Cantell v. Commissioner of Correction, Class Actions and the Mootness Doctrine

lyonsby Jeff Goldman

Case Focus

In Cantell v. Commissioner of Correction, 475 Mass. 745 (2016), four inmates appealed from the denial of their petition for class certification to seek a class-wide injunction limiting the use of “special management units” or “SMUs” in state prisons.  The Superior Court had denied a motion for class certification, and the Appeals Court had dismissed the plaintiffs’ appeal from the denial as moot because, “when the plaintiffs’ appeal was before that court, it was uncontested that none of the named plaintiffs was still confined in an SMU.”  475 Mass. at 752-53.

The SJC could have fixed the Appeals Court’s mootness error by relying on the established principle that on an appeal from the denial of class certification, the court determines mootness based on whether the claim was moot while before the trial court, regardless of whether the class representative’s claims became moot while the case was on appeal.  U.S. Parole Commission v. Geraghty, 445 U.S. 388, 404 (1980); see also Gonzales v. Commissioner of Correction, 407 Mass. 448, 452-53 (1990) (holding that where individual claims become moot prior to class certification motion, class claims are dismissed); 1 William B. Rubenstein, Newberg on Class Actions § 2:10 (5th ed. 2011).  In other words, as the U.S. Supreme Court held in a 1980 decision also involving claims by prisoners, the determination of mootness on appeal from a denial of class certification “relat[es] back” to the plaintiffs’ situation as it existed before the trial court.  Geraghty, 445 U.S. at 404.  Had the SJC applied Geraghty in Cantell, the outcome would have been the same but the Court’s decision much easier:  because “[a]t the time of the motion judge’s decision [on the motion for class certification], one of the named plaintiffs . . . remained in an SMU,” there was therefore no mootness problem.  Id.

However, none of the briefs in Cantell cited Geraghty, and the SJC resolved the mootness issue by relying entirely on Wolf v. Commissioner of Public Welfare, 367 Mass. 293, 297–298 (1975).  Discussing Wolf, the SJC reasoned that the case was:

not moot because the plaintiffs brought this case as a putative class action, and the class action allegations contained in the amended complaint remain operative until a judge has considered and rejected them on their merits.  See Wolf [] (adopting rule followed by number of Federal courts “that a class action is not mooted by the settlement or termination of the named plaintiff’s individual claim”).  This is particularly true where, as the plaintiffs argue is the case here, it is within the defendants’ power voluntarily to cease the allegedly wrongful conduct with respect to any named plaintiff by unilaterally deciding to release him from an SMU.  “If the underlying controversy continues, a court will not allow a defendant’s voluntary cessation of his allegedly wrongful conduct with respect to named plaintiffs to moot the case for the entire plaintiff class.”  [Wolf] at 299 []. The statement applies to the present case: the alleged wrongs set out in the amended complaint continue to affect the putative class of individuals who remain confined to SMUs.  In these circumstances, the plaintiffs’ appeal is not subject to dismissal on mootness grounds.

This formulation—“that a class action is not mooted by the settlement or termination of the named plaintiff’s individual claim”—is imprecise and will likely need to be revisited.  Although it works in the circumstances of Cantell, it cannot be said as a general matter “‘that a class action is not mooted by the settlement or termination of the named plaintiff’s individual claim.’”  In typical cases, and where no other mootness exception applies, if all individual claims become moot before the filing of a class certification motion, the entire case should be dismissed.  See, e.g., Gonzalez, 407 Mass. at 450; Cruz v. Farquharson, 252 F.3d 530, 533 (1st Cir. 2001) (“Despite the fact that a case is brought as a putative class action, it ordinarily must be dismissed as moot if no decision on class certification has occurred by the time that the individual claims of all named plaintiffs have been fully resolved.”).  Accordingly, it was probably a mistake for the SJC to state that “class action allegations . . . remain operative until a judge has considered and rejected them on their merits.”  Whether this is dicta or not, an attorney reasonably could use these statements to support an argument that the mootness of a class representative’s personal claims never matters under Massachusetts law, even if the personal claims were moot before filing a motion for class certification motion, or even that there is never a mootness defense in a class action.

This imprecise language notwithstanding, lower courts should not take Cantell as foreshadowing the SJC’s abrogation of mootness doctrine in class actions.  The SJC regularly invokes the mootness doctrine, particularly in cases of constitutional dimension.  Further, the SJC recognized in at least two cases after Wolf that the mootness doctrine applies to class claims.  In Flint v. Commissioner of Public Works, 412 Mass. 416, 419-20 (1992), the SJC rejected on mootness grounds class action claims for declaratory relief.  And in Gonzales, the SJC reversed the trial court’s certification of a class of prisoners (and directed that the case be dismissed unless resuscitated within thirty days by a new plaintiff) because the two named plaintiffs were no longer incarcerated at the time of the class certification motion.

Finally, Wolf does not actually support the parenthetical that the SJC used to summarize it in Cantell.  Wolf held merely that the named plaintiffs’ claims were not necessarily moot under the common law because they were “capable of repetition yet evading review.”  In fact, Wolf was a prototypical “capable of repetition yet evading review” case:  the claim was that the plaintiff and other members of the class were not receiving replacement public assistance checks within the required four-day period, but rather some days later.  It would have been virtually impossible for any claimant file a lawsuit and achieve class certification while any single check was outstanding.  (The “capable of repetition yet evading review” exception might also have applied in Cantell, although it was not necessary for the SJC to reach the question.)

In short, in its class action-mootness jurisprudence, as in most of its other opinions about justiciability, the SJC has taken a flexible approach, deciding some technically-expired issues on their merits because there are sound, common-law reasons to do so, while refusing to adjudicate stale issues when no traditional exception to mootness doctrine applies.  When the next opportunity arises for the SJC to apply the mootness doctrine in a class action, the Court should reiterate its past, sound approach and reject any attempt to read Cantell as requiring a categorical approach to mootness in class cases.

Jeff Goldman is of counsel at Morgan, Lewis & Bockius, LLP.  His practice centers on securities litigation and regulatory enforcement defense.


Ferri v. Powell-Ferri: Expansion of Common Law “Trust Decanting” in Massachusetts

lyonsby Marc J. Bloostein

Case Focus

Trust decanting is a method by which the trustee of an irrevocable trust distributes trust assets into a new trust with revised terms. In Ferri v. Powell-Ferri, 476 Mass. 651 (2017), the Supreme Judicial Court (SJC) held that trust property in a Massachusetts irrevocable trust may be decanted into a new trust even if doing so would remove the trust assets from the beneficiary’s marital estate during his divorce. The SJC left open, however, whether decanting solely to deprive the beneficiary’s spouse of marital assets would be invalid as contrary to public policy. Id. at 664 (Gants, C.J., concurring). Although Ferri provides needed guidance to trustees on decanting, it leaves some unanswered questions that should be addressed by the legislature.

Common law decanting pursuant to language in an irrevocable trust was first recognized in Massachusetts in Morse v. Kraft, 466 Mass. 92 (2013). In Morse, the Court interpreted the trust instrument to authorize the trustees to distribute the trust assets to a new trust. Morse, 466 Mass. at 96-98. The key factors that allowed the trustees to decant assets into a new trust were: (1) the trustees’ unlimited discretion over distributions; (2) the trustees’ power to apply property for the benefit of a beneficiary; and (3) the broad grant of powers to the trustees. Id. at 98-99. To determine the settlors’ intent with respect to decanting, the SJC considered the post-execution affidavits of the settlor, draftsperson and disinterested trustee. Id. at 97. The Court declined to adopt a rule that any trustee with broad distribution power has the inherent power to decant, and instead opted for a case-by-case determination taking into account the terms of the trust instrument. See Ferri, 476 Mass. at 658 (citing Morse, 466 Mass. at 97).

In Ferri, the irrevocable trust at issue had been established for the benefit of Paul Ferri, Jr., the settlor’s son. Beginning at age 35, Paul could withdraw an increasing portion of the trust property; at the time of the decanting he could withdraw about 75% of the principal. Shortly after Paul’s wife filed for divorce in Connecticut, the trustees effectively eliminated Paul’s power to withdraw by decanting the assets into a new trust (without informing Paul or obtaining his consent). There is no question that the decanting was an effort by the trustees to remove the trust property from Paul’s marital estate. Id. at 653.

The Connecticut Supreme Court certified three questions to the SJC, including whether the trust instrument, which was governed by Massachusetts law, authorized the trustees to decant. 476 Mass. at 652. Unlike in Morse, the trustees were not waiting for court approval—they had already decanted (indeed, they had done so even before the SJC decided Morse).

The SJC  answered that the Ferri trust instrument allowed decanting. The trust instrument gave the trustees broad discretionary distribution powers “virtually identical to provisions in the Morse trust,” along with discretion even more expansive than that afforded in the Morse instrument. Consequently, the settlor’s intention to authorize decanting “would seem to follow necessarily.” Id. at 657-58. In particular, the SJC found that the trustees’ explicit authority to “segregate irrevocably [net income and principal] for later payment to” the beneficiary “indicate[d] the settlor’s intention to allow decanting.” Id. at 658. Thus, the SJC held that decanting was proper if done in the beneficiary’s best interest, unless and until all the trust assets had been withdrawn by the beneficiary. Id. at 662.

The Court rejected Powell-Ferri’s counter-argument that decanting was not allowed because it would render the beneficiary’s power to withdraw nugatory. First, all trust provisions must be read consistently, and if “withdrawable” property could not be decanted, then there would be no point to the trust after the age of full vesting with the beneficiary. Id. at 660. Second, because the trustees hold full legal title to all trust property, that property remains subject to their full stewardship and power, including the authority to decant. Id. at 660-61. Third, the two methods of distributing trust property—the beneficiary’s withdrawal power and the trustee’s power of distribution—are not mutually exclusive and decanting is consistent with the trustees’ power to irrevocably sequester for “’[s]o long as [the beneficiary] is living.’” Id. at 661. The SJC also found that the settlor’s affidavit could evidence the settlor’s intent if the settlor’s intent were otherwise ambiguous at the time he created the trust, and so long as the affidavit did not contradict or attempt to vary the terms of the trust. Id. at 663.

In short, although Ferri, like Morse, affirmed the importance of considering the trust instrument as a whole in determining the settlor’s intent regarding decanting, the Ferri Court nevertheless favored the trustees’ decanting power despite the trusts’ potentially conflicting withdrawal right provisions. In so deciding, the SJC expressly did not consider whether, in some circumstances, the existence of a withdrawal power might override trust provisions that allow decanting as a matter of public policy, as the Connecticut trial court had decided. See Ferri v. Powell-Ferri (SC 19317), 2013 Conn. Super. LEXIS 1938. As Chief Justice Gants pointed out in his concurrence, Ferri did not answer “whether Massachusetts law will permit trustees in Massachusetts to create a new spendthrift trust and decant to it all the assets from an existing non-spendthrift trust where the sole purpose of the transfer is to remove the trust’s assets form the marital assets that might be distributed to the beneficiary’s spouse in a divorce action.” 476 Mass. at 664 (Gants, C.J., concurring) (noting the Massachusetts prohibition against trusts that violate public policy in the Massachusetts Uniform Trust Code, G.L. c. 203E, § 404).

Notably, the Ferri Court also did not consider the ramifications of the provision of the Massachusetts Uniform Trust Code which provides that the holder of a non-lapsing withdrawal power under the terms of a trust (whether revocable or irrevocable) is treated as if he were the settlor of a revocable trust with respect to the property subject to the power, and the rights of the other beneficiaries are subject to his control and the duties of the trustee are owed exclusively to him. G.L. c. 203E, § 603. Nor did Ferri articulate any fiduciary limits to decanting, although there must be limits. See, e.g., Old Colony Trust Co. v. Silliman, 352 Mass. 6, 10 (1967) (“[E]ven very broad discretionary powers are to be exercised in accordance with fiduciary standards and with reasonable regard for usual fiduciary principles.”). Ferri raised additional questions by suggesting—without explaining—that a “duty to decant” may exist. 476 Mass. at 661.

Consequently, Ferri leaves trustees to ponder the limits of their power to decant, whether they might have a duty to decant and, if so, under what circumstances. The Massachusetts legislature should adopt a decanting statute to provide a path for trustees to decant with clear limits and safeguards.

Marc J. Bloostein is a partner in Ropes & Gray LLP’s private client group and focuses on estate planning and fiduciary law. He was co-chair of the BBA’s Trusts and Estates Section from 2011 to 2013, he played a key role in the 2012 enactment of the Massachusetts Uniform Trust Code, and he teaches a course on estate planning at Harvard Law School.

Disagreement Resolved: Unpreserved Public Trial Violation Does Not Require Automatic Reversal of a Criminal Conviction

lyonsby Bethany Stevens

Case Focus

The Supreme Court’s decision in Weaver v. Massachusetts, (16-240, June 22, 2017), did not resolve the broad disagreement for which it granted certiorari—whether a criminal defendant must demonstrate prejudice when a structural error is not preserved at trial. The Court, however, did resolve the disagreement in the context of trial counsel’s failure to object to the closure of the courtroom in violation of a defendant’s Sixth Amendment right to a public trial. Still, while the ultimate focus of Weaver is narrow, the resolution of this limited issue is very important in Massachusetts. This is because it was a fairly common practice by court officers, prior to 2007, to close courtrooms to the public due to space constraints during jury selection in criminal trials. As such, the finality of numerous Massachusetts convictions hinged on the Supreme Court’s decision.


It has been well settled that closure of the courtroom to the public in a criminal trial violates a defendant’s Sixth Amendment right to a public trial. It has also been well settled that the violation of the public trial right is considered a “structural” error. A structural error is a constitutional violation that, in the direct review context, generally entitles a defendant to automatic reversal without any inquiry into prejudice. It was not clear, however, whether the public trial right extended to jury selection. It also was not clear whether an unpreserved violation of the public trial right required the same remedy of automatic reversal.

In April of 2007, the First Circuit concluded that the public trial right does extend to jury selection and that the structural nature of this Sixth Amendment violation, even when unpreserved, required reversal of a criminal conviction without any showing of prejudice. Owens v. United States, 483 F.3d 48, 61-66 (1st Cir. 2007). The First Circuit’s decision called into question numerous Massachusetts State court convictions, including the murder conviction of Kentel Weaver, and prompted numerous motions for a new trial.  These convictions were further called into question when the Supreme Court issued its controversial per curium opinion in Presley v. Georgia, 558 U.S. 209, 213 (2010), which recognized explicitly for the first time that the Sixth Amendment right to a public trial does indeed extend to jury selection.

Weaver, who was charged with murdering a 15-year old boy, went to trial in 2006, prior to Owens and Presley. The jury was selected from jury pools of 60-100 potential jurors and the voir dire took place in a courtroom that accommodated seating for only 50-60 people.

The defendant’s mother and her minister were turned away from the courtroom by a court officer during the two days of the jury selection process in order to accommodate the large number of jurors. The defendant’s mother told trial counsel about her inability to get into the courtroom, but counsel did not bring it to the defendant’s attention or object; trial counsel believed that a courtroom closure during the jury selection process was constitutional. At trial, the jury convicted the defendant of first degree murder.

Five years later and following the First Circuit’s decision in Owens, Weaver filed a motion for a new trial seeking automatic reversal of his murder conviction because counsel failed to object to the closure of the courtroom during the jury selection process. While his motion was pending, the Supreme Judicial Court issued its decision in Commonwealth v. LaChance, 469 Mass. 854, 856 (2014), which, contrary to the First Circuit, held that a public trial violation, despite being a “structural” error, can be procedurally waived and, that an unpreserved claim of this sort will not entitle a defendant to automatic reversal; rather, a defendant is only entitled to a new trial upon a showing that trial counsel’s constitutionally deficient performance caused prejudice.

In Weaver, the Supreme Court concluded that the Supreme Judicial Court was correct. A public trial violation that is not preserved at trial and raised on direct appeal requires the defendant to establish prejudice as a result of the error. The Supreme Court broke new ground in its explanation that not all structural errors are the same. In so doing, the Court identified three broad rationales for why its decisions have deemed particular errors “structural.” The first rationale for deeming an error structural in nature is not because the constitutional right at issue protects the defendant from erroneous conviction, but instead because it protects some other important interest. For example, the denial of a defendant’s right to conduct his own defense is a structural error not because it provides a trial benefit to the defendant (in fact, it usually increases the likelihood of an unfavorable outcome), but because the Constitution requires that a defendant must be allowed to make his own choices about the proper way to protect his own liberty. A second rationale for deeming an error structural in nature is when the effects of the error are simply too hard to measure. This too can be seen in the denial of a defendant’s constitutional right to select his or her own attorney. Finally, some errors—like the denial of an attorney altogether or the failure to give a reasonable doubt instruction—are structural in nature because the error always results in fundamental unfairness to the defendant at trial. The Court concluded these different reasons for deeming an error structural require the use of a different standard when considering an ineffective assistance of counsel claim premised on the failure to object to the underlying error.

In evaluating the unpreserved structural error at issue in Weaver, the Court recognized that it cannot be that a public trial violation results in fundamental unfairness in every case because the courtroom can be closed over the defendant’s objection as long as the trial judge makes on the record findings pursuant to Waller v. Georgia, 467 U.S. 39, 48 (1984) to justify the closure. Rather, the violation of the public trial right is deemed structural error because it protects other important interests (namely, the public’s interest and constitutional right pursuant to the First Amendment), and because the effects of the error are simply too hard to measure. Moreover, analyzing an unpreserved error of this type differently than if the error had been preserved is justified where a contemporaneous objection would allow the trial judge to cure the violation by either opening the courtroom or explaining the reasons for the closure.

Thus, Weaver would only have been entitled to a new trial if he had been able to show that trial counsel’s failure to object to the closure of the courtroom during the jury selection process was both constitutionally deficient and that the deficiency resulted in prejudice. The Supreme Court went on to assume “that prejudice [could] be shown by a demonstration of fundamental unfairness,” but found that such fundamental unfairness was not shown in Weaver where the “trial was not conducted in a secret or remote place,” and “[t]he closure was limited to the jury voir dire; the courtroom remained open during the evidentiary phase of the trial; the closure decision apparently was made by court officers rather than the judge; there were many members of the venire who did not becomes jurors but who did observe the proceedings; and there was a record made of the proceedings that does not indicate any basis for concern, other than the closure itself.” Slip op. at 15. Additionally, there was no suggestion of any misconduct or impropriety of any of the jurors, the judge, or any other party. Finally, there was strong evidence of the defendant’s guilt and Weaver did not provide any “sense of a reasonable probability of a different outcome but for counsel’s failure to object.” Slip op. at 14. The defendant was not entitled to a new trial.

In a concurring opinion, Justice Thomas, joined by Justice Gorsuch, noted his willingness to reconsider the Supreme Court’s per curiam opinion in Presley. In a dissenting opinion, however, Justice Breyer, with whom Justice Kagan joined, expressed concern with ranking structural errors in terms of egregiousness and noted that the Court’s framework ignores the fact that the public trial right is indeed impossible to measure, which means that a defendant would never be able to meet that showing. Justice Breyer would not impose that impossible burden.

Responding in part to the dissent’s concern, in reaching its conclusion the majority opinion expressly recognized the corollary concern that “an ineffective assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, thus undermining the finality of jury verdicts. For this reason, the rules governing ineffective assistance claims must be applied with scrupulous care.” Slip op. at 14, internal quotation marks omitted. Applying these principles, Weaver concludes that an unpreserved Sixth Amendment public trial violation, in the context of jury selection procedures, does not result in automatic reversal of a defendant’s conviction. The Supreme Court’s decision thus resolves the framework that applies to the numerous Massachusetts convictions resulting from trials prior to the Owens and Presley decisions where the public had been excluded, without objection, from the jury selection process. The disagreement over this important issue has been settled.

Bethany Stevens is the Director of Legal Policy and Deputy General Counsel to the Administrative Office of the District Court, and is a member of the BBA’s Criminal Law Section Steering Committee. Previously, she served as the Deputy Chief of the Middlesex District Attorney’s Appeals Bureau where she litigated closed courtroom claims at the trial level as well as at the Appeals Court and Supreme Judicial Court.

We Are Family: Partanen v. Gallagher Applies Chapter 209C to Protect Children of Never-Married LGBTQ Families

mehta_tejalby Patience Crozier

Case Focus

Nothing is more important in the life of a child than the security of their parental relationship.  The parent-child relationship is foundational and the source of love, emotional and material support.  The recent Supreme Judicial Court (SJC) case Partanen v. Gallagher­, 475 Mass. 632 (2016), addressed the security of a previously vulnerable class of children – the children of never-married non-biological parents – and clarified that the Massachusetts parentage statutes ensure their equal access to legal parentage.

The facts of the case were representative of those many families in the Commonwealth and beyond.  Two women, Karen Partanen and Julie Gallagher, were in a committed relationship.  They planned together to have children and, with mutual involvement and consent, Ms. Gallagher conceived via assisted reproduction using donor sperm and gave birth to two children.  Ms. Partanen was present at both births, and together the couple cared for the children, made mutual decisions to further their well-being, and held themselves out to family, friends and institutions such as schools and health care providers as a family.  The couple did not marry or complete co-parent adoptions.  Shortly after they moved back to the Commonwealth from Florida, the couple’s relationship ended. Ms. Partanen filed two actions to secure the children’s rights to continue their relationships with her, one to establish de facto parentage, and later, another to establish full legal parentage under G. L. c. 209C, arguing that Ms. Partanen is a presumed parent under the statute.  The trial court dismissed the legal parentage action, holding that Ms. Partanen could not seek parentage under Chapter 209C because of her lack of biological connection to the children. Ms. Partenen appealed and the SJC took the case on direct appellate review.

Section 6(a)(4) of Chapter 209C provides that “a man is presumed to be the father of a child” if “he, jointly with the mother, received the child into their home and openly held out the child as their child.”  To establish herself as a presumed parent under that provision, Ms.  Partanen first had to allege that the children were born to parents who are not married to each other and, second, that she satisfied the “holding out” provision of the statute, which requires proof that she, jointly with the birth mother, received the children into their home and openly held them out as their own.  Ms. Gallagher maintained that Ms. Partanen could not be a presumed parent because she had no biological connection to the children.  Ms. Partanen disagreed, arguing that her complaint sufficiently alleged that she was a presumed parent under the statute.

The SJC closely examined the plain language of G.L. c. 209C, § 6(a)(4).    The main question was whether Ms. Partanen could establish herself as a presumed parent without any biological relationship to the children.  In analyzing § 6(a)(4), the SJC reiterated the familiar rule that statutes must be read in gender-neutral terms. The Court concluded that the statute’s plain language applies to children born to same-sex couples who lack biological ties with their children.  Because no statutory language required a biological connection between parent and child, the Court declined to read into the statute such a requirement, particularly when doing so would undermine the statute’s purpose by making this class of children more vulnerable.  The SJC further noted that insofar as a father may validly execute a voluntary acknowledgment of parentage absent a biological relationship, same-sex parents must be able to do the same. The Court reasoned that lack of a genetic tie cannot rebut the presumption of parentage when the parentage claim is not based on a genetic tie.  Numerous other state courts have interpreted similar statutory provisions to allow the establishment of parentage in similar circumstances, including California, Colorado, New Hampshire and New Mexico.

Turning to the facts of this case, the Court concluded that Ms. Partanen adequately alleged parentage under the statute.  The SJC held that she met the two-step test articulated in § 6(a)(4) because she and Ms. Gallagher created a family together with shared involvement, consent and intention, satisfying the requirement that the children were “born to” them.  Ms. Partanen also adequately alleged that she “received the child into their home and openly held out the child as their child” in her assertions that they lived as a family, actively cared and made decisions together for the children, and represented themselves to others as their parents.

The implications of Partanen are far-ranging. It is now clear that non-marital same-sex couples can execute voluntary acknowledgments of parentage in the hospital at birth, the key administrative route for establishing a non-marital parent-child relationship and one that saves families the expense and delay of establishing parentage through the court system.  Further, these parents can also seek an adjudication of parentage in the courts under G. L. c. 209C, § 6(a)(4), a clear and established means of asserting parentage that is more affordable, accessible and reflective of the family’s reality than de facto parent litigation. Finally, never-married, non-biological parents may now be able to receive counsel and participate in child welfare and juvenile court proceedings regarding their children.  A class of parents previously cut out of involvement and decision-making in their children’s lives can now access the full range of protections of legal parentage.  Partanen also further highlights the great diversity of families in the Commonwealth, where legal parentage can arise from marriage, adoption, genetic ties and through conduct.  Partanen represents a major step forward in ensuring security and equality for all children.

Patience Crozier served on the team of appellate attorneys for Karen Partanen along with co-counsel Mary L. Bonauto, Elizabeth Roberts and Teresa Harkins La Vita.  Amici in support of Ms. Partanen’s legal arguments indicate the depth and breadth of support for her position.  Amici included the Attorney General of Massachusetts, Greater Boston Legal Services, Children’s Law Center, Massachusetts LGBTQ Bar Association, Women’s Bar Association of Massachusetts, Community Legal Aid, Carolyn Famiglietti, Maureen McBrien, Massachusetts Bar Association, American Academy of Assisted Reproductive Technology Attorneys, Boston IVF, Fenway Health, IVF New England, New England Fertility Society, Path2Parenthood, Resolve: The National Infertility Association, Resolve New England, and Forty-two Law Professors.

Cardno Chemrisk v. Foytlin: Supreme Judicial Court Holds that Anti-SLAPP Law Protects Opinion Writing

pyle_jeffby Jeffrey J. Pyle

Case Focus

Anyone who has litigated a special motion to dismiss under the Massachusetts anti-SLAPP law knows they are typically won or lost on the question of whether the suit is based on “petitioning” activity. Passed in 1991 to protect citizens from “strategic lawsuits against public participation,” the anti-SLAPP law, G.L. c. 231, § 59H, provides that if a plaintiff brings a lawsuit based on the defendant’s exercise of its constitutional right to petition, the trial court must dismiss the action—and award attorneys’ fees—unless the plaintiff proves that the defendant’s petitioning was devoid of legal or factual merit and that the plaintiff suffered damages. Proof that petitioning activity is “devoid” of merit is difficult for a plaintiff to assemble at the pleadings stage, so the fight usually centers on the first part of the analysis: whether the activity in question was in fact “petitioning.”

The Supreme Judicial Court (“SJC”) has repeatedly held that the anti-SLAPP statute applies only to parties who seek redress of grievances of their own or otherwise petition on their own behalf, not to those who air the grievances of others.  However, in the recent case of Cardno Chemrisk v. Foytlin, 476 Mass. 479 (2017), the Court softened that rule, extending protection to opinion writing that addresses subjects of broad political and social concern.

The defendants in the case, Cherri Foytlin and Karen Savage, are environmental activists concerned about the effects of contamination from the Deepwater Horizon oil rig spill on the Gulf Coast and on cleanup workers. On October 13, 2013, they published an article in the Huffington Post about ongoing federal litigation against British Petroleum (“BP”) in Louisiana, in which BP asserted that only a minimal amount of oil escaped as a result of the explosion of the rig. In their article, Foytlin and Savage state that BP “does not exactly have a reputation for coming clean on the facts surrounding the disaster,” and they held up as an example a report written for BP by Cardno ChemRisk, LLC (“ChemRisk”), a scientific consulting firm, which concluded that cleanup workers had not been exposed to harmful levels of certain chemicals. Foytlin and Savage disputed ChemRisk’s independence and stated that it had “a long, and on at least one occasion fraudulent, history of defending big polluters, using questionable ethics to help their clients avoid legal responsibility for their actions.” ChemRisk sued the pair for libel.

In their anti-SLAPP motion to dismiss ChemRisk’s suit, Foytlin and Savage argued that their article was written in connection with pending court proceedings, and therefore met the statute’s definition of “a party’s exercise of its right of petition.” The Superior Court acknowledged that the defendants were activists and that they “wrote and posted the article as part of their work to influence ongoing governmental proceedings and court cases,” yet denied their motion on the ground that the article addressed the grievances of only the cleanup workers, not those of Foytlin and Savage themselves. The Superior Court relied on a line of cases denying protection to those not seeking redress of “grievance[s] of [one’s] own”—in  particular, Fustolo v. Hollander, 455 Mass. 861 (2010), which upheld the denial of an anti-SLAPP motion by a journalist who had written objective news stories about a controversial development project because the stories were not written to advocate her own point of view.

On direct appellate review in Cardno Chemrisk, the SJC reversed, declining to extend the reasoning in Fustolo to the case against Foytlin and Savage. It would take “a constrained view” of the First Amendment petitioning right, the Court held, to deny protection to environmental activists sued for publishing an opinionated news article about environmental devastation against the backdrop of pending court proceedings. Citing Town of Hanover v. New England Reg’l Council of Carpenters, 467 Mass. 587, 594 (2014), the Court held that the anti-SLAPP law, “like the constitutional right it safeguards, protects those looking to ‘advance[e] causes in which they believe,’” including the cause of protecting the environment. The Court distinguished Fustolo by explaining that the journalist there had been “employed to write, and did write, impartial news articles, despite having personal views on the same subjects,” and her “objectivity was pivotal to the decision insofar as the reporter was not exercising her own constitutional right to petition when authoring the challenged articles.” That was not the case with Foytlin and Savage, whose personal views were reflected clearly in their article.

The Cardno Chemrisk decision is welcome news for writers of blogs, op-eds and letters to the editor about issues before government bodies. Such publications are now protected if they espouse the author’s “personal views,” even if they are not intended to protect the writer’s own “private rights.” However, the SJC did not articulate a test to determine whether writing is opinionated as opposed to “impartial” and “objective” news reporting—concepts that may have less of an agreed-upon meaning now than at any time in modern history. One can only guess, for example, how the SJC would rule in a case about a muckraking investigative article that presents hard facts in a manner obviously intended to make a case for government reform, but that does so without overtly stating that the author is presenting “personal views.”

The Cardno Chemrisk decision also raises questions about the scope of protection afforded to professionals, including lawyers and experts, who assist the petitioning activities of others. In an earlier decision, Kobrin v. Gastfriend, 443 Mass. 327 (2005), the SJC denied anti-SLAPP protection to a physician expert testifying for the government in a regulatory proceeding because he was not petitioning on his own behalf. The Cardno Chemrisk court distinguished Kobrin on the ground that the physician was acting as a mere “vendor of services” who had a “merely contractual” relationship to the issues in the case—unlike Foytlin and Savage, who were advancing a cause in which they believed. Yet the Court previously indicated that attorneys who represent parties petitioning the government must be protected by the anti-SLAPP law—despite their status as mere “vendor[s] of services”—lest their exclusion cause a “chilling effect” on petitioning. Cadle Co. v. Schlichtmann, 448 Mass. 242, 252 (2007). Clarification of this issue, and of the scope of petitioning rights more generally, will have to await future cases.

Jeffrey J. Pyle is a partner in the Media and First Amendment Law Practice Group at Prince Lobel Tye in Boston, Massachusetts. Along with Thomas Sutcliffe of Prince Lobel and Sarah Wunsch of the American Civil Liberties Union of Massachusetts (ACLUM), Jeff submitted an amicus brief in Cardno Chemrisk v. Foytlin on ACLUM’s behalf.  

Commonwealth v. Lawson and Commonwealth v. Griffin: Recent Changes in Criminal Responsibility and the Presumption of Sanity

lyons_crystalby Crystal L. Lyons

Case Focus

This past fall, without much portent, the Supreme Judicial Court (“SJC”) created a seismic shift in the law of criminal responsibility when it eliminated the “presumption of sanity” in Commonwealth v. Lawson, 475 Mass. 806 (2016). As a result, the presumption of sanity will no longer carry the Commonwealth’s burden of proof and may no longer be considered as evidence of sanity. In fact, juries will no longer even receive an instruction on the presumption of sanity. Id. at 807, 814-815 & n.8. This article addresses Lawson’s explicit guidance, analyzes its application just a week later in Commonwealth v. Griffin, 475 Mass. 848 (2016), and anticipates the questions that both cases implicitly left open.

Before Lawson, when a question of the defendant’s criminal responsibility was raised, courts were required to instruct juries that they may consider that, because a great majority of persons are sane, there was a resulting likelihood that the defendant was sane. Lawson, 475 Mass. at 815 & n. 8. In Lawson, however, the SJC announced that rather than a true legal presumption, the “presumption” of sanity is instead “merely an expression” of the “commonsense understanding” that a defendant is probably sane because most people are sane.

In Lawson, the SJC recast a defendant’s lack of criminal responsibility as an affirmative defense, akin to self-defense. As an affirmative defense, the defendant must first proffer “some evidence” that, “viewed in the light most favorable to the defendant, would permit a reasonable finder of fact to have a reasonable doubt whether the defendant was criminally responsible at the time of the offense.” Id. at 807, 811. After doing so, “the Commonwealth bears the burden of proving beyond a reasonable doubt that the defendant was criminally responsible.” Id.

Although the SJC appeared to anchor its decision in established precedent, Lawson breaks new ground and will have significant effects in the future. For example, Lawson cited Commonwealth v. Keita, 429 Mass. 843 (1999), for the proposition that the Commonwealth already bore the burden of proving that the defendant was criminally responsible. Previously, however, the Commonwealth’s burden was usually a mere formality where the presumption of sanity alone was sufficient to overcome a challenge. See Lawson, 475 Mass. at 813; cf. Commonwealth v. Vives, 447 Mass. 537, 540 (2006) (characterizing mental illness as a hindrance to the defendant’s ability to form a specific intent rather than as an affirmative defense). Now, however, to prove criminal responsibility, the Commonwealth must establish either:

1)       That at the time of the alleged crime, the defendant did not suffer from a mental disease or defect; or

2)       That if the defendant did suffer from a mental disease or defect, he nonetheless retained the substantial capacity to appreciate the wrongfulness or criminality of his conduct and to conform his conduct to the requirements of the law.

Griffin, 475 Mass. at 856 (citing Model Jury Instructions on Homicide 10 (2013)).

The Commonwealth can establish the defendant’s mental capacity at the time of the offense through either circumstantial or medical evidence. Lawson, 475 Mass. at 815-817. The types of circumstantial evidence that can support the inference of sanity are already well-known from prior cases. They include: the circumstances of the offense; efforts to plan the offense; a rational motive to commit the offense; rational decisions made proximate to the offense; efforts to avoid capture; attempts to conceal the offense or the defendant’s role in the offense; words and conduct before, during, and after the offense; and evidence of malingering. Id. “Where, however, this [circumstantial] evidence provides only weak support for a finding of criminal responsibility,” the Court made clear that “the Commonwealth proceeds at its peril if it chooses to offer no expert to rebut a defense expert’s opinion of lack of criminal responsibility.” Lawson, 475 Mass. at 817. Medical evidence is typically presented through expert testimony.

Even though criminal responsibility is not an element of any offense, because the Commonwealth bears the burden of presenting sufficient evidence for a rational fact-finder to find criminal responsibility, a defendant may now seek a required finding of not guilty on the ground that the Commonwealth presented insufficient proof. Id. at 812. A motion for a required finding on that basis can be raised only at the close of all evidence, however, because practically speaking, evidence of such a defense is typically first offered during the defense’s case, after which the Commonwealth is permitted a full opportunity to rebut any such defense. Id. at 816-817. The circumstantial evidence of sanity described above is generally sufficient to overcome a motion for a required finding except when a defense expert’s view of the evidence shows the Commonwealth’s argument for sanity to be “incredible or conclusively incorrect.” Id. at 817-818.

Just six days after deciding Lawson, the SJC applied its new framework in Griffin. Although the Court affirmed the defendant’s first degree murder conviction for killing his young daughter, in analyzing whether the Commonwealth had met its burden of proving criminal responsibility, the Court first highlighted the Commonwealth’s lack of medical expert testimony. Griffin, 475 Mass. at 855-856. This is noteworthy not only because the defendant had not presented an expert (though he had secured funds to hire one) but also because the circumstantial proof of sanity appeared overwhelming. The Commonwealth’s evidence in Griffin mapped perfectly onto the categories identified in Lawson. It showed that the defendant: acted normally in the days leading up to the killing; before the crime, prepared a last will and testament and left a note at his home apologizing for his “sins” and asking for God’s mercy; had a strong motive for the killing, which he had discussed with others; carefully planned the killing, including assembling all the necessary materials, choosing to walk to minimize the sound of his approach, turning off the electricity to the house and taking off his shoes upon his arrival to reduce the chance of being discovered, and cutting telephone lines to eliminate calls for help; and methodically cleaned the basement crime scene and repacked his materials after the murder. Id. at 856-857. The defendant’s only evidence of lack of criminal responsibility consisted of self-serving pre-trial statements in which he had claimed that God told him to commit the murder (even though there was no indication he was deeply religious or possessed religious materials) and had described the severity of his mental illness (descriptions which were proven by evidence at trial to be overstated). Id. at 857. By highlighting the Commonwealth’s absence of a prosecution expert in these circumstances, Griffin raises the question whether the prosecution should consider using an expert even in the cases that seem to least warrant one.

The Court clarified that a prosecutor may properly address in closing argument the inferences to be drawn from circumstantial evidence and inconsistencies in the defendant’s evidence as that evidence bears on criminal responsibility; in so doing, he or she “does not testify as an unqualified expert witness.” Id. at 860. The Court also clarified that Lawson’s elimination of the instruction on the presumption of sanity was not merely a prospective change. The Court concluded that the instruction had been erroneously provided in Griffin, but that it had not created a substantial likelihood of a miscarriage of justice where “the trial judge strongly and specifically instructed that the burden is on the Commonwealth to the prove criminal responsibility beyond a reasonable doubt” and where “substantial evidence” supported the jury’s finding of criminal responsibility. Id. at 862-863.

Although Lawson’s and Griffin’s affirmation of the convictions might suggest it will be business-as-usual in criminal responsibility cases despite the Court’s shift, the cases raise several important questions. First, what quantum of proof will be necessary for a defendant to sufficiently raise “some evidence” of a criminal responsibility defense, particularly if the defendant presents no direct medical evidence or testimony (whether because expert testimony cannot be secured or perhaps because no previous treatment or diagnosis exists) and relies solely on arguably self-serving statements to sustain the defendant’s burden of production? Second, under what circumstances may a defense expert’s testimony show the Commonwealth’s evidence to be “incredible or conclusively incorrect” and thereby insufficient to overcome a motion for a required finding of not guilty? One can imagine a situation in which an expert testifies that the inferences argued by the Commonwealth are invalid given the defendant’s diagnosis and that the circumstantial evidence presents normal or expected symptoms of the claimed mental illness. Finally, what differences may exist between sufficient evidence to sustain the Commonwealth’s burden of proof of criminal responsibility under the familiar Latimore standard—viewing all evidence and resolving all inferences in favor of the Commonwealth—and what may be necessary to establish “substantial evidence” of criminal responsibility in pre-Lawson cases where the presumption of sanity instruction has already been provided?

The Commonwealth will need to evaluate carefully whether to call an expert in any case that raises a potential criminal responsibility defense. Despite the Court’s assurances in both cases that “the Commonwealth need not offer expert testimony in every case,” Lawson, 475 Mass. at 807; Griffin, 475 Mass. at 855-856, the SJC highlighted in Griffin the lack of an expert for the Commonwealth. That the Court would do so in a case with overwhelming circumstantial evidence of sanity—and no defense expert testifying to the contrary—suggests that the cautious approach for the Commonwealth to avoid the possibility of reversal will be to call a prosecution expert nonetheless. Lawson, 475 Mass. at 817.

Crystal L. Lyons is an Assistant District Attorney in the Appeals & Training Bureau of the Middlesex District Attorney’s Office, where she also serves as Captain of the Mental Health Team.  She is a member of the BBJ Board of Editors. This article represents the opinions and legal conclusions of its author and not necessarily those of the Middlesex District Attorney’s Office.

The SJC Affirms Expanded Access to Justice in DNA Testing Case

ricciuti_mikeparker_kathleenmccooe_patrickby Michael Ricciuti, Kathleen Parker and Patrick McCooe

Case Focus

On July 29, 2016, the Supreme Judicial Court decided Commonwealth v. Wade, 475 Mass. 54 (2016), which defined the reach of the DNA testing statute, General Laws Chapter 278A, enacted in 2012.  Wade presented two key issues.  First, could Wade obtain post-conviction DNA testing under Chapter 278A by demonstrating that the requested scientific/technical analysis had not yet been developed at the time of conviction without also proving the primary reason that DNA testing was not pursued at the time of trial?  Second, by filing a request for DNA testing under Chapter 278A, did Wade waive the attorney-client privilege over his communications with trial counsel about DNA testing, thus permitting the judge hearing his Chapter 278A motion to require Wade’s trial lawyer to testify about those privileged communications?  The SJC decided both issues in favor of Wade.  In doing so, the SJC ensured that Chapter 278A would fulfill the legislature’s purpose of making DNA testing more readily available to those convicted of crimes who assert their innocence.


In 1997, Robert Wade was convicted of felony-murder where the underlying felony was aggravated rape.  Wade did not seek DNA testing at the time of trial.  When the Legislature enacted Chapter 278A in 2012, Wade promptly filed a motion under the new law (the “278A motion”) seeking post-conviction DNA testing of some physical evidence introduced at his trial.

The Legislature promulgated Chapter 278A “to remedy the injustice of wrongful convictions of factually innocent persons by allowing access to analyses of biological material with newer forensic and scientific techniques.”  Wade, 475 Mass. at 55.  Chapter 278A allows a person who has been convicted of a crime and who claims that he or she is factually innocent of the offense to seek forensic or scientific testing, including DNA testing, of evidence or biological material.  To succeed, the movant must show that (1) the requested analysis would be admissible in court, (2) the analysis has the potential to result in evidence material to the person’s identification as the perpetrator of the crime, and (3) the evidence or biological material has not been subjected to the requested analysis on account of one of five grounds outlined in Section 3(b)(5) of Chapter 278A.  Those grounds are:

(i) that the requested analysis had not been developed at the time of the conviction;

(ii) that the results of the requested analysis were not admissible at the time of the conviction;

(iii) that the movant and his or her trial attorney were not, and had no reason to be, aware of the existence of the evidence or biological material at the time of the underlying case or conviction;

(iv) that the movant’s trial attorney was aware of the evidence, the results of the requested analysis were admissible at the time of trial, a reasonably effective attorney would have requested the analysis, and either the movant’s attorney failed to do so or the court denied the request; or

(v) that the evidence or biological material was unavailable at the time of the conviction.

Under Section 7(b) of Chapter 278A, the court “shall” allow the requested analysis if the movant shows, among other things, that DNA testing had not been performed “for any of the reasons” enumerated in Section 3(b)(5).

In an earlier appeal of an order denying Wade’s 278A motion at a preliminary stage of review (Commonwealth v. Wade, 467 Mass. 496 (2014)), the SJC concluded that Wade had adduced enough information in the motion to meet the law’s threshold requirements and remanded the case to the trial court for an evidentiary hearing to determine, among other things, whether Wade could establish one of the five Section 3(b)(5) grounds enumerated above.  Wade, 475 Mass. at 57-58.  In the proceedings on remand, which led to the 2016 SJC decision, Wade initially claimed that two of the Section 3(b)(5) grounds entitled him to DNA testing: first, the requested analysis had not been developed at the time of the conviction (the “undeveloped analysis” argument) and, second, Wade’s trial lawyer had not sought DNA testing and a reasonably effective lawyer would have done so (the “reasonably effective attorney” argument).

Before the hearing on remand, the Commonwealth moved for leave to examine Wade’s trial counsel on the question of whether a “reasonably effective attorney” would have sought the requested testing at the time of trial.  Wade opposed such testimony, asserting his attorney-client privilege.  The trial court allowed the Commonwealth’s motion.  Wade petitioned for relief before a single justice, who determined that examination of Wade’s trial counsel could proceed if trial counsel could testify “without revealing attorney-client communications.”

At the hearing on the 278A motion, the Commonwealth examined Wade’s trial lawyer.  Wade again objected on privilege grounds.  When Wade’s privilege objection was overruled, Wade waived his claim under the reasonably effective attorney prong and proceeded solely on the undeveloped analysis argument.  Despite Wade’s abandonment of the reasonably effective attorney argument, the Commonwealth questioned Wade’s trial counsel about privileged pre-trial conversations with Wade concerning the reason for not pursuing DNA testing, arguing that even when a movant like Wade seeks relief solely on the undeveloped analysis argument, the “actual reason that the evidence was not tested” must be adduced, which can be done through the questioning of trial counsel.  Wade, 475 Mass. at 59.

The motion judge agreed with the Commonwealth and required Wade’s trial counsel to reveal the substance of his pre-trial conversations with Wade about the crime and the wisdom of seeking DNA testing.  The judge denied Wade’s subsequent motion to strike the privileged testimony and ultimately relied on that testimony, in part, to reject Wade’s request for DNA testing.  Even though the motion judge found that Wade was correct that the requested analysis had not been developed at the time of conviction, the court rejected the claim that this was enough to satisfy Section 7(b).  Rather, the judge concluded that “the proper inquiry” under Section 7(b) is “‘what was the primary “reason,” i.e., the primary cause, why the material was not previously subjected to the requested analysis.’”  Wade, 475 Mass. at 59 (quoting the trial court).  Although the motion judge found that Wade was correct that more sophisticated DNA tests were available in 2014 than were available at the time of trial, he concluded that the absence of such precise testing was not the “primary” reason Wade didn’t request a DNA test at that time.  Instead, despite the fact that Wade had abandoned his argument under the reasonably effective attorney prong, the motion judge concluded that the primary reason DNA testing was not sought at trial was because a reasonably effective attorney would not have sought the requested analysis under the circumstances and, thus, Wade had not satisfied this Section 3(b)(5) factor.

The Appeal

On appeal to the SJC, Wade argued that he had satisfied Chapter 278A’s requirements and that the Superior Court had improperly intruded upon his privileged attorney-client communications.  The BBA, which had advocated for the statute’s passage, agreed and filed an amicus brief in support of these arguments.

As to Chapter 278A, Wade argued that the motion judge misread the statute and that the showing Wade had made – namely, that the requested analysis had not been developed at the time of the conviction – was enough by itself to satisfy the requirements of Section 3(b)(5).  The trial judge erred, Wade argued, by requiring Wade to establish the primary cause for not pursuing testing at the time of trial.  Because the sole issue was why the evidence had not been subjected to the analysis requested in the 268A motion (which did not exist at the time of trial), Wade argued that it was irrelevant why his counsel did not seek a prior form of DNA testing at the time of trial and whether not seeking such testing was a reasonably effective strategy.  Furthermore, Wade had expressly abandoned his reasonably-effective attorney argument, making any inquiry of his trial counsel irrelevant.  Wade asserted that the trial court’s mistaken reading of Chapter 278A increased the burdens on a person seeking DNA testing under Chapter 278A on an undeveloped analysis claim by requiring a movant to place privileged communications with trial counsel at risk, thereby undercutting the legislative purpose to reduce the barriers to DNA testing.  On the issue of privilege, Wade argued that requiring Wade’s trial counsel to reveal highly confidential, attorney-client communications was a grave error, as there was no express or implied waiver of the privilege by Wade under the facts of this case and none required under Chapter 278A itself.

The SJC’s Decision

The SJC agreed with both of Wade’s core arguments.

The SJC found that the Legislature’s goal in enacting Chapter 278A was “to remedy the injustice of wrongful convictions of factually innocent persons by allowing access to analyses of biological material with newer forensic and scientific techniques . . . [to] provide a more reliable basis for establishing a factually correct verdict than the evidence available at the time of the original conviction,” that Wade’s satisfaction of the undeveloped-analysis prong of Section 3(b)(5) alone was enough to merit relief under the statute and that the motion judge erred by requiring Wade to also show that this reason was the primary reason trial counsel did not seek DNA testing.  Wade, 475 Mass. at 55.

The SJC found that a plain reading of Chapter 278A demonstrated that any one of the reasons enumerated in Section 3(b)(5) sufficed to satisfy the statute, as “[t]he language of the act plainly indicates the Legislature’s intent to provide a moving party with a choice among several, distinct reasons advanced by the moving party to explain why the material had not been previously subjected to the requested testing.”  Wade, 475 Mass. at 61.  As a result, there was no need for Wade to also show what a reasonably effective lawyer would have done.

The SJC also rejected the motion judge’s finding that a movant, in addition to proving one of the Section 3(b)(5) grounds, must also establish the “primary” or “actual” reason testing was not conducted at the time of the original prosecution.  It found nothing in the act to suggest that the Legislature sought to impose such a burden on movants.  The fact that the now-requested analysis did not exist at the time of Wade’s trial, alone, was enough to support Wade’s request.  The SJC also noted that its 2014 Wade decision had foreclosed the argument that a party would be precluded from obtaining DNA testing under Chapter 278A if his or her trial counsel made a strategic choice not to seek DNA testing.  Because even the reasonably effective attorney inquiry was objective, the actual reason a movant’s trial lawyer did not seek testing was irrelevant the analysis of any of the factors under Section 3(b)(5).

As to the privilege issue, the SJC rejected the Commonwealth’s contention that seeking a DNA test under Chapter 278A necessarily waives a movant’s attorney-client privilege with his or her trial counsel.  Certainly, Wade’s reliance on a wholly objective ground – whether the requested DNA analysis existed at the time of his trial – did not put at issue any privileged attorney-client communications.  Perhaps more significantly and as noted, the SJC found that even in cases where a party relies on the reasonably-effective-attorney prong, “that inquiry is also objective, and therefore does not require testimony or an affidavit from trial counsel.”  Wade, 475 Mass. at 65.  Finally, and regardless of the Section 3(b)(5) prong relied on, the 278A movant is not required to establish the “real” or “primary” reason testing was not sought at the time of trial, and thus it is error to invade the privilege in pursuit of that inquiry.  Because Wade had not effected an “at issue” waiver by filing his petition, the SJC concluded that the trial court should have allowed Wade’s motion to strike all privileged communications disclosed by trial counsel.


The SJC’s decision in Wade restored the goal of Chapter 278A – to make DNA testing more readily available to convicted persons than it had been.  Further, its clear rejection of the claim that filing a 278A motion necessarily waives the attorney-client privilege with trial counsel eliminates a major impediment to convicted persons seeking relief under Chapter 278A and prevents an improper invasion into the privilege.

Michael D. Ricciuti is a partner at K&L Gates where he co-leads K&L Gates’ global Government Enforcement practice.  He is a member of the Boston Bar Association’s Council and Steering Committee for the Criminal Law Section and previously served as Secretary of the Boston Bar Association. 

Kathleen D. Parker is an associate at K&L Gates where her practice focuses on complex civil litigation, internal investigations, and government enforcement.

Patrick C. McCooe is an associate at K&L Gates where he concentrates his practice in government enforcement, white collar criminal defense, and complex civil litigation.

The authors drafted and filed the BBA’s amicus brief on behalf of Wade before the Supreme Judicial Court.