Massachusetts Gaming Law: Looking to the Future

by Dimitri P. Racklin

Legal Analysis

On November 22, 2011, Governor Deval Patrick signed into law “An Act Establishing Expanded Gaming in the Commonwealth” (the “Act”), codified primarily at M.G.L. ch. 23K §§1 ff. (available here).  With the Act’s authorization of commercial casino gambling and creation of a regulatory framework for the casino industry in the Commonwealth, Massachusetts has joined the growing list of states which have legalized commercial (as contrasted with Indian tribal) casinos in recent years.[1]

The Act reflects the legislature’s decision to establish a limited-franchise gaming industry, opting for a limited number of licensed casinos guaranteed regional exclusivity rather than open-ended authorization of unlimited participation – and competition – in the industry (subject only to licensing requirements focused on ensuring probity, suitability and financial stability).  The choice likely means that the development of the Massachusetts gaming industry will take place in two related but in some ways distinct phases.  The initial phase will involve the initial award of up to four casino/racino licenses[2] and the various activities associated with start-up (approval/permitting, construction, fit-out and launch).  “Initial” should not be confused with “short” in this context, however; recent remarks by Stephen Crosby, the Commission’s first chairman, reportedly suggest a period of three to four years before the casinos open for business.[3]  Once the initial phase is completed, the industry (and the Massachusetts gaming commission (the “Commission”) regulating it) will likely settle into the second phase, focused on day-to-day operational and regulatory tasks and an occasional potential transaction such as sale of a licensee – until the initially granted licenses expire[4] and renewal applications bring back, at least in part, the more concentrated activity of the initial phase.

The gaming industry is, of course, a heavily regulated one in all relevant U.S. jurisdictions, and Massachusetts will be no exception.  Overseeing the new Massachusetts gaming industry will be the new five-member Commission which is granted wide regulatory, licensure and enforcement powers under the Act.  Since one of the Commission’s primary regulatory tasks will be to ensure the financial stability, integrity and suitability of gaming industry participants, see M.G.L. ch. 23K §§1(2), 1(3), 1(9)(iii), 12(a)(1)-(2), the Commission will have within it an investigations and enforcement bureau (the “Bureau”) as the primary enforcement agent for the Commonwealth’s gaming regulatory regime.  M.G.L. ch. 23K §6(a).  The Bureau will work together with the gaming enforcement unit of the Massachusetts State Police, the division of gaming enforcement in the department of the Attorney General and the gaming liquor enforcement unit of the Alcoholic Beverages Control Commission.  See M.G.L. ch. 23K §§6(c), 6(d), 6(g).  The Act designates the Bureau as a law enforcement agency, M.G.L. ch. 23K §6(b), and expressly grants it the authority to exchange information with other gaming authorities and law enforcement agencies, both domestic and international.  M.G.L. ch. 23K §6(e).

Perhaps not surprisingly given its long gestation,[5] the Act is much more than simply enabling legislation, and is quite detailed – indeed, prescriptive – in a number of respects.  Not only are the gaming tax rates and minimum capital investment amounts and licensing fees set by the Act,[6] but numerous topics of arguably lesser import are also spelled out in detail.[7]  Nonetheless, many issues which will doubtless be of interest to industry participants remain to be addressed by regulation and Commission practice.  In fact, M.G.L. ch. 23K §5(a) is devoted entirely to a list of matters which the Commission is directed to address by regulation, and some of the Commission’s powers enumerated in M.G.L. ch. 23K §4 could effectively constitute such matters as well.[8]  Even from the face of the Act alone, the Commission is unlikely to run out of things to do.

As the gaming regulatory regime develops, below are a few topics for gaming business clients and their lawyers to consider.

  • In the initial phase, the Commission is tasked with determining whether “the purchase or lease price of the land where the gaming establishment will be located or any infrastructure designed to support the site” will be included in the minimum capital investment requirement for a Category 1 license.  M.G.L. ch. 23K §10(a).  Obviously, the Commission’s decision on the topic could have a material impact on the economics of an applicant’s license proposal.[9]
  • The Act requires an applicant for a gaming license and “any person required by the commission to be qualified for licensure” to “establish its individual qualifications for licensure to the commission by clear and convincing evidence.”  M.G.L. ch. 23K §13(a).  Qualification for licensure is also required under the Act for “anyone with a financial interest in a gaming establishment, or with a financial interest in the business of the gaming licensee or applicant for a gaming license or who is a close associate of a gaming licensee or an applicant for a gaming license,” M.G.L. ch. 23K §14(a), as well as “any person involved in the financing of a gaming establishment or an applicant’s proposed gaming establishment.”  M.G.L. ch. 23K §14(e).  Clearly, terms such as “financial interest,” “involved in the financing” and “close associate” (and the related term “significant influence” comprising part of the definition of “close associate,” M.G.L. ch. 23K §2), are deliberately broad and designed to permit the Commission the greatest latitude in requiring industry participants to be qualified for licensure.

The gaming industry licensure qualification process is often seen as quite burdensome, however.  For example, the Multi Jurisdictional Personal History Disclosure Form promulgated by the International Association of Gaming Regulators (“IAGR”)[10] is 66 pages long and requires disclosure of, among many other things, all places of residence in the last 15 years and all employment in the last 20 years (or since the age of 18, if less), including any employment-related “infractions” in the last 10 years.  Nonetheless, industry participants much prefer use of that form across multiple jurisdictions to having a separate form for each jurisdiction, and so will doubtless advocate for adoption of the IAGR form by the Commission.  Experience from other jurisdictions indicates that cost (borne by the applicant) of background investigations relating to gaming licensing applications conducted by the gaming regulatory authorities (i.e., the Bureau in the Commonwealth) can reach hundreds of thousands of dollars even in only moderately complicated cases.  Therefore, it will be interesting to see whether regulations and Commission practice as it develops over time will offer any further guidance as to whether particular financing mechanisms (such as conventional debt financings) or arguably de minimis amounts will receive any systematic relief from the qualification requirements.

Given the nature of the licensure qualification process, it will come as no surprise that many traditional commercial loan market participants – commercial banks, private equity firms, hedge funds – have little experience with gaming licensing requirements and are typically reluctant to subject themselves to the qualification process.  Yet, the wording of the Act could, if read literally, subject even Main Street banks and other institutional providers of the plainest of commercial loans to the gaming licensing regime.  These days, of course, many conventional loan arrangements come with equity features, such as warrant coverage or equity “kickers,” which could be even more troublesome for the Commission (or the Bureau) interested in vetting everyone with a “financial interest.”  Convertible debt in material amounts will be even more easily viewed as an equity equivalent and therefore require qualification for licensure.  As a result, therefore, the parameters of these requirements as they are established by the Commission over time and applied to debt capital providers will likely be of interest to many practitioners and their clients.

In the equity realm, it will be interesting to see whether the Commission finds it appropriate to give any regulatory relief from the general licensure requirements to employee stock options, restricted stock or similar incentive equity instruments held in immaterial amounts by employees who are not “key gaming employees” subject to licensure in any event, see M.G.L. ch. 23K §2 (definition of “Key gaming employee”).  Arguably, such instruments in the hands of rank-and-file employees not directly involved in gaming operations could be natural candidates for an express (if carefully limited) regulatory exemption from the qualification requirements.

  • Another topic of particular interest to transactional lawyers will be whether the Commission will permit any pre-clearance procedures for transactions involving change of control of a business subject to licensure or any related assets.  See M.G.L. ch. 23K §21(b) (prohibiting such transfers without Commission approval, subject to a specific grant of authority to the Commission to create exemptions by regulation).  Such a business does not have to be a multi-billion dollar casino – it could be a gaming equipment manufacturer, a security system installer or software company, or another vendor whose products or services “directly relate to gaming,” see M.G.L. ch. 23K §2 (definition of “Gaming vendor”).  Even much more mundane casino-related businesses (e.g., a laundry service provider to a casino-related hotel) could be subject to registration or, depending on volume of business, even full-fledged licensing requirements.  See M.G.L. ch. 23K §31(d).  The Act, however, requires that, with respect to any contract for sale of, or grant of a security interest in, a gaming-related business “under circumstances which require that the transferee obtain licensure under [the Act]…, the contract shall not specify a closing or settlement date which is earlier than 121 days after the submission of a completed application for licensure or qualification, which application shall include a fully executed and approved trust agreement.”  M.G.L. ch. 23K §23(c).  Obviously, a very considerable amount of uncertainty and delay could be removed if the prospective buyer of a gaming-related enterprise could be pre-cleared by the Commission prior to the closing of the acquisition.  Availability of a pre-clearance process could be very attractive to the industry despite the not insignificant cost of the Bureau’s investigation that the prospective transferee would likely have to bear in advance of its purchase of the gaming-related business in question.

The above topics represent only a few examples of areas where future Commission action will likely be of great interest to industry participants and their counsel.  Any number of others easily merit attention.  For example, a number of Commission decisions are stated by the Act not to be subject to any further review,[11] raising questions about the extent to which a Commission decision may be challenged on the ground that it is arbitrary or capricious, or on any other grounds.  Answers to this and many other questions are likely to be forthcoming only in the fullness of time.  It is already clear, however, that the development of the gaming industry and its regulation and oversight in the Commonwealth over the years to come should provide many opportunities and challenges for the practitioners and clients alike – and for the regulators as well.

[1] Prior to 1989, casino gaming was permitted only in Nevada (since 1931) and New Jersey (since 1976).  Iowa and South Dakota each legalized casino gaming in 1989, and since then another 19 states joined the list in one form or another, with Massachusetts being the most recent addition as of this writing.

[2] The Act authorizes establishment of three Category 1 casinos (one each in the Greater Boston area and in the southeastern and western regions of Massachusetts, with the southeastern Category 1 casino subject to some extent to the Commonwealth’s efforts to negotiate a compact with one or more Indian tribes seeking to operate casinos in the region), envisioned as full-fledged destination casino and entertainment complexes, and a single Category 2 “racino” featuring slot machines only (not table games) which could be established at a live or simulcast racing venue.

[3] See D. Ring, Massachusetts Gaming Commission chairman defends timetable for licensing casino resorts,, published at (April 25, 2012).

[4] The Act provides that Category 1 licenses will be granted for 15-year terms (presumably, from the date of issuance by the Commission, although the Act is less than specific on this point).  If it is granted, the single Category 2 license will be for a five-year term.

[5] Legislative debate on the issue of gaming in the Commonwealth dates back to 2002 if not earlier.  See, e.g., Dice or No Dice:  The Casino Debate in Massachusetts, University of Massachusetts Boston, College of Management, Financial Services Forum Spring 2011 Report (available at, at 4.

[6] At 25% (of gross gaming revenue), $500 million and $85 million for Category 1 licenses and 40% (plus a 9% Race Horse Development Fund assessment), $125 million and $25 million for the Category 2 license, respectively.  See M.G.L. ch. 23K §§10(a), 10(d), 11(a), 11(b), 55.  The Commission does retain discretion to impose higher capital investment requirements and licensing fees (but not tax rates).

[7] For example, the Commission’s findings on a given casino application must address, among other things, the applicant’s proposal for “procuring or generating on-site 10 per cent of its annual electricity consumption from renewable sources qualified by [the Commonwealth’s] department of energy resources…”  M.G.L. ch. 23K §18(8)(vi).

[8] See, e.g., M.G.L. ch. 23K §4(14) (granting the Commission the power to “determine a suitable debt-to-equity ratio for applicants for a gaming license”).

[9] See, e.g., Ring, supra n. 7 (reporting that “Ameristar [Casinos] paid $16 million for a 41-acre site… in Springfield” apparently intended for a planned casino).

[10] Available at

[11] See, e.g., M.G.L. ch. 23K §17(g) (“[a]pplicants have no legal right or privilege to a gaming license and shall not be entitled to any further review if denied by the commission”).

Child Pornography: The New Crack Cocaine?

by Michael J. Pelgro

Legal Analysis 

I.          Introduction

Possession of child pornography now makes up an increasing proportion of the crimes charged in federal district courts.[1]  Hardly a week goes by without a fresh news story concerning a person charged in federal court because his computer contained child pornography images.  As for all federal crimes, sentencing in child pornography cases is influenced by the United States Sentencing Guidelines (“Guidelines”).  The Guidelines were promulgated in November 1987 by the United States Sentencing Commission (“Commission”), a bipartisan agency established by Congress in the Sentencing Reform Act of 1984.  The Commission’s mandate was to construct, and revise annually, mandatory Guidelines encompassing all federal crimes, with a goal of ensuring certainty and fairness, and avoiding unwarranted disparities, in federal criminal sentencing decisions.  In 2005, the Supreme Court decided United States v. Booker, which rendered the Guidelines advisory.  United States v. Booker, 543 U.S. 220, 261-63 (2005).  No longer mandatory, but backed by the Commission’s study and expertise, the Guidelines continue to play a “central role” and provide “gravitational pull” in federal sentencing.[2]  The primary guideline for child pornography cases, §2G2.2, however, has been criticized as “an eccentric Guideline of highly unusual provenance which, unless carefully applied, can easily generate unreasonable results.”  United States v. Dorvee, 616 F.3d 174, 188 (2d Cir. 2010).  This guideline resulted from Congressional dictates, rather than the Commission’s traditional “empirical approach,” an unusual history that has generated widespread judicial and commentator disagreement with the sentencing ranges recommended by this guideline.

The controversy is reminiscent of the longstanding criticism of the 100:1 ratio that Congress used in determining minimum mandatory penalties in cocaine cases.  In the mid-1980s, fueled by the perception that crack cocaine was more addictive and more dangerous than powder cocaine, Congress directed that five-year and ten-year minimum mandatory prison sentences apply to quantities of crack cocaine 100 times less than powder cocaine.  The Commission followed the same proportionality in fashioning the crack cocaine guidelines, thus mandating lengthy federal prison sentences in cases involving small amounts of crack cocaine.  Judicial and commentator backlash against this 100:1 ratio caused the Commission to reassess the fairness of the penalties and the assumptions on which they were based, which in turn led Congress to abandon the 100:1 ratio in the Fair Sentencing Act of 2010, thus allowing the Commission to lower the crack cocaine guidelines.

Now, in a similar groundswell, an increasing number of federal judges are speaking out against the child pornography guideline and, in this post-Booker sentencing era, are refusing to follow its recommended imprisonment ranges.  This backlash is now causing the Commission to study the guideline and the assumptions on which it is based.  These developments suggest that Congressional action may be forthcoming.

II.        The History of the Child Pornography Sentencing Guideline

While the Supreme Court’s landmark Booker decision rendered the Guidelines advisory, the Court has made clear that they remain “the starting point and the initial benchmark” in the federal sentencing process and that they “deserve some weight in the sentencing calculus, as they are ‘the product of careful study based on extensive empirical evidence derived from the review of thousands of individual sentencing decisions.’”[3]  Much time and attention is still devoted in federal court to the proper calibration of the Guideline imprisonment ranges precisely because federal judges continue to give weight to them and often defer to the Commission’s historical expertise in fashioning recommended ranges of imprisonment.

The Commission’s usual empirical approach was not followed, however, in the development of the child pornography guidelines, which were substantively revised to increase penalties nine times in the 22 years following their promulgation in 1987.[4]  The Commission was not allowed to play its traditional institutional role in fashioning recommended imprisonment ranges for such offenses.  Rather, Congress took over the process, “prompting the Commission to respond to multiple public laws that created new child pornography offenses, increased criminal penalties, directly (and uniquely) amended the child pornography guidelines, and required the Commission to consider offender and offense characteristics for the child pornography guidelines.”  Id. at 54.  Courts and commentators have remarked on Congress’s unique exertion of its authority and influence in the development of the child pornography guidelines.  As one commentator put it, the child pornography guidelines were not “the product of an empirically demonstrated need for consistently tougher sentencing” but rather were “largely the consequence of numerous morality earmarks, slipped into larger bills over the last fifteen years, often without notice, debate, or study of any kind.”[5]  The result is a guideline — §2G2.2 — that recommends years of imprisonment for all child pornography defendants, no matter their “history and characteristics” or the “nature and circumstances of the offense.”  18 U.S.C. §3553(a)(1).

A.        The Amendments

When the Guidelines were promulgated in 1987, possession of child pornography was not a federal crime.  Section 2G2.2 encompassed the crimes of transport, distribution, and receipt of child pornography; it set the Base Offense Level (“BOL”) at 13.[6]  The BOL determines the proposed length of a sentence before consideration of any aggravating or mitigating factors.  In November 1990, Congress passed a statute which criminalized possession and directed the Commission to increase penalties for sexual crimes against children.[7]  Thus began a years-long process involving Commission study and proposals to achieve proportionality in punishment and Congressional rejection of the proposals in favor of increased punishment across the board.

In 1991, for example, the Commission proposed setting a lower BOL (10) for the similar crimes of receipt and possession of child pornography.  In response, Congress insisted that the crimes of receipt, transportation, and distribution remain in the same guideline and that the BOL for those crimes be increased.  It also directed the Commission to create a separate guideline for possession (§2G2.4) with a higher BOL (13) than that recommended by the Commission and with an enhancement for possession of 10 or more items.

A similar back-and-forth took place in 1995, when the House of Representatives passed a proposal to increase the BOL to 15 and to add a use-of-computer enhancement for possession offenses.  The amendment, passed over the Commission’s objection, did both.  This enhancement increases the imprisonment range in virtually every child pornography case now prosecuted in federal court.

In 2003, Congress passed the PROTECT Act, directly amending the Guidelines for the first time.  Insertion of the Feeney amendment into the popular Amber Alert bill dramatically changed the child pornography guidelines by creating 5-year minimum mandatory sentences for trafficking and receipt, raising the statutory maximum for possession from 5 to 10 years, and directly amending the possession guideline (§2G2.4) to add an escalating enhancement based on the number of images.[8]  Despite objection by the Commission and others, including a former United States Attorney, the PROTECT Act and the Feeney amendment (which was debated in Congress for just 20 minutes), became law in April 2003.

To remedy the ensuing confusion and harmonize sentences for receipt and possession offenses, the Commission proposed in 2004 consolidating the possession guideline (§2G2.4) with the transport, distribution, and receipt guideline (§2G2.2).  These amendments took effect in November 2004.  Now a single guideline — §2G2.2 — encompasses possession, receipt, and trafficking offenses.

III.       Judicial Reaction To The Child Pornography Guidelines

Courts have recognized that the Congressionally-manipulated guideline has resulted in unusually severe sentences in many child pornography cases. With the flexibility allowed by Booker, courts are giving little or no deference to the child pornography guidelines, concluding that they  do not reflect the Commission’s traditional empirical approach and do not further the sentencing objectives embodied in 18 U.S.C. §3553(a).  Federal judges are giving little or no deference to the child pornography guidelines, relying for support on judicial treatment of the crack cocaine guidelines.

In Kimbrough v. United States, a 2007 crack cocaine case, the Supreme Court reaffirmed Booker and held that a sentencing court has the discretionary authority to disagree with the policy embodied in a guideline if it determines that the guideline’s recommended imprisonment range is “greater than necessary to serve the objectives of sentencing.” Kimbrough v. United States, 552 U.S. 85, 91 (2007)(quoting 18 U.S.C. §3553(a)).  The Court observed that the Commission’s adoption of  the 100:1 crack/powder cocaine sentencing ratio in the drug guideline was based not on empirical research, but on the minimum mandatory sentences dictated by Congress.  Therefore, the Court ruled, a sentencing court may impose a sentence below the guidelines.  Similarly, in Spears v. United States, the Court explained in 2009 that a court may sentence below the crack-cocaine guidelines based solely on a policy disagreement with the guidelines even where a defendant presents no special mitigating circumstances warranting a below-guideline sentence.  Spears v. United States, 555 U.S. 261, 263-64 (2009)(per curiam).

Kimbrough and Spears paved the way for sentencing courts to depart from the guidelines in all cases, providing flexibility to sentence on a more individualized basis.   Courts have, as a result, begun to reject or give little deference to §2G2.2.  In United States v. Dorvee, relying on the unique history of Congressional involvement in amending the child pornography guidelines, the Second Circuit affirmed a below-guideline child pornography sentence, observing that §2G2.2 “is fundamentally different from most and that, unless applied with great care, can lead to unreasonable sentences that are inconsistent with what §3553 requires.”  Dorvee, 616 F.3d at 184.[9]  In United States v. Grober, the Third Circuit affirmed on Kimbrough  grounds a variant child pornography sentence based on the view that §2G2.2 “leads to a sentence that is too severe in a downloading case.”  United States v. Grober, 624 F.3d 592, 596 (3rd Cir. 2010)(quoting United States v. Grober, 595 F.Supp.2d 382, 394 (D. N.J. 2008)).[10]  After reviewing §2G2.2’s history, the Court concluded that “the Commission probably did the best it could under difficult circumstances but to say that the final product is the result of Commission data, study, and experience simply ignores the facts.”  Grober, 624 F.3d at 608 (quoting United States v. Diaz, 720 F.Supp.2d 1039, 1045 (E.D. Wis. 2010)).[11]  While the First Circuit has yet to issue a similar type of opinion, it has observed that Kimbrough  applies to the child pornography guidelines, which  are “harsher than necessary.”  United States v. Stone, 575 F.3d 83, 89-94 (1st Cir. 2009).[12]

Many district courts across the country have similarly opined, expressing variations on the view that §2G2.2 is “seriously flawed and accordingly entitled to little respect,” with federal judges declaring that §2G2.2 “is just as flawed as the crack guideline” or that a sentencing judge is “entitled to reject it entirely.”[13]  Federal district judges in Massachusetts have not yet issued similar written opinions but have imposed below-guideline sentences in child pornography cases, expressing their disagreement with the severity of §2G2.2.[14]    The latest Commission statistics on federal sentencing decisions reflect the reality that federal judges across the country are increasingly using their Kimbrough authority to impose below-guideline sentences in child pornography cases.  2011 Sourcebook of Federal Sentencing Statistics (available at ) (last checked May 25, 2012).

IV.       Conclusion

Like the crack cocaine guidelines, the child pornography guidelines have generated negative reaction based on the unique level of Congressional involvement in their development. In response, after producing a comprehensive report documenting the history of these guidelines, the Commission has made the study of this serious crime, and the appropriate punishment of it,  one of its top priorities in 2012.  It is ultimately up to Congress, however, to address the perceived disproportionality of these guidelines, as it eventually did with crack cocaine.  Given the strong emotions and revulsion among the public about this crime, it is unclear at this time whether Congress will do so.  In the meantime, the controversy rages on in federal courtrooms here in Massachusetts and across the country.

Michael J. Pelgro is a Partner at Perry, Krumsiek & Jack, LLP in Boston, where he specializes in criminal defense, internal investigations, and civil litigation.  He spent several years as a state and federal prosecutor and was Chief of the Drug Unit at the U.S. Attorney’s Office in Boston.

[1] U.S. Sentencing Commission, Transcript of Public Hearing on Federal Child Pornography Crimes at 6 (Feb. 15, 2012)(Introductory Statement of The Honorable Patti B. Saris, Chair) (available at ) (last visited May 25, 2012).

[2] United States Sentencing Commission, Prepared Testimony of Judge Patti B. Saris, Chair, United States Sentencing Commission, Before the Subcommittee on Crime, Terrorism, and Homeland Security, United States House of Representatives at 1 (Oct. 12, 2011) (available at (last visited May 25, 2012).

[3] Gall v. United States, 552 U.S. 38, 49-50 (2007); Rita v. United States, 551 U.S. 338, 349-50 (2007); United States v. Martin, 520 F.3d 87, 90 (1st Cir. 2008)(quoting Gall, 552 U.S. at 46)).

[4] United States Sentencing Commission, Report on the History of the Child Pornography Guidelines at 54 (Oct. 2009) (available at[1].pdf) (last visited May 16, 2012) (hereinafter referred to as “Commission Report”).

[5] T. Stabenow, Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines at 3 (2009)(available at  ) (last visited May 25, 2012) (hereinafter referred to as “Stabenow Article”).

[6] Commission Report at 10 and fn. 45; Stabenow Article at 3-4.

[7] Commission Report at 17; Stabenow Article at 4.

[8] Commission Report at 38-39; Stabenow Article at 18.

[9] See also United States v. Twitty, 612 F.3d 128, 131-32 (2d Cir. 2010)(vacating sentence on plain-error review where district court mistakenly believed that it could not consider a broad, policy-based challenge to the child pornography guidelines); United States v. Dattilio, 2011 WL 4485165 at *6 (6th Cir. 2011)(holding that a district court disagreeing with the child-pornography GSR for policy reasons may reject that GSR based on that disagreement); Henderson, 649 F.3d at 963 (holding that, “similar to the crack cocaine Guidelines, district courts may vary from the child pornography Guidelines, §2G2.2, based on policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a particular case.”).  See generally M. Hamilton, The Efficacy Of Severe Child Pornography Sentencing: Empirical Validity Or Political Rhetoric, 22 Stan. L. & Pol’y Rev. 545, 559-73 (2011)(collecting and discussing cases); Note, Congressional Manipulation Of The Sentencing Guideline For Child Pornography Possession: An Argument For Or Against Deference, 60 Duke L.J. 1015, 1032-35 (Jan. 2011)(collecting cases).

[10] The Court noted that a Sentencing Commission survey “found widespread dissatisfaction with §2G2.2” in that 70% of responding judges who sentenced defendants after Kimbrough and Gall  “reported that the Guidelines range for possession was too high.”  Id. at 606-07.

[11] See also United States v. Apodaca, 641 F.3d 1077, 1082-83 (9th Cir. 2011) (observing that several circuit courts “have criticized the Guidelines-recommended sentence for possession-only offenders … as being unduly severe” and that “an increasing number of district courts have refused to follow the Guidelines and have departed downward when sentencing possession-only defendants”).

[12] In affirming the sentence in a transportation of child pornography case, the Court added a “coda” that “[w]ere we collectively sitting as the district court, we would have used our Kimbough power to impose a lower sentence.”  Id. at 97.

[13] United States v. Donaghy, 2010 U.S. Dist. LEXIS 77007 at *6-7 (E.D. Wis. 2010)(collecting cases);  Diaz, 720 F.Supp.2d at 1041-42 (collecting cases); Phinney, 599 F.Supp.2d at 1040); United States v. Beiermann, 599 F.Supp.2d 1087, 1104 (N.D. Iowa 2009).  See also United States v. Cameron, 2011 WL 890502 at *6 (D. Me. 2011)(“This Court joins other courts which have expressed unease with §2G2.2 and the escalating impact of its enhancements.”); United States v. Zapata, 2011 WL 4435684 at *3 (N.D. Ind. 2011)(“[J]udges across the country have declined to impose sentences within the range recommended by Guideline §2G2.2.”); Gordon v. United States, 2011 U.S. Dist. LEXIS 72592 at *7, 10-11 (S.D. N.Y. 2011)(granting §2255 petition to vacate child pornography sentence on the ground that the court committed a fundamental defect resulting in a miscarriage of justice in assuming that more expertise underlay §2G2.2 than was the fact).

[14] See, e.g., United States v. Paul Proulx, Crim. No. 11-10274-JLT (Court rejected GSR of 51-63 months’ imprisonment in favor of sentence of 5 years’ probation with home detention in possession case); United States v. Shalin Bhavsar, Crim. No. 10-40018-FDS (Court rejected GSR of 41-51 months’ imprisonment in favor of sentence of 3 months’ imprisonment in possession case based, in part, on Congress’ “unique” involvement in the development of the guideline); United States v. Lawrence Follett, Crim. No. 10-10316-GAO (Court rejected GSR of 51-63 months’ imprisonment in favor of sentence of 18 months’ imprisonment in possession case based, in part, on view that a sentence within the GSR would be greater than necessary to accomplish the goals of §3553(a)); United States v. Simeon Stefanidakis, Crim. No. 10-10174-WGY (Court rejected GSR of 151-188 months’ imprisonment in favor of sentence of 84 months’ imprisonment in transportation case); United States v. Johnny Pires, Crim. No. 08-10063-RWZ (Court rejected GSR of 135-168 months’ imprisonment in favor of minimum mandatory sentence of 60 months’ imprisonment in receipt case based, in part, on belief that §2G2.2 is “arbitrary and unreasonable”); United States v. Tyler Helbig, Crim. No. 08-30052-MAP(Court rejected GSR of 30-37 months’ imprisonment in favor of sentence of 5 years’ probation in possession case).

A New Tool for Determining Factual Innocence: Massachusetts’ Post-Conviction Access to Forensic and Scientific Analysis

by David M. Siegel and Gregory I. Massing

Legal Analysis

Angel Hernandez spent thirteen years in Massachusetts prisons for a rape he did not commit.  He spent a decade of that time seeking DNA testing of evidence he was told was lost or unavailable, or was not subject to discovery through the procedure he was using, or that he had no right to test, or that he had waived the right to test.[1]  He ultimately obtained access to the evidence, and DNA testing fully exonerated him.  The ability of a wrongfully convicted criminal defendant to access evidence to prove it, and the obligation of the Commonwealth to keep that evidence, may seem utterly common sense – but they are now the law of the Commonwealth too.  On February 17, 2012, Governor Patrick signed the Post-Conviction Access to Forensic and Scientific Analysis Act, 2012 Mass. Acts, c. 38, which provides a statutory right for wrongfully convicted defendants to obtain access scientific and forensic analysis of evidence in their cases.  The Act, which becomes effective May 17, 2012, creates a comprehensive framework by which criminal defendants who have been found guilty may gain access to evidence and testing to support a claim that they are factually innocent.  The Act also requires for the first time in Massachusetts state-wide retention and preservation of evidence in criminal cases and provides for regulations in this area.  Although virtually every other state already provided this type of access, testing, and retention, the Act is among the most comprehensive in the country.  The saga of Angel Hernandez should not have to be repeated.

I. Background – the 2008-2009 BBA Task Force on Wrongful Convictions

In December 2009, a Boston Bar Association Task Force to Prevent Wrongful Convictions, composed of twenty-two members drawn from state and local police, prosecutors, public defenders, defense lawyers, forensic scientists and the judiciary released Getting it Right: Improving the Accuracy and Reliability of the Criminal Justice System in MassachusettsAmong the Task Force’s specific recommendations was the following: “The legislature should enact and the Governor should sign into law a statute providing for post-conviction access to and testing of forensic evidence and biological material by defendants who claim factual innocence and for post-conviction retention of biological material.” Id. at 7. The report included a proposed bill as an appendix.

Bills providing for post-conviction forensic testing had been filed in the Massachusetts legislature almost every session following the 1999 Report of the U.S. Attorney General’s National Commission on the Future of DNA Evidence, but had languished in committee.  The Task Force’s recommended bill addressed what its members believed had prevented the prior bills’ passage: it provided a simpler, more streamlined procedure that did not attach the outcome of the testing to any legal effect on the underlying conviction.  Instead, it allowed only for access and testing.  The weight and significance to be attached to the results of the testing would be determined in separate proceedings, alleviating the need for the parties to argue about hypothetical results.

II. Eligibility and Motion

A.       Who May Seek Access to Scientific and Forensic Analysis

Anyone convicted of a crime or adjudicated a delinquent in a Massachusetts court may seek access to analysis, § 2(1), whether the conviction or adjudication was by trial, guilty plea or plea of nolo contendere, § 1 (definition of “conviction”), so long as the person is incarcerated in a prison or house of correction, on parole or probation, or has his liberty otherwise restrained due to such conviction, § 2(2), and he asserts that he is factually innocent of the offense. § 2(3).  (Citations refer to sections of chapter 278A of the Massachusetts General Laws, added by the Act.)  Arguably eligibility to file a motion under chapter 278A would also extend to those whose liberty is restricted by being required to register as a sex offender.  See Doe v. Sex Offender Registry Bd., 447 Mass.768, 775 (2006) (“In the context of sex offender registration, an offender’s liberty and privacy interests are constitutionally protected, and deprivation of these interests generally requires procedural due process.”).  The right afforded by the Act to seek analysis may not be waived under any conditions, whether in a plea agreement, sentencing, appeal or any correctional status, § 15, but the person seeking access and the Commonwealth are free to agree on other procedures. § 2.

B. How Do Persons Seek Access to Scientific and Forensic Analysis?

A person seeks analysis by filing a motion, in the trial court of the original conviction, with the same case name and docket number as the conviction, § 3(a), a copy of which must also be served on the prosecutor. § 4(a).  The Act does not specify what types of forensic or scientific analysis may be available, except that the requested analysis must produce evidence that is admissible in courts of the Commonwealth. § 3(b)(2).  It is not limited, for example, toDNA testing.

1. Requirements for Motion for Access to Analysis

Requirements for a motion for access to analysis are in Section 3 of Chapter 278A.  The movant must set forth, § 3(b)(1)-(5):

  • the type of scientific or forensic analysis sought,
  • that the results of such testing or analysis are admissible inMassachusettscourts,
  • a description of the evidence to be tested, including its location if known and chain of custody,
  • information “demonstrating that the analysis has the potential to result in information that is material to the movant’s identification as the perpetrator of the crime,” and
  • information showing that the evidence has not been subjected to the analysis for some reason beyond the movant’s control.

Although the Act does not explicitly state this, the items to be tested need not have been formally offered into, or admitted as, evidence in the case, as the Act specifically provides for access to analysis in cases for which no evidence will have been admitted (guilty or nolo contendere pleas) and of items that are in the possession of third parties, including specifically “items and biological materials.” § 7(c).

2. Required Evidentiary Significance of the Analysis Sought

The probative value of the analysis sought must simply be that it “has the potential to result in information that is material to the movant’s identification as the perpetrator of the crime.”  To grant the motion, the Court must find this potential by a preponderance of the evidence. § 7(b)(4).  This is a less-demanding standard than the standard for discovery under Rule 30 of the Massachusetts Rules of Criminal Procedure, although it applies only in the limited context of the perpetrator’s identification.  Rule 30(c)(4) provides a judge may authorize discovery “where affidavits filed by the moving party establish a prima facie case for relief.”  The Supreme Judicial Court has explained, in Commonwealth v. Daniels, 445 Mass. 392, 407 (2005), that the “prima facie case” in this context means a case sufficiently strong to go to the jury:

In requesting such discovery, the defendant must make a sufficient showing that the discovery is reasonably likely to uncover evidence that might warrant granting a new trial.  See Reporter’s Notes, supra (“Discovery is appropriate where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he or she is entitled to relief”).

Unlike the standard for discovery under Rule 30(c)(4), a motion under the Act need not show that it is “reasonably likely” to result in information but only that it “has the potential” to do so.  The focus of this information, however, must be narrower than that it “might warrant grant of a new trial”; instead it must be “material to the movant’s identification as the perpetrator.”

3. Cause for Seeking Post-Conviction Analysis

A movant must set forth cause for not having previously sought or obtained the requested forensic or scientific analysis.  The Act offers six possible grounds (§§ 3(b)(5)(i)-(v)):

  • the analysis had not been developed at the time of the conviction,
  • results of the analysis were not yet admissible inMassachusettscourts,
  • the defense was not aware of the material and had no reason to be aware of it at the time,
  • the movant’s lawyer had been ineffective by not seeking analysis,
  • the movant had been denied the analysis by the trial court, or
  • the “catch-all” that the material was otherwise unavailable to the movant at the time.

To the extent that a movant cannot include any of the information necessary to satisfy the requirements of the Act, the movant must include a description of efforts to obtain the information and can then seek discovery. § 3(c).

The Act makes clear that an otherwise eligible movant may not be denied analysis because he plead guilty or nolo contendere, or because he made or is alleged to have made an incriminating statement. § 3(d).  This provision was included in recognition of the fact that in a significant proportion of exonerations, defendants have falsely confessed to crimes they did not commit.[2]  A movant must file an affidavit that he is seeking the requested testing because he is factually innocent, that the testing or analysis will support this claim and, if he pled guilty or made an incriminating statement, that his motion is made notwithstanding his having entered the guilty plea and/or made the incriminating statement. Id.

III. Procedure

A.       Threshold Determination

The Act provides that the trial court shall “expeditiously review” motions to determine whether the movant has satisfied the initial requirements for access to analysis. § 3(e).  This threshold determination is not intended to be dispositive but to ensure that sufficient information is provided for the Commonwealth to assess the motion and for the Court to conduct a meaningful hearing.  Motions that do not satisfy the initial requirements of Section 3 may be dismissed without prejudice (and without a hearing). Id.  At this point, the Court’s determination is simply “whether the motion is sufficient to proceed under this chapter or is dismissed.” Id.  The Court must notify the movant and the prosecutor of its threshold decision. Id.

B. Response by Commonwealth

The prosecutor may, but need not, respond to the motion to “assist the court in considering whether the motion meets the requirement under this section.”  If the Court finds that the motion satisfies the threshold requirements of Section 3, the prosecutor then has sixty days to respond, which may be enlarged for good cause. § 4(b).  This is also an opportunity for the prosecutor to raise “any specific legal or factual objections” to the analysis sought. § 4(c).  The prosecutor is required to notify the victim of the filing of a motion for analysis. § 14(a).

C. Appointment of Counsel and Costs

The court may appoint counsel to represent indigent movants in preparing and presenting motions for access. § 5.  If analysis is ordered, the costs of analysis are to be paid by the movant if he or she is not indigent (as defined for appointment of counsel purposes), as an extra fee or cost if the movant is indigent, and to the “maximum feasible amount” given the financial resources of the movant “as the court deems equitable” if the movant is indigent but has the ability to pay a reduced fee. § 10(1)-(3).

D. Discovery

The Act provides that the Court may authorize discovery, as provided in Rule 30(c)(4) of the Massachusetts Rules of Criminal Procedure, at the request of either party, from either party or any third party. § 7(c).  Discovery may be necessary, for example, because the movant lacks information concerning the location, existence or chain of custody of items sought to be analyzed.  The prosecutor might seek biological material from the movant (i.e., the defendant’s DNA sample for comparison) or from the victim of the crime – for example, test results that exclude the defendant may not be probative of his innocence if the biological material belongs to the victim.  The movant is specifically obligated to cooperate with analysis ordered, including by providing biological samples, and unreasonable failure to do so may result in dismissal of the motion with prejudice. § 8(f).

Note that discovery under the Act, although it uses the mechanism of Rule 30(c)(4), may not be conditioned upon “establishment of a prima facie case.” § 7(c).  In other words, substantial, even overwhelming, evidence of guilt, should not impede the movant’s ability to discover information needed for the requested analysis if the analysis has the potential to result in evidence that is material to the moving party’s identification as the perpetrator.

E. Hearing

If the movant satisfies the threshold requirements for filing, a hearing is mandatory. § 6(a).  The movant must be present for this hearing unless he waives his presence. Id. Contrast this with Rule 30(c)(3) & (6), Massachusetts Rules of Criminal Procedure, which permit a judge to rule on post-conviction motions on affidavits without a hearing or at a hearing without the movant’s presence.

The judge who conducted the trial or accepted the movant’s pleas “shall conduct the hearing if possible.” § 6(b).  This parallels the practice under Rule 30 of having the trial judge hear the post-conviction motion in the first instance for reasons of efficiency given familiarity with the case.  However, this very familiarity could introduce bias, and thus the Reporter’s Notes to Rule 30 provide that “[r]ecusal of the trial judge should be liberally exercised, particularly where it is requested by the moving party.”[3]  A similar risk may exist with motions for access under the Act.

F. Judicial Determination

The judge must permit the requested analysis if he or she concludes that each of the threshold requirements in section 3 has been established by a preponderance of the evidence. § 7(b).  That is, the Court must find, under §§ 7(b)(1)-(6):

  • the evidence or biological material exists,
  • it has been subject “to a chain of custody that is sufficient to establish that it has not deteriorated, been substituted, tampered with, replaced, handled or altered such that the results of the requested analysis would lack any probative value,”
  • it has not been subject to the requested analysis for any of the reasons identified as permissible cause,
  • the requested analysis has the potential to result in evidence that is material to the moving party’s identification as the perpetrator,”
  • the motion’s purpose is not obstruction of justice or delay, and
  • the results of the requested analysis are admissible inMassachusettscourts.

The court must state its findings of fact and conclusions of law on the record or issue written findings. § 7(a).  An order allowing or denying a motion for analysis is a final appealable order, and the party appealing must do so within thirty days of the order’s entry. § 18. (The appeal provision states that a notice of appeal shall be filed “within 30 days after the entry of the judgment,” although presumably “judgment” refers to the order denying the requested analysis.)  If a court allows a motion for analysis, the prosecutor must notify the victims, including anyone who suffered direct or threatened physical, emotional or financial harm, as well as the parent, guardian or representative of such a person if the victim was a minor or has died. § 14(b), § 1 (definition of “victim”).

G. Procedure for Forensic or Scientific Analysis

The judge who allows a motion for analysis also specifies the conditions under which it occurs, including transportation and handling of the evidence or biological material to protect its integrity. § 8(a).  The parties may agree on any accredited testing facility, which may be the Massachusetts State Police Crime Laboratory or the Boston Police Crime Laboratory (unless the analysis will exhaust the material and prevent replicate testing). § 8(b).  If the parties are unable to agree, the Act sets forth a procedure by which each side provides a list of up to three facilities, from which the court selects one. § 8(c).

Exhaustive testing may not be done except upon a “specific order of the court.”  Upon request, the court may order that representatives be permitted to observe exhaustive testing procedures, unless this conflicts with laboratory practices. § 8(e).

The process for obtaining forensic or scientific analysis is intended to illuminate the state of the evidence rather than afford either side adversarial advantage; thus, each side is given equal access to all personnel, documents and reports of the testing facility. § 8(d).  Similarly, all results of analyses are simultaneously disclosed to the movant, the prosecutor and the court. § 12(a).  If the results are inconclusive, the court may order additional analysis if it concludes the original requirements for testing are still met. § 13.  Presumably this will most often turn on whether the additional analysis has the potential to result in evidence material to the movant’s identification as the perpetrator.

IV. Conclusion

The Act improves the accuracy of the criminal justice system in two ways.  By establishing a process for defendants who claim wrongful conviction to get testing that can show error in their cases, it enables efficient examination of claims of factual error.  This helps ensure past cases have been solved correctly.  By creating an obligation for the Commonwealth to retain and preserve material from criminal investigations, it provides a tool to help solve future cases, and prevent future potential errors, as techniques of forensic and scientific analysis improve.  This helps ensure future cases will be solved and increases the likelihood they will be solved correctly.  In the Fall 2012 edition of the Boston Bar Journal, we will review the state’s retention and preservation obligations, and suggest how policies to implement these obligations might be developed.

[1]Commonwealth v. Hernandez, 50 Mass.App.Ct. 1109, 738 N.E.2d 1166 (2000) (unpublished opinion).

[2]Samuel R. Gross et. al., Exonerations in the United States 1989 Through 2003, 95 J.  Crim. L. & Criminol. 523, 544 (2005) (15% of exonerations between 1989 and 2003, 51 out of 340, involved false confessions).

[3] Par. 2, Reporter’s Notes to Rule 30, Massachusetts Rules of Criminal Procedure.

David M. Siegel is a Professor of Law at New England Law | Boston specializing in Criminal Law, Criminal Procedure and Evidence.

Gregory I. Massing is Executive Director of the Rappaport Center for Law and Public Service at Suffolk University Law School. He was General Counsel of the Massachusetts Executive Office of Public Safety from 2007 through 2011.

(The authors were members of the Boston Bar Association’s 2008-2009 Task Force to Prevent Wrongful Convictions. The opinions expressed here are those of the authors and do not represent those of the Task Force, its members or the BBA.) 

A Community of Lawyers Contributing To Justice by Lisa C. Goodheart

President’s Page

The Boston Bar Association has one of the best views in the City, but I’m not talking about the one you’ll see from the second story picture windows at the top of Beacon Hill.  The more impressive sight is that of a great many lawyers doing good things to promote justice every day.  The engagement of so many of our members in community service has always been one of the hallmarks of the BBA.  And a big part of what makes the BBA a great organization is the high quality of the meaningful public service opportunities that it provides for members of our legal community.  Let me tell you about just a few of those opportunities.

The Public Interest Leadership Program (“PILP”) was created nearly a decade ago, out of the shared recognition by Chief Judge Mark Wolf of the federal district court and then-BBA President Michael Keating of the importance of enabling newer lawyers to become more engaged as community leaders earlier in their careers.  PILP was launched to enable newer lawyers to deepen their understanding of the meaning of community leadership, while forming new and lasting connections with a like-minded group of colleagues.  Each year, a class of PILP participants is chosen through a selective application process, and each class of “PILPers” works together on public service projects of their choosing.  This year, following some thoughtful programmatic refinements, PILP in being re-launched under the able leadership of Kathleen Henry and Darren Braham, both of whom are graduates of the program.  PILP will continue to assemble diverse groups of newer lawyers, who are committed to collaborating on pro bono and public service work and serious about developing their own leadership potential.  When they graduate from the 14‑month program, they will join a network of alumni who mentor and support their successors.  Please consider whether there is a newer lawyer who would benefit from your encouragement to apply for a spot in the next PILP class, and consider applying yourself if you are eligible for this unique public service opportunity.

The youth of the City of Boston are a particular focus of several BBA community service initiatives.  Our summer jobs program, for example, clearly reflects this focus.  Through this program, participating law firms and legal departments provide a diverse group of outstanding students from the Boston public high schools with invaluable exposure to the legal profession in the form of 8 weeks of summer employment.  Our Law Day program in the Boston public schools is likewise aimed at our city’s youth.  For the Law Day program, volunteer attorneys go into elementary, middle and high schools in all the different neighborhoods of Boston, highlighting the rule of law and planting seeds of interest in the legal profession.  Our members’ commitment to young people is also demonstrated through the M. Ellen Carpenter Financial Literacy Program, which is run by the BBA’s Bankruptcy Law Section in partnership with the U.S. Bankruptcy Court.  This program teaches high school students in Boston and across Massachusetts about the importance of making informed and effective decisions regarding their finances.  Volunteer lawyers provide the students with very practical information about checking accounts, payroll information, tax deductions, budgeting, credit cards, buying a car and the consequences of poor financial management.  For many, these critical practical lessons might not otherwise be learned.

Our members also serve the community by direct participation in public policy advocacy.  We make a positive difference by showing up and speaking out in support of broad access to justice and the sound administration of justice.  The BBA offers a number of organized opportunities for advocacy, often in partnership with legal service organizations, other bar associations and the courts.  The Annual Walk to the Hill for Legal Services is one such an opportunity.  This year, some 700 lawyers rallied at the State House to support increased funding for civil legal aid for the poor, highlighting the importance of the legal safety net on which our most vulnerable fellow citizens must depend for protection of their most basic rights.  More recently, on Court Advocacy Day, members of the legal community gathered again at the State House, this time to support the third branch of our state government by reminding the lawmakers who determine court budgets that “the judiciary is not a state agency whose capacity to function can expand or contract depending on changes in public policy and available resources,” as stated the BBA’s 2011 report, Justice on the Road to Ruin.  Lawyers have a special understanding of the importance of a high-quality court system, and a corresponding obligation to highlight the consequences of sustained underfunding of our courts.  Court Advocacy Day offered an important opportunity to meet that obligation, and others will follow.

To me, the essence of being a member of the BBA is being a part of a great community.  There is a real energy and a genuine commitment that is apparent in our members’ efforts to serve the public interest.  Please take a look.  What you will see are many ways to contribute to justice – including but extending well beyond the few I’ve mentioned here.  Please get involved.  Your participation is important, and you will definitely make a difference.

Guidelines on Abuse Prevention Proceedings: Navigating Rough Seas by Rebecca Cazabon

Practice Tips 

Sure to stir a wide range of emotions, restraining orders have become ubiquitous in our society.  Practitioners in the criminal law and domestic relations law arenas, as well as others, encounter restraining orders on a frequent basis.  For this reason, lawyers should become familiar with the particulars of Chapter 209A law, and resources available to help navigate what can appear to be a confusing process.  One such resource is the Guidelines for Judicial Practice: Abuse Prevention Proceedings.  Promulgated by the Office of the Trial Court in 1996, and later revised in 1997, 2000, and most recently in 2011, the Guidelines are an essential tool for anyone handling a 209A matter.

Enacted in 1978, the Abuse Prevention Act, M.G.L. Chapter 209A provides a statutory mechanism for those suffering from domestic abuse to seek legal recourse to stop and prevent abuse from occurring in the future.  Court orders available under c. 209A include, instructing the defendant to stop abusing or threatening to abuse the plaintiff, forcing the defendant to stop contacting the plaintiff, requiring the defendant to leave and stay away from the plaintiff’s household and workplace, granting temporary custody of a minor child/ren to the plaintiff, and directing the defendant to pay temporary support to the plaintiff or the minor child/ren of the relationship.  While 209A proceedings are civil in nature, a violation of a 209A order is a criminal offense.

To be eligible for a 209A order, a victim must show an intimate or familial relationship with the defendant, including marriage, substantive dating, cohabitation, relation by blood or marriage, or having a child together.  Victims who never knew their perpetrators, or knew them only marginally, such as many survivors of sexual assault, rape, and stalking, are ineligible to file for a 209A order.  To provide these and other victims with legal recourse, in 2010, the legislature enacted an Act Relative to Harassment Prevention Orders, M.G.L. 258E.  To be eligible for 258E relief, the plaintiff must prove the defendant committed at least three acts of willful and malicious conduct against the plaintiff, with the intent to cause fear, intimidation, abuse or damage to property, and that said conduct did in fact cause fear, intimidation, abuse or damage to property; or the defendant committed any act by force, threat or duress, that caused the plaintiff to engage in sexual relations; or the defendant committed a violation of a list of enumerated crimes.  The Supreme Judicial Courtrecently held that appeals from 258E decisions are appealed to the Massachusetts Appeals Court (as are 209A appeals).  O’Brien v. Borowski, 461Mass. 415 (2012).

The Guidelines for Judicial Practice: Abuse Prevention Proceedings were issued to help judges and court personnel sensitively and objectively address the broad range of complex issues that arise under c. 209A.  Intended to promote the safety of applicants, while ensuring the due process rights of defendants, the Guidelines provide uniformity and a coordinated response by the trial courts to domestic violence.  It is important to note that the Guidelines apply only to 209A proceedings, and are not an amendment to the existing statute.

The Guidelines provide a detailed and expansive analysis of the legal requirements under 209A, recommended interpretations of the law, and best practices for 209A policy and procedure, particularly in areas where the law is vague or silent.  See Guidelines for Judicial Practice: Abuse Prevention Proceedings 1:00 commentary (September 2011).  Given the sensitive nature of the issues involved, and the high level of tension that is often present, lawyers can benefit from thoughtful and practical guidance on how to represent clients in these cases.

The fourth edition of the Guidelines was compiled and implemented by the Trial Court, with significant assistance from the Boston Municipal Court, District Court, Probate and Family Court, and Superior Court Departments.  The revisions reflect several major substantive and procedural changes in 209A practice.  The revised Guidelines can be found on the Trial Court website,  Links to other documents, such as Highlights of September 2011 Revisions to Guidelines, and documents referenced in the Guidelines, including the newly revised c. 209A forms, which went into effect in January, 2012, can also be found on the Trial Court website.

The 2011 revisions to the Guidelines can be divided into three categories:  changes based on appellate case law decided between December, 2000, when the Guidelines were previously revised, and September, 2011, when they were most recently revised; changes based on statutory amendments and new statutory law; and changes based on the Trial Court’s desire to clarify and improve court policies and procedures covering 209A proceedings.  Brief descriptions of the most significant revisions to the Guidelines can be found in the Highlights on the Trial Court website.  Certain revisions, however, deserve special mention.

To begin with, the Guidelines have been revised to reflect that a court does not need personal jurisdiction over a defendant to issue a 209A order, except that it may not impose any affirmative obligations on a non-resident defendant, like ordering to pay child support or to surrender firearms.  Additionally, in light of the rise of social media over the last decade, the Guidelines provide that a 209A order prohibiting contact can be violated through e-mail, texts, Facebook, and Twitter.  The Guidelines now arm practitioners with helpful analysis based on key appellate law governing what a plaintiff must show in order to support a finding of risk of abuse to warrant an extension of a 209A order.  These factors include, ongoing custody or other litigation that engenders hostility, the parties’ demeanor in court, and the likelihood that the parties will encounter each other in their usual activities.  In addition, the revised Guidelines reflect recent case law supporting the holding that the fact that abuse has not occurred during the pendency of a 209A order does not in itself constitute sufficient grounds for allowing an order to be vacated.  In situations where the parties reverse roles in two different courts, and obtain 209A orders against one another, the revised Guidelines dictate that they be treated as mutual orders, which require specific written findings of fact, and should be issued only sparingly.

Further revisions that warrant special attention are those that are based on the Trial Court’s desire to clarify and improve court policies and procedures.  For example, the revised Guidelines now specify that a plaintiff should be informed that a defendant will have access to the affidavit supporting the 209A request.  The revised Guidelines also clarify that discovery orders are within the court’s discretion, but should be issued only upon a showing that such discovery is necessary to provide specific essential information, removing the presumption that discovery is not allowed in 209A cases except in extraordinary circumstances.  In addition, the Guidelines reinforce that 209A cases are public hearings and as such should not be conducted at side bar. The revised Guidelines specify that a 209A order must be immediately transmitted by the court to police as promptly as possible, either by faxing it to the appropriate department or arranging for the police to retrieve the order from the courthouse.  Orders that have expired or have been terminated by a judge are now referred to as “terminated” instead of “vacated”.  Finally, the Guidelines recommend that the clerk’s office request photo identification from a plaintiff wishing to terminate an order.

While the Guidelines lack the force of law of a legislative statute, and are not legally binding on the courts, they do provide persuasive judicial interpretations of statutes, case law and court procedure.  The Courts regularly apply the Guidelines to support their interpretation of domestic violence law.  For example, in support of its assertion of the minimum standards of fairness that must be observed in abuse prevention proceedings, and addressing specifically that a judge is prohibited from cutting short an abuse prevention hearing because of her belief that it should move to another forum, the Appeals Court recently cited to the Guidelines, “If the court in which a person initially seeks protection under c. 209A has jurisdiction, the person should be heard as soon as possible in that court, and should not be sent to another court”.  Guidelines for Judicial Practice: Abuse Prevention Proceedings § 1:01.  S.T. v. E.M., 80 Mass.App.Ct. 423, 953 (2011).

As another example, the Supreme Judicial Court used the Guidelines to reinforce its holding that a trial court committed an error of law in ignoring the four factors contained in c. 209A that should be considered in deciding whether the parties are engaged in a “substantive dating relationship”, instead improperly relying on non-statutory factors, including, the existence of a pending criminal case, and the young age of the alleged victim.  “[T]he issue of family violence has become the focus of legitimate and increasing public concern.  However, that concern must not be permitted to affect or diminish the court’s responsibility to remain neutral, to protect the rights of the accused in each case, and to address each case individually on its own merits.” Judicial Guidelines § 1:02 commentary.”  C.O. v. M.M., 442 Mass 648 (2004).

As the Trial Court acknowledges, “[t]he Abuse Prevention Act . . . is one of the most sensitive and potentially volatile areas of Trial Court jurisdiction.”  Guidelines for Judicial Practice: Abuse Prevention Proceedings, §1:00 commentary (September 2011).  Fortunately, practitioners can look to the Guidelines for comprehensive guidance on handling the myriad of complex and emotionally charged issues that arise in any given 209A case.

Rebecca Cazabon is the Pro Bono Managing Attorney at Foley Hoag LLP, where she has specialized in domestic violence and sexual assault law for the past twelve years.

Transgender Equal Rights In Massachusetts: Likely Broader Than You Think by M. Barusch and Catherine E. Reuben

Heads Up

On November 23, 2011, Governor Patrick signed into law legislation designed to protect transgender persons.  Chapter 199 of the Acts of 2011,[1] “An Act Relative to Gender Identity,” adds the words “gender identity” to the list of protected classes in a broad array of Massachusetts anti-discrimination laws, including laws that prohibit discrimination in employment, housing, education, lending, and credit.  Yet, there was at least one general anti-discrimination law that was not amended – M.G.L. c. 272, §98 – which prohibits discrimination by places of public accommodation.  Does this mean that restaurants, grocery stores, museums, and other places of public accommodation are free to tell transgender persons, “you aren’t welcome here”?  If past is prologue, the answer to that question is “No.”  Advocates will be using existing laws and precedent, unaffected by the recent legislation, to protect transgender persons from discrimination by public accommodations.

Some Definitions

The new law, effective July 1, 2012, defines gender identity as “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth” and  goes on to explain some of the evidence that could prove a person’s gender-related identity.  Although the law does not actually use the term transgender, one of its primary purposes was to protect transgender persons.  Transgender is an umbrella term that includes people who transition from one gender to another and/or people who defy social expectations of how they should look, act, or identify, based on their sex assigned at birth.  An example of a famous transgender person is Chaz Bono. Mr. Bono’s assigned sex at birth was female, but he now lives his life as a man; he went through a gender transition, in other words, a process by which he went from living and working as one gender to another.  Chaz Bono would be protected under the new law as a person who expresses a masculine identity, appearance, and behavior even though his assigned sex at birth was female. The new law also protects people who do not undergo a gender transition or do not identify with a gender different than the one traditionally associated with their sex assigned at birth, but who do not fit traditional gender roles, such as the female employee in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), who was told that, if she wanted to make partner, she should walk, talk, and dress in more feminine manner.

Debate over the Law

Proponents of the bill focused their advocacy on telling the stories of the many transgender persons whose lives were impacted by discrimination and violence.  In the largest national survey of transgender persons regarding discrimination against them, 76% of Massachusetts respondents reported experiencing harassment or mistreatment on the job, 20% had lost a job because they were transgender, and 22% were denied equal treatment by a government agency or official.[2]  The Judiciary Committee hearings went late into the night, with long lines of individuals and organizations testifying in support of the bill.

Opponents of the bill were also present, vocal, and passionate.  Of particular concern was the use of restrooms.  Among other things, opponents argued that the law would allow men posing as women to gain access to women’s restrooms for improper purposes.  At the Judiciary Committee hearings, some women testified about their fear of being assaulted in a public restroom, even though there was no evidence that such incidents had increased with the passage of transgender rights laws in Boston, Cambridge, and other municipalities and nearby states, and even though the national survey indicated that transgender women were frequently the victims of such crimes, not the perpetrators.

Largely as a result of this debate, the law that was passed did not address public accommodations.  Gender identity was added to the list of protected classes in the laws prohibiting discrimination in employment, housing, credit, and public education, but the law regarding public accommodations, M.G.L. c. 272, §98, was not so amended.  By not addressing public accommodations, the Legislature left the law of public accommodations unchanged and presumably free for further development by the courts.

Public Accommodations and Transgender Persons

Public accommodations cover a great deal more than restrooms.  M.G.L. c. 272, §98 prohibits discrimination by places that are open to and accept or solicit the patronage of the general public, including hotels, transportation carriers, retail stores, restaurants, libraries, hospitals, and more.  Under this statute, public accommodations may not discriminate on the basis of race, color, religious creed, national origin, sex, sexual orientation, deafness, blindness or any physical or mental disability, or ancestry.

The Legislature’s failure to add the term “gender identity” to the list of protected classes in the public accommodations law, while adding it to so many other non-discrimination statutes, appears at first blush to create the potential for incongruous results.  A restaurant is now prohibited from terminating an employee because the employee transitions from female to male, but can that same restaurant lawfully refuse to sell food to that employee after he clocks out?  A hospital is legally required to permit a transgender female nurse to use the ladies’ room, but can it lawfully refuse similar access to a transgender female patient?

Lawyers representing transgender individuals in such public accommodations situations have a number of options for resolving this seeming incongruity.  One place to start is the public accommodations law itself.   While the term “gender identity” may not have been added, the terms “sex” and “disability” were not removed.   Depending on the circumstances, discrimination against a transgender person by a place of public accommodation could be deemed discrimination on the basis of sex or disability.  Well before the new law was passed, there were numerous court and agency cases in which discrimination against transgender persons was deemed to constitute unlawful sex/gender and/or disability discrimination.  For example, in Doe v. Yunits, 15 Mass. L. Rptr. 278 (Mass. Super. Ct. 2001), Judge Gants, now an Associate Justice of the Supreme Judicial Court, held that a transgender girl who had  been diagnosed with gender identity disorder could proceed on a claim of disability discrimination when her school refused to permit her to wear clothing typically worn by girls.  See also, Jette v. Honey Farms Mini Market,  2001 WL 1602799 (MCAD) (where employer was on notice of complainant’s diagnosis and treatment for transsexuality, yet failed to provide her with the reasonable accommodation of allowing her to identify by name and otherwise as female, complainant could proceed on a claim of disability discrimination); Lie v. Sky Publishing, 2002 WL 31492397 (Mass. Super.) (male to female transsexual who is denied permission to wear female clothing at work can proceed with claims for both disability and gender-based discrimination); Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008) (discrimination against a transgender individual constitutes sex discrimination in violation of federal law).  If transgender persons are denied access to public accommodations, they could, and still can, file complaints with the Massachusetts Commission Against Discrimination (MCAD).

Transgender persons facing discrimination in public accommodations can also look to local law.  A number of cities, including Boston, Cambridge, and Northampton, have enacted ordinances prohibiting discrimination on the basis of gender identity by  public accommodations.

Another source of protection is Executive Order 526, issued by Governor Patrick in February 2011.  Executive Order 526 provides that “all programs, activities, and services provided, performed, licensed, chartered, funded, regulated, or contracted for by the state shall be conducted without unlawful discrimination” based on, among other things, “gender identity or expression.”   Many public accommodations, including homeless shelters, hospitals, and other human service organizations, are regulated and funded by the Commonwealth and thus could well be subject to the Governor’s order.

There is also “An Act Relative to Gender Identity” itself.  To the extent a place of public accommodation is also an employer – and most are – it will be required  to refrain from discrimination in employment on the basis of gender identity.   A public accommodation’s practice of discriminating against transgender patrons could increase its chances of being held liable for employment discrimination, since such practice could be deemed admissible as evidence of gender identity bias.  Similarly, banks, credit unions, credit card companies, and other public accommodations that provide loans and/or credit are prohibited under the new law from discrimination in credit and lending on the basis of gender identity.   If such an entity were to refuse to open an account for a transgender patron, even if that person did not specifically request a loan, it could well constitute a violation of the law, since credit and loans are usually among the services offered to account-holders.   Further, to the extent such entities adopt non-discrimination policies aimed at compliance with the new law, the failure to follow such policies could give rise to a claim for breach of an express or implied contract.


While “An Act Relative to Gender Identity” may not expressly include places of public accommodation, many such entities are covered in their capacity as employers, lenders, creditors, and/or state contractors.  Discrimination on the basis of gender identity may also violate existing discrimination laws and ordinances, either expressly or as interpreted in precedent.  In short, advocates for transgender rights in Massachusetts may well confirm that those rights are broader than you may think from a quick read of the new act.


[2] Findings of the National Transgender Discrimination Survey by the National Center for Transgender Equality and the National Gay and Lesbian Task Force:  Massachusetts Results, Washington: National Center for Transgender Equality and National Gay and Lesbian Task Force, 2011, available at

M. Barusch is a public defender at the Committee for Public Counsel Services.  She also serves as the Vice Chair of the Steering Committee of the Massachusetts Transgender Political Coalition, a member of the board and the Committee on Transgender Inclusion of the Massachusetts LGBTQ Bar Association and is a past Junior Supervising Attorney for Massachusetts Transgender Legal Advocates.

Catherine E. Reuben is one of the founding partners of the law firm of Hirsch Roberts Weinstein LLP where she provides counseling, training, and litigation defense for employers in labor and employment matters.  She is an active participant in the labor and employment law community, including numerous bar association activities, continuing legal education programs, and initiatives related to transgender rights.  

Tips for Handling Cases Under the New Alimony Law by Fern L. Frolin

Practice Tips

On March 1, 2012, An Act Reforming Alimony, M.G.L. c. 208, §§48 – 55, became law in the Commonwealth. The new law changes the structure and rules of judicially ordered support payments between former spouses. The statute establishes different types of alimony, provides criteria for courts to consider in deciding alimony cases, and encourages end dates for most alimony orders.

Alimony in Massachusetts was historically based on the recipient’s need and the payor’s ability to pay at the time of the order. Because most recipients’ future needs and most payors’ future ability to pay are speculative, nearly all orders had open-ended duration. Thus the notion evolved that alimony is usually a life-time arrangement, changeable only after circumstances requiring modification had already occurred. If a recipient increased income or conscientiously saved, he or she risked termination or reduction of alimony. If the payor suffered involuntary financial reversal, the recipient’s alimony could be abruptly terminated or reduced, despite ongoing need. The scheme encouraged dependency, left recipients vulnerable to unplanned events, and left payors with no ability to foresee when alimony obligations would end.

Against this backdrop, and public pressure for change, the legislature passed the new law. The  alimony law retains “need and ability to pay” concepts and permits judicial discretion in most instances, but it expands the narrow restrictions of present need and ability to pay, adding reasonable forward-looking presumptions.  It also allows different forms of alimony for different circumstances.  Mastery of the new law will require study, practice, and development of a lucid body of interpretive appellate law.  In the meantime, the following tips may aid practitioners.


General term alimony is granted to a spouse who is economically dependent. It will usually follow a mid to long term marriage. Except for judgments that the parties agreed were non-modifiable, orders entered before March 2012 are deemed general term orders. General term alimony terminates when either party dies; when the payor reaches “full retirement age” (as defined in the statute); on the recipient’s remarriage; on a date fixed by court order; or perhaps if the recipient maintains a common household with a third party. The order is modifiable unless the parties agree otherwise.

Presumptive duration depends on the length of the marriage. After a marriage of twenty years or longer, alimony presumptively ends when the payor reaches full retirement age. The new statute measures marriage length for alimony purposes from the date of marriage to the date of service of the complaint for divorce. Some practitioners question whether the date of service rule will cause payors to rush to serve a complaint in order to establish a marriage length cut-off.  Lawyers should advise their clients of presumptive limits but also recognize that judicial discretion may override the statutory presumptions. For example, the court may consider a significant period of premarital cohabitation or a significant marital separation in determining the length of the marriage.

Rehabilitative alimony is granted to a spouse who is expected to be self-sufficient by a predicted time. It is available after any length marriage and is payable for up to five years. It is also available after child support ends. It terminates at a set date, recipient’s remarriage, or on death of either party. It is modifiable in amount. It may be extended for compelling reasons if unforeseen events prevent the recipient from becoming self-supporting and the payor can continue to pay without “undue burden.” Because rehabilitative alimony may last longer than the presumptive limit on general term alimony for marriages of five years or less, this may be the most advantageous form for a recipient after a short marriage.

Reimbursement alimony is compensation for the recipient’s contribution to the payor’s financial resources. It is only available if the marriage was five years or less. It is not modifiable, and it is not subject to presumptive durational limits. Reimbursement alimony ends only on the death of either party or a date certain, so it may be a good choice for a recipient who plans to remarry or live with a new partner.

Income guidelines do not apply to reimbursement alimony. Therefore, reimbursement alimony may be optimal for a recipient who contributed substantially to the payor’s future where the investment has not yet paid off – for example, when one spouse put the other spouse through graduate school.

Transitional alimony is granted to transition a recipient to a new location or an adjusted lifestyle after a marriage of five years or less. It terminates at a date certain or the death of either party, is not modifiable or extendable, and is available for up to three years. It may not be replaced with a different form of alimony.

  1. CONSIDER DEVIATING FROM THE PRESUMPTIVE TERMINATION DATE WHEN THE ORDER IS FIRST ESTABLISHED. Under the new statute, all alimony orders presumptively terminate when the payor reaches full retirement age, if not sooner. The statute adopts the United States Social Security Act designation of full retirement age, which means that the age varies depending on the payor’s birth date.  Further, when the order originates, the court (or the parties by agreement) may set a different alimony termination date for good cause shown. Deviations in initial orders require only written findings of the reasons. Agreements to deviate should state the reasons. Requests for the court to deviate should include proposed findings.

Extension of an established termination date will be difficult to secure. An extension requires a material change of circumstances that occurred after the order was entered, and clear and convincing evidence of reasons for the extension. Practitioners should determine at the outset whether facts warrant an order that is longer than the presumptive duration. Advise recipient clients that they will face a heightened burden of proof if they need to extend the order.

  1. CREATE A CHECKLIST OF REASONS TO DEVIATE FROM THE PRESUMPTIONS. The non-exhaustive statutory list includes: parties’ advanced age; medical concerns; sources and amounts of income, including investment income from assets that were not allocated in the divorce; tax considerations; a party’s inability to provide self-support because of the payor’s abusive conduct; a party’s lack of employment opportunity; and orders that one party maintain medical insurance or life insurance. (The latter factor directly conflicts with a provision of the equitable division statute, G.L.c. 208, §34, but the legislature is expected to remedy the conflict soon.) Because the statute presumes that alimony ends at the payor’s retirement age, lawyers should also consider the client’s expected retirement resources, especially if the parties will not be similarly situated after a long term marriage.

Divorce lawyers may want to maintain a checklist of deviation reasons and expand the list as new appellate decisions develop.

  1. “COMMON HOUSEHOLD” IS A QUESTION OF FACT. The new statute permits alimony modification, suspension or termination if a general term alimony recipient cohabitates with another person in a common household for at least three continuous months.  A finding of “common household” requires a factual determination that the recipient and the third party reside together as a “couple.” Indicia include reputation as a couple, economic interdependence and other factors.  Not expressly mentioned in the statute, but facts that practitioners may want to research, include: family memberships, joint bank accounts, and joint ownership of real estate. Look also for “couple” and “status” postings on social network media.

Conclusion: Watch for appellate interpretations of key new statutory provisions. For example, where recipients’ “need” remains the basis for alimony, does the new presumptive maximum order amount now trump “need”? In the meantime, the message of the new law is that each party should plan financially. The new law requires us to think about spousal support in terms of the client’s future needs, resources and lifestyle.

General Term Alimony

Presumptive* Maximum Durations

If married :

Up to 5 years ……………….. 50% of months married

Up to 10 years ……………… 60% of months married

Up to 15 years ……………… 70% of months married

Up to 20 years ……………… 80% of months married

More than 20 years .……………… up to presumptive      retirement age

*All presumptions are subject to Court’s

statutory exercise of discretion

Fern Frolin practices family law at Grindle Robinson Goodhue & Frolin. She served on the joint judiciary committee task force that drafted the Alimony Reform Act of 2011.

Commonwealth v. Aviles and the Continuing Evolution of the First Complaint Doctrine by Anne Pogue Donohue

Case Focus

Recently, in Commonwealth v. Aviles, 461 Mass. 60 (2011), the Massachusetts Supreme Judicial Court announced a significant reformulation of the “first complaint” doctrine in sexual assault cases.  The SJC created the “first complaint” doctrine seven years ago, when it abandoned the “fresh complaint” doctrine.  See Commonwealth v. King, 445 Mass. 217 (2005), cert. denied, 546 U.S. 1216 (2006).  Prosecutors could no longer have multiple witnesses testify about what a sexual assault victim told them about the assault; instead, a prosecutor would be limited, generally, to introducing the testimony of only the first person to whom the victim disclosed the assault.  In other words, the prosecution could introduce only the victim’s “first complaint.”  The purpose of the “first complaint” doctrine, as had been the purpose of the “fresh complaint” rule it replaced, was to support a victim’s credibility by countering the widely-held assumption that a victim who is not fabricating her allegations would have made a contemporaneous complaint of the assault.  Another purpose of the “first complaint” doctrine was to avoid unfairly enhancing a victim’s credibility by allowing multiple repetitions of the victim’s complaint as had been permitted under the “fresh complaint” doctrine.

 As the SJC confronted difficulties in applying the first complaint doctrine, two concurring opinions appeared.  They suggested that at least some of the justices were thinking about changing the doctrine yet again, or possibly even abandoning it altogether.  See Commonwealth v. McCoy, 456 Mass. 838, 854-856 (2010) (Marshall, C.J., Botsford and Gants, JJ., concurring); Commonwealth v. Dargon, 457 Mass. 387, 405-406 (2010) (Marshall, C.J., Botsford and Gants, JJ., concurring).  These ruminations culminated in Aviles, where the SJC affirmed the vitality of the first complaint doctrine but significantly modified the standard of review on appeal.

In Aviles, the eight-year-old victim told her mother in 2002 that the defendant (who was her mother’s boyfriend) had “touched” her, but she did not provide any further detail.  The victim and her mother moved out of the house.  Three years later, after seeing the defendant’s photograph on TV, the victim told her grandmother the details of the sexual assault three years earlier.  The grandmother then told the victim’s mother, who in turn contacted the police.  The defense theory was that the victim fabricated the allegations against the defendant, with whom the victim and her mother were living, because she wanted to go live with her grandmother.

The defendant moved in limine to restrict the complaint testimony to the victim’s initial report to her mother that the defendant had “touched” her, thereby excluding any evidence relating to the victim’s more detailed disclosure three years later to her grandmother.  The trial judge agreed that the substance of the victim’s statement to the grandmother was inadmissible under the first complaint doctrine.  However, she allowed the witnesses to testify that the victim had made a disclosure to the grandmother after seeing the defendant’s photograph on television, and that the disclosure led the mother to the police.

Given that the victim’s 2002 statement to her mother was the “first complaint,” the SJC accordingly affirmed the trial court’s ruling that the substance of the victim’s disclosure to her grandmother was inadmissible under the first complaint doctrine.  The Court also held that it was error to admit the fact of the later disclosure to the grandmother because the victim’s “testimony regarding the fact of her disclosure was essentially the same as permitting her grandmother to testify, thereby lending improper credence to [the victim’s] account.”  Id. at 69.  Nevertheless, the Court ruled that the error was harmless because the testimony was independently admissible “to rebut the defendant’s suggestion that [the victim] had fabricated her accusations in order to return to her grandmother’s house.”  Id. at 70-71.

Aviles re-affirmed the vitality of and established new parameters for the first complaint doctrine.  The SJC also explicitly changed the standard of appellate review.  The Court held that the first complaint doctrine would no longer be treated as an evidentiary rule.  Rather, to give trial judges “greater flexibility,” the doctrine should be viewed as “a body of governing principles to guide a trial judge on the admissibility of first complaint evidence.”  Id. at 72-73.  As a result, the trial judge’s decision to admit such evidence will be reviewed on appeal for abuse of discretion.  If an abuse of discretion is found, presumably the appellate court will order reversal only if the error is prejudicial (in the case of preserved error) or if it created a substantial risk of a miscarriage of justice (in the case of unpreserved error).

What does this mean for us as practitioners going forward?  Perhaps the biggest question mark left open in Aviles is whether the new rule will apply retroactively to cases tried before the decision issued.  Aviles did not address this question, so for now, we must await further guidance from the appellate courts on this issue.  With regard to trials, the effects of Aviles will be more subtle and will vary from case to case.  The SJC unequivocally stated that Aviles does not signal “a relaxation or erosion of our first complaint jurisprudence.”  Id. at 73.  Accordingly, practitioners should expect trial judges to continue applying the first complaint doctrine but with greater latitude, as provided by Aviles, in assessing what complaint evidence may properly be admitted based on the circumstances of each case.  A big difference will no doubt come on appeal as a result of the new standard of appellate review.  To reverse for abuse of discretion, the appellate courts must find that “no conscientious judge, acting intelligently, could honestly have taken the view expressed by [the trial judge].”  Commonwealth v. Ira I., 439 Mass. 805, 809 (2003) (internal quotes and citations omitted).  Because it is more difficult for defendants to meet this higher standard, it is likely that fewer cases will be reversed on the basis of admission of evidence in violation of the first complaint doctrine.

Anne Pogue Donohue started her legal career as a law clerk at the Superior Court and then for Justice Ariane D. Vuono at the Appeals Court; since 2007 she has been an appellate prosecutor at the Middlesex District Attorney’s Office.  

To Err Is Human; To Correct, Difficult: In Smaland Beach Association, The Supreme Judicial Court Sets Demanding Standards For The Amendment Of Deposition Testimony by David Clancy

Legal Analysis

Imagine you depose an adverse witness who answers a key question with a categorical “Yes.”  This is an important admission, and you’re pleased — until an errata sheet arrives changing that answer to “No.”  Can an errata sheet really change “Yes” to “No”?  In Smaland Beach Association, Inc. v. Genova, 461 Mass. 214 (2012), the Supreme Judicial Court addressed that question for the first time, and the answer is . . . “Maybe.”

The propriety of a substantive change to sworn deposition testimony, holds the SJC, depends on the circumstances.  In elaborating on that point, the SJC provides detailed — and cautionary — guidance on the proper use of deposition errata sheets, an important day-to-day practical issue that had previously been unsettled in Massachusetts state court.

Smaland was a contentious real-estate dispute.  Smaland Beach Association, in Plymouth, sued its own members Arthur and Patricia Genova, who owned adjoining property, for encroachment and trespass, and the Genovas responded with various claims against Smaland, its officers and directors, and another local property-owner.  Various individuals associated with Smaland were deposed.  Evidently dissatisfied with their own sworn testimony, they made aggressive changes to it with a sheaf of errata sheets.  “At various points in these errata sheets,” states the SJC, “the deponents wholly reversed their testimony from an affirmative to a negative response, or vice versa, struck existing testimony and replaced it with a different narrative, or added explanatory text to existing deposition testimony.”

An eyebrow-raising footnote 5 to the decision gives specific examples.  “I’d say no” was changed to “I’d say yes.”  “I don’t believe” was changed to “I believe.”  Testimony about the Genovas cutting down a tree was changed from “I knew [the tree] was blocking” to “I knew [the Genovas] claimed it was blocking.”  Another witness struck seven lines of testimony about an affidavit she signed at her counsel’s office and replaced it with “four paragraphs of testimony emphasizing her [own] role” in composing the affidavit.  The errata sheets euphemistically described these changes as “clarifications.”

Smaland’s attorney was heavily involved in the preparation of these errata sheets, and the Genovas’ counsel argued that he had thereby made himself a witness at trial.  On that basis, and because of an advice-of-counsel defense, the Superior Court judge disqualified him.  “I’ve never seen errata sheets of that nature in my legal career,” the judge stated at the hearing. “They essentially totally changed the deposition testimony.  Not to allow [the Genova’s counsel] to call him as a witness would be prejudicial . . ..”

On an interlocutory appeal, the SJC vacated the disqualification ruling, but not because the SJC approved of the errata sheets.  Instead, the SJC believed that the trial judge did not “sufficiently analyze the factors” relevant to the “severe” penalty of attorney disqualification.  For that essentially procedural reason, the SJC remanded for further consideration, recognizing that after “further review” the trial judge might properly “again disqualify” the challenged attorney.  In doing so, the Court referred to the errata sheets as “unusual,” and took “this opportunity to clarify the use of errata sheets to alter deposition testimony.”

First and foremost, held the SJC, an errata sheet can make a substantive change to accurately-transcribed deposition testimony.  A minority of federal courts have held otherwise.  The SJC considered but rejected that strict rule, in large part because Massachusetts Rule of Civil Procedure 30(e) expressly contemplates changes to the “form or substance” of deposition testimony.  The SJC described the minority view as imposing “an artificial stricture on the analogous Federal rule,” and described its own view as permitting “legitimate corrective changes and advanc[ing] the underlying purpose of the discovery process, i.e., ‘for the parties to obtain the fullest possible knowledge of the issues and facts before trial.'”

Nevertheless, the SJC cautioned, its more “expansive” reading of the rule does not mean that changes to substance may freely be made.  Quite the contrary.  A substantive change is improper unless counsel has first advised the witness “that any changes they make must represent their own good faith belief, and may not be undertaken simply to bolster the merits of a case.”  It is also improper unless it is accompanied by a statement of reasons, which reasons “must be advanced in good faith and provide an adequate basis from which to assess their legitimacy.”  The SJC puts counsel on notice that, “if there is any indication that an attorney has exploited the rule by arranging or facilitating the submission of errata sheets for the purpose of strategic gain in a case and not to correct testimony, his conduct may be grounds for sanctions.”

Also, under the SJC’s holding, even where a change is permitted as a matter of substance, it can have important procedural consequences.  The deposition may be reopened if the new answers “would reasonably have triggered further inquiry” during the initial deposition — with an award of associated costs and attorneys’ fees “where fairness requires.”  In addition, the original answers may be read at trial, along with the changed answers and the reasons provided for the change.

Preparing an errata sheet is a recurring aspect of litigation practice, but, until now, Massachusetts-specific guidance on this issue was sparse.  The SJC identified only two Massachusetts state-court decisions, both by the Superior Court.  Federal decisions (which are in any event non-binding in Massachusetts state court) are inconsistent.  As the SJC observed, a majority of federal courts take an approach that “allows any changes, whether in form or in substance, clarifying or contradictory,” but a “growing minority” of federal courts have adopted “a narrower interpretation.”  That minority is itself divergent, with some courts permitting the correction of typographical and transcription errors only (“a deposition is not a take-home examination,” stated one federal district court), and some courts also permitting the addition of text that clarifies, but does not contradict, existing testimony.

So while the issue remains unsettled in federal court, it is now settled in Massachusetts:  a substantive change to a deposition transcript is a possibility, but only where specified procedural requirements have been satisfied, and only where the underlying reason for the change — which must be contemporaneously stated in writing — is legitimate.  And, as the SJC warns in its coda,

[W]e caution deponents and attorneys to use this privilege sparingly.  The errata sheet is intended as a tool to correct mistakes in deposition testimony or subsequent transcription.  It is not to be used as a mechanism to inject additional facts into the testimony of a single deponent, or to align testimony across deponents.

This article began by asking rhetorically whether an errata sheet can change an answer from “yes” to “no,” and summarized the SJC’s recent answer as “maybe.”  On reflection, perhaps it is appropriate to conclude by amending that “maybe” as follows:  “Maybe, but only where the party and counsel proceed in good faith and with great care.”  The reason of course is the SJC’s detailed, firm, and cautionary guidance.

David S. Clancy is a partner at Skadden, Arps, Slate, Meagher & Flom LLP where he handles individual and class action lawsuits in federal and state court, at the trial and appellate level.