The Value of Diversity and Inclusion for Our Legal Community

by Lisa Goodheart

President’s Page

I recently attended a conference on diversity and inclusion and the future of Boston law firms in a global economy.  The event, which was ably organized by Macey Russell, Co-Chair of the BBA’s Diversity & Inclusion Section, was well-attended, and the discussion was lively and constructive, with a panel of impressive and thoughtful speakers and active participation by an engaged audience.  But the issue of diversity and inclusion within the Boston legal community remains a problematic one, and progress has been painfully slow.

Recent statistics reflect a disappointing reality.  For example, NALP recently reported that among all firms and offices listed in its nationwide 2011-2012 NALP Directory of Legal Employers, just 6.56% of partners were racial or ethnic minorities, and just 2.04% of partners were minority women.  About 29% of the firms or offices reported no minority partners at all, and 57% reported no minority women partners.  The reported numbers for associates were not much better – over 17% of the firms or offices reported no minority associates, and over 27% of offices reported no minority women associates.  NALP’s numbers for openly gay, lesbian, bisexual and transgender lawyers also remain relatively low, with 1.44% of partners and 2.43% of associates at the reporting firms and offices being openly LGBT lawyers, as of 2011.

Looking to Boston-specific numbers does not provide a more comforting perspective.  As reported by NALP, the percentages of diverse partners and associates remain lower in Boston than in many other major cities.  For the 2011-2012 reporting cycle, just 3.21% of partners were minorities, and just 1.01% were minority women.  Over 48% of the reporting Boston firms and offices had no minority partners, and over 74% had no minority women partners.  Over 11% had no minority associates and nearly 23% had no minority women associates.  (City-specific statistics for LGBT lawyers are not included in the available NALP reports.)

How should we respond to this state of affairs?  One refrain that is frequently heard is the need for better education about the “business case” for diversity and inclusion.  In a nutshell, the business case for diversity rests on the premise that as our economy becomes more global in nature, significant corporate clients are themselves becoming more diverse and inclusive, as they serve an increasingly diverse customer base and answer to an increasingly diverse shareholder base.  It follows that the law firms best positioned to serve these increasingly diverse corporate clients will be those that are able to offer correspondingly diverse teams of legal talent.  Law firms should therefore pursue diversity within their ranks to gain a competitive edge.

Certainly, it’s logical to think that appealing to the self‑interest of law firms and other law offices might be the most persuasive way to get them to make a more serious, intense and sustained commitment to the recruitment, development, support and retention of more diverse lawyers.  But does the business case for diversity really provide the most productive way for us to think about this issue?  It is by now a familiar argument, and it has not succeeded to date in producing a true sea change in law firm demographics.  The status quo has proven to be a remarkably stubborn thing.

At the BBA’s Law Day dinner in May, Harvard professor Michael Sandel spoke to us about what he calls the moral limits of markets, and what money can’t buy.  Professor Sandel highlighted the degree to which economic analysis has permeated virtually all spheres of modern life, with sometimes pernicious and counter intuitive effects.  Sometimes, he suggested, things have a non-monetizable value, and the relentless drive to convert our values into marketplace terms can have a corrupting effect that paradoxically undermines that value.  In terms of diversity within our profession, perhaps we need to acknowledge that a robustly diverse and inclusive Boston legal community is one of the inherently valuable things that are worth pursuing for reasons that are not rooted in concerns about market share or enhancing profitability.

At the BBA, the investment in fostering a more diverse and inclusive legal profession is manifested in many ways.  It is embodied in our partnerships with various affinity bar associations, in the annual BBA Beacon Award for Diversity and Inclusion, and in the establishment of the Diversity and Inclusion Section for our members.  It is reflected in initiatives such as the Mentoring Program, the BMC Internship Program, other pipeline and recruitment work with area law schools and the Boston public schools, and events like the above-mentioned conference.  What lies behind this investment of effort?  No doubt, these programs and initiatives are pursued in part because they are attractive to the BBA’s members, potential members and sponsor organizations.  In that respect, they are part of the BBA’s own “business case.”  But the driving impulse behind theBBA’s commitment to diversity and inclusion is something much more fundamental.

The true motivation for the BBA’s emphasis on diversity and inclusion, in my view, is – and should be – that we are inspired to build the kind of legal community that we want to be a part of and are proud to claim as our own.  The BBA is an organization of members who choose to come together, not only for reasons of professional self-interest, but also to advance the causes and promote the values we collectively care about, and to find the professional fulfillment and personal satisfaction that comes from doing so.  Those values include justice, equality and opportunity.  A profession with a homogeneous and exclusionary demographic profile is simply not consistent with those values.

Achieving a substantially greater degree of diversity and inclusion is hard, subtle, time‑consuming work.  Of course, if it were easy, it would have already been accomplished by now.  But lawyers relish hard problems and are relentless in pursuing solutions.  And I am confident that we will collectively muster the resourcefulness and creativity to do much better.  Ultimately, the reward for doing so will be the greater strength, energy and richness of a legal community that all of us fully claim as our own.

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Merger Litigation: Coming to a Deal Near You

By Matthew C. Baltay

Legal Analysis

Shareholder litigation challenging mergers has become so ubiquitous that one observer has remarked that “[i]t’s one of the three inevitables: death, taxes and deal litigation.”[1]  Indeed, over 90% of all public company mergers with a value of $100 million or more result in shareholder litigation today.  While not as active a forum as Delaware or California for these cases, Massachusetts nevertheless is a top-six contender for merger litigation because of its relatively robust public market base.  This article provides an overview of the rise of merger litigation and examines how these cases tend to play out.

The Chances Are

It used to be that the acquisition of a public company, whether by another public company or a private equity group, would generally not result in litigation absent special circumstances such as a hostile takeover or where an unfair deal was being forced on shareholders by insiders who stood to gain.  A leading example is the case of Coggins v. New England Patriots Football Club, Inc., 397 Mass. 525 (1986), wherein public shareholders of the Patriots Football Club filed suit after they were cashed out by the majority owner.  The court found that the “freeze-out merger” did not serve any valid corporate objective but rather was done solely to further the personal financial interests of the majority shareholder.  Historically, approximately one-third of public company acquisitions nationally resulted in litigation.[2]

Beginning in the 2005-2008 period, however, merger litigation exploded.  By 2008, the percentage of public company mergers valued at $100 million or more resulting in shareholder litigation had risen to 48% of all deals.  By 2010, 84% of such deals resulted in litigation and in 2011, 94.2% of all public company takeovers valued at $100 million or more resulted in shareholder litigation.[3]

Primer on Merger Mechanics

Before delving into the nature of merger litigation, it is useful to review the steps to a successful merger.  First, a company decides for whatever reason that it is time to sell, thereby giving rise to the board’s Revlon obligation to secure the best price available.” [4]  Led by its board of directors, the company generally engages in either an auction process seeking bidders or a more targeted search for an appropriate acquirer.  Acquirers tend to be other public companies or private equity firms seeking to take the company private.  At the end of the process, which may take a half year or more, an appropriate partner is identified and the parties negotiate and ink a merger agreement.  Once this is done, usually under the cover of confidentiality, the proposed merger is announced.  Public companies do this by filing an announcement and the merger agreement with the Securities and Exchange Commission.

The company’s deal lawyers then draft the proxy statement, which is the document distributed to shareholders in connection with their requested vote on the merger.  The proxy statement describes the background of the merger, sets forth the details and mechanics of the merger itself, and provides the fairness opinion of the company’s financial advisor regarding the merger.  Generally within weeks of the merger’s announcement, the company files the preliminary proxy statement in draft form with the SEC, thereby affording the SEC the opportunity to comment and request modifications, if any.  Several weeks later, the company files the final, definitive proxy statement and mails it to shareholders.  The definitive proxy statement sets the meeting date for the shareholder vote on the merger, which usually takes place within a month or so.  Assuming the shareholders vote to approve the merger at the shareholder meeting, the deal then closes within a day or two thereafter.

While it used to be the case that this process typically flowed unimpeded by litigation, it is now quite likely that litigation will ensue in the three-month window between announcement of the proposed deal and its anticipated close.

The Litigation

In today’s environment, upon the announcement of a merger, law firms issue press releases and internet posts stating that they are investigating “possible breaches of fiduciary duty and other violations of state law in connection with the sale of the company.”  For example, when the acquisition of Massachusetts-based Zoll Medical was announced on March 12, 2012, more than a dozen law firms announced that day that they had “commenced an investigation into possible breaches of fiduciary duty” by the company’s board of directors.[5]

Next, complaints are filed, often within a matter of days of the initial announcement of the deal,[6] by specific shareholders on behalf of the class of all company shareholders.  The litigation is brought against the board of directors for alleged breaches of fiduciary duty and against both the selling company itself and the acquirer for aiding and abetting the alleged breaches.  The claims are state common law ones filed in state court (with the occasional addition of a federal claim in federal court for the filing of an allegedly materially misleading proxy statement under Section 14(a) of the Securities Exchange Act of 1934).

Complaints tend to allege:

  • That the board of directors breached its duties to the shareholders by selling the company for too low a price;
  • That the directors failed adequately to shop the company;
  • That the directors sold out the shareholders for their own interests, whether in the form of accelerated stock options, golden parachutes or lucrative positions with the acquiring company;
  • That the so-called preclusive deal protection terms found in virtually all merger agreements, including termination fees payable to the acquirer if the seller backs out and exclusive no-shop provisions that prohibit the seller from soliciting further offers, are improper; and
  • That the disclosures made in the proxy statements regarding the merger were inadequate and materially misleading.

It is rare in merger cases that a single complaint is filed.  Instead, multiple complaints are generally filed by different law firms representing different individual shareholders (but on behalf of the same class of company shareholders alleging the same harm).  According to a recent Cornerstone study, five separate lawsuits on average are filed in each merger case.”[7]  As a further complication, half of all challenged deals result in litigation in more than one jurisdiction, with suits filed in the jurisdiction where the target company is incorporated (such as Delaware, where more than 50% of all public companies are incorporated) and in the jurisdiction in which the company is physically headquartered.”[8]

The Course of the Litigation

After the complaints are filed, merger litigation tends to follow a predictable path.  The parties usually agree to consolidate the various cases in each jurisdiction into a single action.  In multi-jurisdictional cases, defendants generally move to stay the litigation in all but one forum in order to avoid active litigation on multiple fronts.  Because of the deal-related time pressure, plaintiffs then typically move for expedited proceedings, seeking court permission to take expedited discovery and to set a condensed schedule for the briefing and hearing on their anticipated motion to enjoin the merger, all within a several-week period.  At this point, defendants face a key decision point:  do they settle (and gain some comfort that the deal will close unimpeded) or do they take their chances and fight.

Disclosure-Only Settlements

More often than not, defendants make a calculated decision that the surest way to close the deal is to settle, and the most common and economical way to settle is for defendants to make supplemental disclosures.  The statistics are that 60% of all merger litigation ends with disclosure settlements (and 95% of settled merger cases involve supplemental disclosures by the company).[9]  The Delaware Chancery Court has described this process, and to some degree criticized it, as the “kabuki dance” of merger litigation, wherein a brief, initial “flurry of activity” gives way to a complete cessation of meaningful litigation and, with repeat players in place, “events unfold on cue.”  In re Revlon, Inc. Shareholders Litigation, 990 A.2d 940, 945-46 (Del. Ch. 2010) (Laster, V.C.).

The steps are straightforward.  Plaintiffs highlight certain disclosure issues that they find most problematic and, as part of a global settlement, the defendants agree to supplement their proxy statement disclosures accordingly.  Recent settlements of Massachusetts merger cases have included, for example, supplemental disclosures regarding additional details surrounding the board’s deliberations during the auction process, the strategic alternatives to auction that the board considered, and further explanation of the methodology employed by the company’s financial advisor in reaching its fairness opinion.  With supplemental disclosures made, plaintiffs take limited “confirmatory discovery” and agree to dismiss the litigation and defendants agree to pay plaintiffs’ attorneys’ fees, all subject to court approval.  Pursuant to the common benefit doctrine, counsel is entitled to an award of fees for securing a class benefit, here enhanced disclosures.  Fees in the $400,000 – $500,000 range are common, and fees stretching into the million dollar range are not unheard of.

Additionally, while commentators criticize disclosure-only settlements as draining cash out of the company to pay counsel while providing little benefit to shareholders, there are examples of merger litigation resulting in tangible monetary benefit to the shareholder base.  Approximately 5% of settled merger cases involve increased payment to the plaintiff shareholders.[10]  The recent Del Monte Foods merger litigation, for example, ended with a payment of $89 million to shareholders.

Resisting Plaintiffs

While the majority of defendants settle merger cases, some opt instead to fight.  There are clear risks and costs to this strategy, however.  Notably, there is the chance that the court might enjoin the merger or delay it long enough for material adverse events to transpire that could threaten the deal.  Nonetheless, defendants have certain opportunities to resist.  First, there is plaintiffs’ motion to expedite, which is fought at the outset.  If plaintiffs lose, they must go into the motion for preliminary injunction without discovery, thereby decreasing their chances of success.  Courts have denied plaintiffs’ motion for expedited proceedings if they view plaintiffs as failing to assert colorable claims and a sufficient possibility of threatened irreparable injury to justify the cost of expedited proceedings.  Second, defendants may oppose the motion for preliminary injunction itself by marshaling the facts and law to demonstrate that plaintiffs cannot establish a likelihood of success on the merits.

Approximately one-third of merger cases end by dismissal without settlement as a result of either court order of dismissal or through voluntary dismissal by plaintiffs after losing these motions.[11]

Merger Litigation In Massachusetts

Massachusetts, while not as busy as Delaware or California in terms of volume of deal litigation, is nevertheless one of the more active jurisdictions in the country by virtue of having a disproportionately large number of public companies located in the state.[12]  Indeed, Massachusetts is the sixth most active state in terms of deal litigation, behind only Delaware, California, Texas, New York and Pennsylvania.[13]

One can discern three general trends with regard to treatment of merger cases by the courts of Massachusetts.  First, Massachusetts courts do not hesitate to stay Massachusetts cases in favor of parallel proceedings elsewhere.  That is, while the Delaware courts will rarely, if ever, stay Delaware merger litigation in favor of merger litigation pending elsewhere, Massachusetts courts seem to lack any such policy and will grant requests to stay Massachusetts merger litigation when parallel litigation is underway elsewhere, particularly where the litigation is governed by the law of another jurisdiction (such as Delaware).

Second, Massachusetts courts are reluctant to interfere with or enjoin mergers of public companies in Massachusetts.  There is a growing line of cases — from Judge Agnes’ detailed decision in the 2007 Westborough Savings Bank merger case,to the merger litigation involving Merck’s $7.2 billion acquisition of Massachusetts-based Millipore Corporation chronicled in 2010 in the Boston Bar Journal,[16] to the recent Massachusetts Appeals Court decision concerning Oracle’s acquisition of Phase Forward Corporation — wherein the Massachusetts courts have either refused plaintiffs’ requests to expedite proceedings[17] or denied a motion to enjoin a merger.[18]  Third, Massachusetts courts will generally approve the award of attorneys’ fees in merger cases when presented with arms’ length settlements between plaintiffs and defendants.

While the tide may turn and merger litigation may become less commonplace, presently, it is all but certain that larger deals will attract litigation.  Massachusetts in particular has seen its share of merger litigation and should continue to until the phenomenon recedes, if it ever does.  Accordingly, deal lawyers in Massachusetts and elsewhere should approach M&A activity with the risk of litigation in mind.

Read Matthew Baltay’s biography here.

[1] Stanford University Professor Robert M. Daines (quoted by Daniel Fisher in “Lawyers Challenge ‘Almost Every’ Merger,” Cornerstone Study (April 26, 2012)).

[2] Cain, Matthew D. and Davidoff, Steven M., “A Great Game: The Dynamics of State Competition and Litigation,” at 11 (April 1, 2012) (free SSRN registration required).

[3] Cain, Matthew D. and Davidoff, Steven M., “Takeover Litigation in 2011,” at 2 (February 2, 2012); Daines, Robert M. and Koumrian, Olga, “Recent Developments in Shareholder Litigation Involving Mergers and Acquisitions, March 2012 Update,” Cornerstone Research

[4] Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., 506 A.2d 173 (Del. 1986).  There is some uncertainty as to whether Massachusetts corporations that decide to sell may consider factors other than price alone, including, for example, the interests of employees and customers and the local, regional and national economy.  Gut v. MacDonough, C.A No. 07-1083, 23 Mass. L. Rptr. 110, 2007 WL 2410131, at *11 (Mass. Super. Aug. 14, 2007).

[5] See also Clark, D. and Kramer Mayer, M., “Anatomy of a Merger Litigation,” Nera Economic Consulting (April 4, 2012), at 2 (discussing the nineteen law firms that issued press releases investigating the NetLogic Microsystems acquisition once it was announced and suggesting “[t]he purpose of the press release was simple:  the law firm was looking for a client.  Despite the considerable ingenuity of plaintiffs’ lawyers, they have not yet figured out how to file a lawsuit without a client.”).

[6] According to a recent NERA study, one-third of all cases are filed within two days of the announcement of the deal and nearly 60% are filed within one week of the announcement.  Clark, D. and Kramer Mayer, M., supra, at 4.

[7] Daines and Koumrian, supra, at 3.

[8] See Clark and Kramer Mayer, supra, at 4 (suggesting that the filing of multiple suits by different firms is done because competing firms “want in on the game.”).

[9] Cain and Davidoff, “A Great Game:  The Dynamics of State Competition and Litigation,” supra, at 33.

[10] Daines and Koumrian, supra, at 11.

[11] Id. at 9.

[12] With 2% of the national population, Massachusetts has 6% of the country’s public companies involved in merger litigation (a third of which are incorporated under Massachusetts law and the remainder principally under Delaware law).  See Cain and Davidoff, “A Great Game:  The Dynamics of State Competition and Litigation,” supra, at 32.

[13] Daines and Koumrian, supra, at 8.

[14] In litigation involving the mergers of the following companies, the Massachusetts court stayed in favor of parallel litigation in Delaware:  3Com Corp. (Davenport v. Benhamou, CA No. 07-3793F, 2007 WL 4711512 (Mass. Super. Dec. 20, 2007)); Sepracor Inc. (Gianquinto v. Sepracor, Inc., CA No. 09-3833-BLS-2 (Mass. Super. Sept. 25, 2009)); US Surgical (Donnay v. Chamoun, CA No. 09-4249-BLS-2 (Mass. Super. Nov. 6, 2009)); Airvana Inc. (Short v. Battat, CA No. 10-0042-BLS-2 (Mass. Super. June 18, 2010)); BJ’s Wholesale Club, Inc. (Puzey v. BJ’s Wholesale Club, Inc., CA No. 2011-11339-MLW (D. Mass. Mar. 16, 2012) (granting motion to stay state law claims)).  In at least one case, the Massachusetts court stayed litigation involving a company incorporated under Massachusetts law in favor of litigation pending in Florida:  BlueGreen Corporation (Caltagirone v. Levan, CA No. 2011-4183-BLS-2 (Mass. Super. Jan. 17, 2012)).

[15] Gut v. MacDonough, C.A. No. 07-1083, 23 Mass. L. Rptr. 110, 2007 WL 2410131, at *11 (Mass. Super. Aug. 14, 2007) (Hudson Savings Bank’s acquisition of Westborough Bank).

[16] Carroll, J. and Brown, M., “Mergers & Acquisitions:  Massachusetts Courts Reject Injunction Attempts,” The Boston Bar Journal (Fall 2010).

[17] In the following merger cases, the Massachusetts court denied plaintiffs’ motion to expedite:  Weitman, Individually & On Behalf Of All Others v Tutor et al, MICV2008-02351, 24 Mass.L.Rptr. 343, 2008 WL 4058343 (Mass. Super. Aug. 13, 2008) (merger of Perini and Tutor); Ahern v. Wainwright Bank, C.A. No. 10-2681-BLS2 (Mass. Super. Oct. 2010); Breene v. NStar, C.A. No. 10-4115-BLS2 (Mass. Super. Ct. Mar. 2, 2011).

[18] In the following cases, the court denied plaintiffs’ motion for preliminary injunction to enjoin the merger:  Gut v. MacDonough, C.A. No. 07-1083, 23 Mass.L.Rptr. 110, 2007 WL 2410131 (Mass. Super. Aug. 14, 2007) (Hudson Savings Bank’s acquisition of Westborough Bank); Ahern v. Wainwright Bank, C.A. No. 10-2681-BLS2 (Mass. Super. Oct. 2010); Breene v. NStar, C.A. No. 10-4115-BLS2, 2011 WL 4837265 (Mass. Super. Mar. 3, 2011); Schnipper v. Watson et al., C.A. No. 09-05439-BLS (Hinkle, J) (May 2010) (Hospira, Inc.’s tender offer for Javelin Pharmaceutical Inc.); Elliot v. Millipore Corp., C.A. No. 10–853–BLS2 (Mass. Super. June 4, 2010); Erlich v. Phase Forward Corp., C.A. No. 10-1463 (Mass. Super. June 21, 2010), affirmed 80 Mass. App. Ct. 671 (2011).


What to do When Your Client Discovers Child Pornography on Workplace Computers

by Matthew L. Mitchell

Practice Tips

Scenario:  An employer’s Information Technology department performs a routine software update on an employee’s office computer.  During the course of the maintenance, an Information Technology professional discovers what appears to be child pornography saved on the hard drive.

This nightmare scenario raises several very difficult questions for the employer:

  • Should the matter be resolved through internal discipline procedures, or should (or must) the employer involve local police or other law enforcement authorities?
  • What should the employer do with the offending images or materials?
  • Should the employer conduct a further investigation?

The answers to these questions depend on a rapidly evolving body of case law and statutes, including statutory mandates that impose specific, affirmative duties on employers who discover child pornography in the workplace.  Employers must be aware of their duties and responsibilities, and be prepared to act when violations occur.  Failure to adhere to these mandates may subject employers to significant penalties and criminal sanctions.

Possession of Child Pornography Is a Crime

Under both Massachusettsand federal law, it is a crime to “knowingly possess” child pornography.  See M.G.L. ch. 272, §29C ; 18 U.S.C. § 2552.  As such, if child pornography is discovered in the workplace or on company computer networks, the employer is in violation of these laws.  Under the federal law that criminalizes possession of child pornography, 18 U.S.C. § 2252, an employer that discovers child pornography in the workplace may limit its liability if it “promptly and in good faith” (a) destroys the offending materials; or (b) informs a law enforcement agency that it has discovered illegal child pornography and affords that agency the opportunity to access the materials. See 18 U.S.C. § 2252(c).  This “safe harbor” may, however, be at odds with other statutory and regulatory mandates.  For example, as discussed below, there are federal and state statutes, potentially applicable to some employers, which expressly prohibit the destruction of evidence of child pornography.

In addition, most jurisdictions, including Massachusetts, recognize that willful or deliberate ignorance is tantamount to actual knowledge of the wrongdoing.  See, e.g., United States v. Guerrero, 114 F.3d 332, 343 n. 12 (1st Cir.1997) (“Where ‘the facts suggest a conscious course of deliberate ignorance,’ a jury is warranted in finding the defendants’ deliberate ignorance of criminal events, which is tantamount to knowledge.”) (internal citations omitted).  Accordingly, if an employer has reason to suspect that an employee is storing child pornography at the worksite or within employer’s computer systems, the employer may not avoid liability by simply ignoring the situation.  Rather, depending on the circumstances, the employer may have a duty to investigate the employee’s activities, including searching its computer files or monitoring employee’s computer usage, and taking prompt remedial action if offending material is discovered.  This duty may trump any privacy rights of the employee.  See, e.g., Doe v. XYZ Corporation, 887 A. 2d 1156, 1158 (N. J. Super. 2005) (“[An] employer who is on notice that one of its employees is using a workplace computer to access pornography, possibly child pornography, has a duty to investigate the employee’s activities and to take prompt and effective action to stop the unauthorized activity, lest it result in harm to innocent third-parties. No privacy interest of the employee stands in the way of this duty on the part of the employer.”).

Under both Massachusettsand federal law, penalties for knowing possession of child pornography include substantial fines and prison sentences.  See M.G.L. ch. 272, § 29C (imposing state prison terms of up to 5 years, and fines up to $30,000 for knowing possession of child pornography); 18 U.S.C. § 2252 (imposing up to 20 year prison sentences for knowing possession of child pornography).

A Duty to Report?

There are several federal and Massachusettsstatutes that may impose affirmative duties on Massachusettsemployers to report child pornography to law enforcement authorities.  For example, federal statute 18 U.S.C. § 2258A requires “whoever, while engaged in providing an electronic communication service or a remote computer services. . ., obtains actual knowledge of any facts or circumstances [concerning child pornography] . . . [must] provide to the CyberTipline of the National Center for Missing and Exploited Children . . . a report of such facts and circumstances. . .”  18 U.S.C. § 2258A.  If the “facts and circumstances” of child pornography include physical materials, such as images, data, or digital files, those materials must be preserved in a “secure location,” and made available to the appropriate authorities upon request.  18 U.S.C. § 2258A(h).  For purposes of the statute, the term “electronic communication service” is defined broadly as “any service which provides to users thereof the ability to send or receive wire or electronic communications.”  18 U.S.C. § 2510.  On its face, the statute appears to apply its mandatory reporting requirement to any employer that provides e-mail access to its employees.  Although some commentators suggest that the scope of 18. U.S.C. § 2258A is limited to Internet Service Providers (such as Comcast or Verizon), this limitation has not been addressed in regulations or case precedent.

Also, under Massachusetts General Law Chapter 119, §51A, certain “mandated reporters,” such as school or hospital employees, are required to report suspected incidents of child abuse and neglect to law enforcement authorities.

In addition to these statutory mandates, employers have been found liable for common law negligence for failing to report child pornography found on a work computer.  In the New Jerseycase of Doe v. XYC Corporation, a mother, on behalf of her daughter, brought a negligence action against her husband’s employer, seeking to hold employer liable for the husband’s use of workplace computer to access pornography and send nude photographs of the daughter to a child pornography site.  Although the employer was on notice that the husband was using work computers to access pornographic websites, the employer did not investigate the husband’s behavior or report his conduct to authorities.  In reversing summary judgment in the employer’s favor, the court held that the employer “had a [common law] duty to report Employee’s activities to the proper authorities and to take effective internal action to stop those activities, whether by termination or some less drastic remedy.” See XYC Corporation, 887 A. 2d at 1168.

In sum, employers must be prepared to promptly report incidents of suspected child pornography to law enforcement authorities.

The Need to be Proactive

Although it is critically important for employers to understand the appropriate actions to take after discovering child pornography, it is equally important to adopt policies and procedures that limit the likelihood of such illegal material entering the work place.  A fundamental tool in this regard is an effective media policy that addresses employee use of workplace computer equipment and systems.  Such a policy should:

  • Restrict employee computer use to authorized work-related activities and limited personal use that does not interfere with work activities or burden the employer’s computer system;
  • Notify employees that work computers, e-mail accounts, and internet activity may be monitored by the employer, and that employees have no expectation of privacy in information stored on such equipment or transmitted through such services;
  • Notify employees that the employer reserves the right to monitor employee usage of company computer equipment and systems; and
  • Inform the employee that illegal use of the company’s computer systems may be reported to law enforcement authorities.

Employers should also be committed to enforcing the policy. When an employer suspects or becomes aware of an employee’s misuse of company computer systems, the employer should engage in a prompt and thorough investigation.  If the investigation reveals inappropriate employee conduct, the employer should take remedial action.  As discussed above, such action may involve subjecting the employee to internal disciplinary procedures or, if circumstances warrant, reporting the employee’s conduct to the appropriate authorities.

Conclusion

Although the statutory and case precedent on this issue continues to evolve, a clear principle has emerged: employers may not ignore employee conduct that may involve child abuse or child pornography.

Matthew L. Mitchell is a partner at Holland & Knight LLP.  Mr. Mitchell represents businesses and educational institutions on a broad range of employment, student, and compliance related matters.


View from the Bench

by Judge Mitchell Kaplan

Voice of the Judiciary

I was appointed an associate justice of the Superior Court just before my 59th birthday, after having practiced law for about thirty-one years.  It still feels as if I was just appointed, but, in fact, I am completing my third year on the bench.  From the time I began my tenure as a judge, like every other new judge who practiced law for a number of years, I was frequently asked what surprised me most about the view of the courtroom from my new vantage point.  I tried to provide answers that were thoughtful, or, sometimes at cocktail parties, humorous (not too originally, I told the story of objecting to a question during my first trial and then, with some embarrassment, sustaining myself), but I think my comments were for the most part trite and not particularly insightful.  Writing this piece on the third anniversary of my appointment forces me to be more reflective.

My experience with a case I presided over for only a few days very soon after my appointment is a good place to start. My first formal three-month assignment was to a civil session in Suffolk.  Late Thursday afternoon of my first week, I was handed a motion for a temporary restraining order:  a financial institution was seeking to restrain the commissioner of a state agency from revoking its license to operate without an administrative hearing.  According to the plaintiff, this would create havoc for many borrowers with loan commitments and cause its many employees to lose their jobs.  I took the bench.  Only the plaintiff’s lawyers were present.  I inquired whether the Attorney General’s office had been notified and learned that it had, but plaintiff’s counsel reported that he had been told that no assistant AG would appear that afternoon.  I told the lawyers that I would conduct a hearing the next morning at10:00o’clock and they should tell counsel for the agency that I expected the agency’s attorneys to be present. That made me feel like a judge:  I had just expressed an expectation that would certainly be treated like an order.  I tried not to let it go to my head.

It then dawned on me that I had never dealt with this agency, or the statutes and regulations that governed it, when I was in practice.  I had the plaintiff’s memorandum in support of its motion, but nothing from the agency.  I had the evening to learn enough about the law to conduct a hearing the next day.  As I have come to understand since that early experience, while sometimes I have time to ask for advice from a colleague or occasionally have access to a law clerk, mostly there is just me.  While I understood the solitariness of being a judge in the abstract before I was one, the reality of it takes some getting used to.  You prepare yourself to decide the case, and then decide it, on your own.

I have also learned that, although I thought that I had pretty broad experience handling different types of civil matters, the jurisdiction of the Superior Court is so immense that I am constantly confronting cases involving substantive law with which I have had little or no experience.  I harbored no illusions about my limited experience on the criminal side.  Therefore, from a practical perspective, I have come to be exceptionally grateful for concise, well-organized memoranda that highlight the critical case law, statutes and regulations that I need to be familiar with to decide the case.  I now understand that many of those times when I asked for leave to file a thirty or forty page brief, because I just could not explain it all to the judge in twenty pages, I was making a mistake.  There is seldom time to read every case that touches on the subject before a hearing.  And being directed to adverse authority, no doubt along with a sound argument as to why it does not control in this instance, is very helpful, and I think helps burnish the credibility of the advocate.

While I am on that subject, I already have amnesia on how I argued the close cases as a lawyer, but I am really appreciative when a lawyer acknowledges that the question that I must decide is a close one and then points out why I should come out on her/his side.  Too often even really good lawyers argue that the answer to the disputed question is clear, beyond any real doubt.  I may not know the right answer, but even I can figure out that the question is hard.

Returning to the motion for a restraining order, I took the bench on Friday morning for the hearing.  The courtroom was now full of lawyers representing all interested parties, including assistant attorneys general and general counsel for the agency.  Both sides made lucid and compelling arguments.  As I sat there looking down from my new perch, I asked myself:  will the first order that I enter as a judge be to enjoin the Commonwealth from exercising its executive authority?   I literally began to perspire.  I hoped that it was not visible from counsel table.  The power and the responsibility of my new position were suddenly very real (and this before I ever had to sentence a defendant).   As I worried over the case, and what I was going to do, I recalled something one of my former partners and mentors said when I told him that I was going to be a judge.

He said that we had spent decades working hard to achieve the best result we could for our clients, but I was now going to be working hard to reach the right decision.  That was, and still is, a surprisingly calming precept.  The responsibility is awesome, but, in the end, you prepare and listen and then can take comfort in having done the best that you can to reach what you believe is the right result.  Besides, if you make a mistake the appeals court can correct it.  I have found that I really don’t like being reversed, but it isn’t the same as losing the client or the fee, if you lose the case.

So, after the argument on the injunction was over, as the parties waited expectantly, I announced my decision: I was taking the motion under advisement.  I did, however, commit to having a decision on Monday morning.  I wrote a memorandum of decision over the weekend and spent more time worrying where the commas went than I have since found a trial judge generally has time to do.  When I arrived in my chambers on Monday, there was a young associate from the plaintiff’s law firm waiting to pick up the opinion.  (He reminded me of me thirty-plus years ago.)  I had enjoined the agency, although it was likely only a Phyrric victory as it was based on a failure to provide the plaintiff an opportunity to be heard before its license was revoked.

I then learned another thing about judging: I don’t know what happened next.  I know that my decision was not appealed, as I would have received notice of that, but I don’t know what happened to the plaintiff, or its borrowers, or its employees.  I had played my part in this drama and had to turn to the next case.  It was frustrating.  As a lawyer, generally, I seldom had more than a half dozen cases that were really active at any time.  I knew everything about them:  facts, law, witnesses, etc.  They were like relations that often stayed around for years.  As a judge, especially when sitting in a civil session, I could touch twenty-five or thirty cases in a week.  I try to understand them sufficiently to decide that which is before me, but many I will never see again.  I should have thought more about that phenomenon when I was practicing law.  Except perhaps during trials, we judges do not live with cases the way lawyers do.

So not only do I find myself handling many files that I had not looked at previously, I am constantly trying to learn new law.  It is challenging, and sometimes frustrating, but it is also fun and exceptionally rewarding.

More than anything, I have learned that this is really a great job.

Mitchell Kaplan is a justice of the Superior Court.  He was previously a partner at Choate, Hall, & Stewart and served as a law clerk to Hon. Joseph L. Tauro, USDC.


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, MassLive.com, published at http://www.masslive.com/news/index.ssf/2012/04/leader_of_massachusetts_gaming.html (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 http://www.umb.edu/editor_uploads/images/centers_institutes/financial_services_forum/DiceOrNoDice.pdf), 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 http://www.iagr.org/docs/Phd1a.pdf.

[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 www.ussc.gov/Data_and_Statistics/Annual_Reports_and_Sourcebooks/2011/SBTOC11.htm ) (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 www.ussc.gov/Legislative_and_Public_Affairs/Public_Hearings_and_Meetings/20120215-16/Agenda_15.htm ) (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 www.ussc.gov/Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/index.cfm) (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 www.ussc.gov/Publications/Offense_Types/index.cfm/20091030_History_Child_Pornography_Guidelines[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 www.fd.org/navigation/select-topics-in-criminal-defense/common-offenses/child-pornography-and-other-sex-offenses  ) (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.)