the leadership of Rep. Chris Walsh, who filed an amendment on the expansion line-item and Rep. Byron Rushing, who filed an amendment on the TPP line-item.  We hope the Senate will continue to prioritize the expansion of these important measures this year.

Trial Court

We also know just how important it is that the Trial Court receives adequate funding, and we are continuing our advocacy in support of the department’s maintenance funding request and their additional modules that will further enhance efficiencies and improve the user experience.

The Trial Court is comprised of seven departments, which handle nearly all of the cases in the Commonwealth and represent the main point of contact for Massachusetts residents who have legal issues they need resolved. In spite of steady increases in their appropriations in the years since the Great Recession, the Trial Court remains underfunded. Over the last few years, it has made great strides in finding ways to work smarter and leverage technological advancements to get more done with less. As a result of this work, they have been able to continue the efficient and effective operation of the courts, even with a 19% reduction in staffing since FY02.

Notwithstanding the success of these transformational efforts, the Trial Court still has a major need for increased funding to sustain and continue the progress made in recent years. For example, the Trial Court’s facilities are in dire need of upgrades in the area of security systems. These upgrades are necessary to preserve the safety of court employees, users, and the general public, ensuring the Trial Court remains effective and accessible for all residents of the Commonwealth.

For the FY19 Budget, the Trial Court is requesting a maintenance-level appropriation of $671.1 million. The Governor’s Budget went some way towards this maintenance funding, and the final House budget included the full maintenance request.  We have urged the Senate to ensure this essential branch of government receives the funding it needs to offer adequate access to justice for the residents of the Commonwealth.

Committee for Public Counsel Services

Finally, we continue to advocate for fully funding CPCS operations in the FY19 budget, through a series of line-items (0321-1500, 0321-1510, 0321-1520).  As you know, CPCS plays a vital role in our judicial system, providing representation to indigent persons in all criminal and some civil cases and administrative proceedings, in keeping with the right to counsel under our laws and the Constitutions of Massachusetts and the United States. Adequate funding would help CPCS to increase salaries of their staff attorneys, who are woefully underpaid in comparison to their colleagues in other states, and to attorneys of similar experience in the executive branch. This is not merely our conclusion but that of the Commission to Study Compensation of Assistant District Attorneys and Staff Attorneys of the Committee for Public Counsel Services. The BBA supports the Commission’s recommendation that minimum salaries for these attorneys (as well as for Assistant District Attorneys) be increased, over time, to match the corresponding minimums for executive branch attorneys.

Inclusion of adequate funding for CPCS in the FY19 budget is especially critical because the state faces what the Chief Justice of the Supreme Judicial Court has called a “constitutional emergency.” In cases where a child is facing removal from parental custody, the parents and children have a right to representation at a hearing within 72 hours. There are too few attorneys taking up these cases, and as a result, children and parents, especially in the western parts of the state, are being denied their constitutional right to a timely hearing. Adequate funding, in conjunction with an increase in compensation for bar advocates, or private attorneys who defend indigent clients, would assist CPCS in finding attorneys willing to take on these difficult cases and protect the constitutional rights of these parents and children.

The House Budget seemed to recognize some of these crucial needs by significantly increasing the appropriation for compensation paid to private counsel. However, the direct appropriation still falls quite short of CPCS’s $257.78 million ask, and we hope the Senate will support CPCS this full amount and help to ensure the agency is able to efficiently and effectively provide their necessary services.

Stay tuned for more opportunities to support the judiciary and equal access to justice as the budget debates continue!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Earlier this week, the Boston Bar Association filed an amicus brief in the case of Committee for Public Counsel Services v. Attorney General (SJC-12471), the matter arising from the Amherst Drug Lab Scandal, where it was discovered that thousands of drug tests were compromised by the misconduct of state chemist Sonja Farak. The scandal grew, however, when it was later revealed that the response to the misconduct once discovered was also tainted by serious prosecutorial misconduct. Since then, thousands of cases have been dismissed by the District Attorneys and Attorney General’s Office, but three remaining questions have been reserved and reported to the full Supreme Judicial Court.

One of those questions asks whether additional prophylactic measures are appropriate to address future cases involving widespread prosecutorial misconduct. The BBA thinks the answer to that question is yes. In an amicus brief filed earlier this week, and drafted by Amicus Committee Co-Chairs David Siegel of New England Law | Boston and Elizabeth Ritvo of Brown Rudnick LLP, we explain why the question deserves an affirmative response and offer the court a suggestion for one such prophylactic measure that would help to prevent the types of misconduct and improve the responses to the discovery of this conduct, mitigating the harms of any future scandals like those that have plagued the Massachusetts criminal justice system in recent years.

As Ritvo notes in the BBA’s statement on the brief:

The misconduct here undermines the integrity of the entire justice system, and now is the time to move beyond the ”few bad apples” narrative and establish systemic reforms that will help to formalize and improve the much-needed mechanisms to prevent and respond to these crises.

Keep reading to learn more about the CPCS v. AG case, the BBA’s history on these issues, and the content of our amicus brief.

Case Background

In September 2017, the American Civil Liberties Union of Massachusetts (ACLUM), the Committee for Public Counsel Services (CPCS) and the law firm Fick and Marx LLP, filed a petition arguing that the misconduct at issue in the case  warrants dismissal with prejudice for all “Farak Defendants”  , after it was found that she had stolen and tampered with drug samples and tested evidence while under the influence of drugs for nine years.

Unlike the Annie Dookhan scandal from the Hinton Lab that was at issue in the Bridgeman cases, dismissal was also warranted based on a second type of egregious government misconduct:  the failure of two lawyers in the Massachusetts Attorney General’s Office  to disclose all relevant, exculpatory evidence in the matter, which delayed and impeded the determination of the full scope of this misconduct, and the misleading of the defense attorneys and the Superior Court judge handling the consolidated lab cases. The principal issue in the consolidated cases by defendants seeking post-conviction relief (withdrawal of their guilty pleas, dismissal or new trials) was the period of Farak’s misconduct.

In December 2016, the Superior Court scheduled a hearing on the timing and scope of Farak’s misconduct and the reasons for the AGO’s failure to disclose exculpatory evidence. Superior Court Justice Thomas Carey found:

Despite the drug lab defendants’ diligent discovery efforts, [Assistant Attorneys General] Kaczmarek and Foster managed to withhold the mental health worksheets through deception. They tampered with the fair administration of justice by deceiving [the court] and engaging in a pattern calculated to interfere with the court’s ability impartially to adjust discovery in the drug lab cases and to learn the scope of Farak’s misconduct.

Since that decision, the 11 District Attorney’s (DA) offices have dismissed thousands of cases, and earlier this month Justice Frank Gaziano finalized these dismissals and issued an order vacating an estimated 11,000 convictions in 7,7000 criminal cases. In January, Justice Gaziano reserved and reported questions for full bench review, including the third question, which became the focus of the BBA brief:

whether the record in this case supports the court’s adoption of additional prophylactic measures to address future cases involving widespread prosecutorial misconduct, and whether the court would adopt any such measures in this case.

Petitioners ACLU and CPCS briefed the questions posed in the Reservation and Report in March, and in relation to the third question argued that the court should issue “standing orders on the responsible handling of government misconduct and exculpatory evidence” and “order monetary sanctions responsive to the AGO’s misconduct.” Specifically, the Petitioners ask for three standing orders:

1. Standing Bridgeman Order: This first order would formalize the protocols the created in the Bridgeman litigation, requiring, among other things, the prosecutor’s office to supply a list of relevant cases to the Chief Justice of the Trial Court and CPCS when a prosecutor knows or has reason to believe that misconduct occurred in one or more cases.
2. Standing Cotto Order: This proposed order would govern criminal cases that a government attorney may have tainted, whether that discovery is made before or after a conviction and require the attorney, or the attorney’s agency, to notify the Chief Justice of the Trial Court, CPCS, and the Bar Counsel’s office of the Board of Bar Overseers within thirty days when that attorney knows that the misconduct may have affected a criminal case.
3. Standing Brady Order: The final standing order proposed calls upon the Court to require trial courts to issue an order governing prosecutors’ disclosure obligations in Brady v. Maryland, 373 U.S. 83 (1963) and Massachusetts law, setting disclosure deadlines, emphasizing the duty to disclose exculpatory evidence extends throughout the course of a case, and specifying sanctions for violating it.

In their recently filed reply brief, the AGO agrees that standing orders are an appropriate prophylactic measure in response to the third question, and even supports all three standing orders outlined in the Petitioner’s brief, but also posits that monetary sanctions are not warranted. The brief filed by the DAs also notes that monetary sanctions are not appropriate but departs from the AGO and argues that the proposed prophylactic measures are “not necessary, practicable, or appropriate where long-standing rules and clear guidance from this court provide the best measures to address any future occurrence of misconduct, should it arise.”

The parties will present their arguments to the full bench on May 8.

BBA Background

The BBA has a long history of advocating for reforms in line with our interests as articulated in the brief here: “to facilitate access to justice for all defendants in criminal cases and to ensure the timely, fair and efficient administration of justice by reducing the risk of widespread prosecutorial misconduct.”

Nearly a decade ago, the BBA Task Force to Prevent Wrongful Convictions produced the Report: “Getting it Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts.” That Report highlighted the Association’s continued interest in the development of measures that would improve the practices of prosecutors and defense attorneys and prevent wrongful convictions. Among other things, the Report specifically points to “police and prosecution failures to produce required discovery” and “inadequate defense counsel performance” as two of the most common sources of wrongful convictions.

Continuing these efforts, the BBA, in 2012, felt inspired and compelled to respond to the scandal unfolding at the Hinton Drug Lab, and established the Drug Lab Crisis Task Force to review the facts, identify lessons learned, and propose recommendations. The Task Force Report, released in 2014, made a number of recommendations, including an independent auditing function, with the authority to conduct full and complete investigations, where all forensic services employees could confidentially report concerns about the internal operations or coworkers’ performance.

Two years later, the BBA submitted an amicus brief in the Bridgeman litigation arguing for dismissal of all those cases where Dookhan served as the primary or secondary chemist and urging the Court to exercise its powers of general superintendence to “mitigate the impact of the Commonwealth’s ‘egregious’ misconduct and…reaffirm the commitment of the judicial system to due process and fairness.” You can read more about that brief here.

The Brief

The BBA brief in this case highlights this past work and our continued interests in these areas as it calls for the court to adopt forward-looking measures. As put by BBA President Mark Smith of Laredo & Smith LLP:

Access to justice is at the core of the BBA’s mission, and we are proud to continue our advocacy on matters relating to widespread misconduct and wrongful convictions. We hope the Court will consider the measures proposed in the brief and take steps to ensure the Commonwealth has a procedure in place that will ensure access to a fair and efficient justice system.

The BBA brief echoes support for the position of the Petitioners and Respondent Attorney General mentioned above that the Court issue standing orders on the Bridgeman protocol, the disclosure obligations for lawyer misconduct that may have tainted a case, and the disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963) and Massachusetts law. However, it additionally suggest that the Court adopt a standing order that establishes a mandatory obligation to report for every prosecutor who, at any point, gains knowledge of, or credible information of, misconduct by any lawyer or non-lawyer on the prosecution team.

The brief notes that mandatory reporting is important to promoting accountability and mitigating the scope of the damage caused by any misconduct. The creation of a record also allows for patterns and repeated misconduct to be revealed and addressed sooner rather than later. Specifically, the brief argues that such a standing order could require:

• Any intentional misconduct by any non-lawyer agent of the prosecution team be promptly reported to the supervisory prosecutor.
• Any repeated intentional misconduct by non-lawyers, and any lawyer misconduct, should be made to a statewide power of sufficient authority (like the Chief Justice of the Trial Court or a specially designated judicial officer, in addition to the supervisory prosecutor).

While any lawyer misconduct or repeated intentional non-lawyer misconduct should be made known to a judge in the case, the reporting requirements would also apply to those matters where a case does not yet exist. Finally, the brief makes clear that any reports, whether to a supervisory prosecutor or a central judicial authority or judicial officer, should be made in writing.

The Brief further addresses just why mandatory reporting is so necessary in matters like those at issue in this case, first illuminating that such reporting is “a consistent feature of the modern administrative state” (quoting In Re Grand Jury Investigation, 437 Mass. 240, 355 (2002)). Mandatory reporting is used when the interests at stake are high, and identifying misconduct like that displayed here is a critical matter of ensuring due process and the integrity of the criminal justice system. In addition, mandatory reporting is needed when the consequences of non-discovery could be sweeping, and here, it may impact thousands of cases and involve, as described by Judge Carey, “a problem of systemic magnitude.” Finally, it’s especially essential when the observer may not be in an independent or neutral position from which to determine the extent of the activity.

The brief additionally hones in on the standards that should trigger the obligation to report, first noting that: the “knowledge of” or “credible information of” standard is familiar to the court through other rules, including SJC Rule 3:09 of the Massachusetts Code of Judicial Conduct and SJC Rule 3:07 of the Massachusetts Rules of Professional Conduct. In addition, the brief notes that it is essential the obligation operates with minimum amount of discretion, in line with MRPC 3.8, and without regard to materiality.

Notably, the brief makes clear that the reporting obligation should apply regardless of whether a specific case is identified or pending, as it is equally important that such misconduct is addressed before a conviction or even a charge is brought. This is the exact point where system-wide catastrophes like those in the Amherst and Hinton Labs, can be prevented without denying and delaying justice for thousands of Massachusetts residents.

And finally, the brief clarifies that instances of repeated intentional misconduct by a non-lawyer agent, or any lawyer, should be reported to a central judicial authority or judicial officer. Each of the recent examples of systemic misconduct resulted in the designation of one or more judges to handle the similar questions arising in multiple cases, and having one single authority designated in advance to receive the report would simplify and clarify this process. In addition, it would more quickly move it outside the wholly adversarial context, if a particular case already exists, into a framework overseen by a neutral body.

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As summarized by Professor Siegel in the statement on the brief:

We have seen in recent years the dire consequences of misconduct that goes unreported for too long. The fair administration of justice requires prompt discovery and response, and a standing order that establishes an obligation for disclosure would help to minimize the risk of the sweeping injustices thousands endured following the Amherst and Hinton Drug Lab scandals.

A massive thanks goes out to our Amicus Committee for making the brief possible, and especially to David Siegel and Elizabeth Ritvo for their drafting efforts. Continue to watch this space for more updates as the case proceeds.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Guest Post: Jack Caplan is the current Lawyer Referral Service Co-op Intern at the BBA. Jack is a sophomore at Northeastern University studying Politics, Philosophy, and Economics.

Last Thursday, April 19^th, on the heels of the 50^th anniversary of the assassination of Dr. Martin Luther King, Jr., some of Boston’s most prominent champions of civil rights gathered at the BBA for an evening which simultaneously looked back on where the country has been, and looked forward to where it can go.

The all-star lineup consisted of:

Rahsaan Hall, the current Director of the ACLU’s Racial Justice Program, was moderator for the evening.  He also manages the “What a Difference a DA Makes” campaign, which seeks to educate the public about how much positive influence a District Attorney can have on their community, lessons he learned in part during his time as an Assistant District Attorney in Suffolk County.

The Honorable Geraldine Hines (Ret.) kicked off her career spearheading the creation of a Department of Afro-American Studies at the University of Wisconsin-Madison, a movement which triggered the National Guard to be deployed at the time, but which later earned her the Distinguished Alumni Award.  After several decades doing civil rights litigation, she was appointed Associate Justice of the Superior Court, and in 2014 became the first black woman to sit on the Supreme Judicial Court.

Barbara Arnwine, the longtime Executive Director of the Lawyers’ Committee for Civil Rights Under Law, has led a long and robust career fighting for civil rights in the US and abroad.  Focusing much of her work on voting rights, Arnwine helped to create the 2011 “Map of Shame” which shows disenfranchisement efforts across the country.

Segun Idowu has spent most of his life in Boston. A graduate of Boston Latin, Segun went to Morehouse College before returning back home.  In 2014 Segun co-founded the Boston Police Camera Action Team and played a key role in establishing the police body camera system that is expected to be made permanent by the Boston Police Department.  Additionally, Segun is on the leadership team for the Boston NAACP, and is currently running to be the State Representative for the Commonwealth’s 14^th District, covering Hyde Park, Roslindale, and West Roxbury.

Iván Espinoza-Madrigal has worked for a number of civil rights-oriented organizations including Lambda Legal and MALDEF, and is currently the Executive Director of the Lawyers’ Committee for Civil Rights and Economic Justice, an organization leading the charge on a variety of civil rights matters across the Boston area.  He’s been honored as one of the city’s 100 most Influential People of Color, and one of the Best LGBTQ Lawyers under 40, among many other accolades. Last year, he was honored at the 8^th Annual BBA Beacon Award.

Panelists kicked things off with a reflection on the impact that Dr. King had on them.  For some, like Segun, it was personal.  He told a packed room how his grandfather was a good friend of King’s and passed down many of his advocacy tactics and strategies, which would eventually become a roadmap for Segun’s police camera advocacy.  For Arnwine, it was all about making sure that the legacy of Dr. King is a living legacy – one that we continue through persistent advocacy for change.  Having lived all over the country, Arnwine discussed how she’s been bringing that fight across multiple states and regions, and how she’s seen that the so-called “problems of the South” aren’t just problems in the South, but up North as well.

Reflecting next on how the racial landscape has evolved in Boston over their lives, panelists provided broad reflections about how the city has changed.  Justice Hines noted how although the daily outright violence that was seen just a few decades ago, such as during the anti-desegregation bussing riots of the mid-‘70s, has largely disappeared, racial injustice has manifested itself in other ways.  Chief among them has been how the city has gone about new development. Multiple neighborhoods have seen their communities completely altered by the introduction of new businesses and housing developments which are pricier than what the neighborhood is more used to.  Consequently, many long-time residents are slowly priced-out of the neighborhoods that they’ve built, and called home for decades.  Panelists had a vibrant discussion on the injustice inherent in this practice, and the potential for some high-impact litigation in coming years.

Dr. King’s legacy has had a deep impact on the efforts of each panelist – both personally and professionally.  Justice Hines spoke bluntly about how although no one can do everything, everyone should do something – participate in demonstrations, speak out against injustice, and make sure to vote whenever possible, since we all carry a personal responsibility to better society.  And, as attorneys specifically, Executive Director Espinoza-Madrigal emphasized the professional responsibility to carry these fights from the streets to the courts.  It’s crucial that lawyers don’t try and pick “winners” and pit marginalized groups against one another in the fight for equal recognition and access to resources, but rather continue to add seats to an ever-growing table.

The best way to honor the unparalleled legacy of Martin Luther King, Jr., our distinguished panel seemed to agree, is to make sure that his legacy doesn’t exist only in abstraction, but rather in a way that keeps society moving forward along a path that is completely and unequivocally towards justice.