We live in a specialized world, one in which access to information is so overwhelming that there literally is “an app for that” to satisfy even the most specific and narrow of needs.
Yet, until recently, the legal profession’s response to the increasingly tailored needs of our clients has been to give them all the tried and true traditions of the law. Got a dispute? Let’s file a lawsuit with the courts and travel down the litigation road. Got a complex, sophisticated business dispute? Let’s go to arbitration with an arbitrator who is experienced in business disputes. Don’t want to risk a jury deciding your case and spend thousands of more dollars on a trial? Let’s go to mediation. Because…this is how we do it. This is how we’ve been doing it for decades.
The information revolution has moved too quickly and our clients have become too savvy to be content with the legal profession’s limited amount of choices or one size fits all approach. There is a time and a place for litigation, for arbitration, and for late in the dispute process mediation. But most of the time, our clients need an approach to resolving their disputes that is tailored to their needs, specific circumstances, and unique situations. Today’s lawyers and neutrals can best serve our clients by being responsive to the specificity of their needs and interests. That includes not only resolving a dispute but also how we go about resolving it.
New England Patriots coach Bill Belichick often talks about playing “situational football.” In other words, the game plan is designed differently for each game and depends on the situation each opposing team presents. The Patriots will never use the same game plan against the Broncos as they used for the Jets just because it worked. The Patriots win because they understand that a great result begins with a carefully designed and tailored approach.
Every dispute is different. Every client has a different bandwidth of factors which need to be considered. These may include how quickly the client needs to resolve the matter; how much can be spent on it; how important are the relationships of those involved; how much control does the client want to have over the process and the result; how risk averse is he/she; how important is confidentiality; what kind of expertise is needed; what are the important interests that are behind a stated position; and how productively can the parties work together in a non-adversarial setting, with or without a human go-between.
If the field of dispute resolution (DR) is going to be relevant, it has to be agile and responsive to the situation that is presented to us. No longer can litigation be the default and a couple of other processes be “alternatives.” In fact, no one process can be the default position and be presented to clients as the Cadillac of dispute resolution processes. It is time for the “A” (alternative) to be dropped from “ADR” (alternative dispute resolution), something that the Massachusetts Bar Association has just formally recognized in changing its former ADR Committee to its new DR Section. No process is an alternative; rather, every process is an alternative, and there are alternatives within the alternatives.
Within these DR processes, there is an explosion of variations and new roles emerging. For example, distinctions are often made between “facilitative” style mediation and “evaluative” mediation. In the latter, the mediator is called upon to help the parties assess how strong or weak their respective positions are, and to provide insight on the potential damages. A new trend emerging, called Planned Early Negotiation (PEN), draws a distinction between mediation which is done instead of litigation, or very early on in the litigation process, and that which is done later, often on the eve of trial. When done early, there may be some kind of information exchange so that the parties, lawyers and the mediator have enough factual information for well-informed and productive negotiations. Conciliation is another DR process with a much shorter time frame – often an hour or two –- and has often been referred to as “mediation on steroids.” Conciliation largely focuses on the advantages of reaching a negotiated agreement as compared with the pitfalls of the alternative of going to trial.
New approaches have been developing even in the well-established field of arbitration. Arbitration has increasingly become a more complicated process and often includes many elements of litigation. As a result, many parties are opting for more streamlined models of arbitration with limits on discovery and motion practice Some even use a more simplified version like “baseball arbitration,” in which the parties submit their respective written proposals for a settlement to the arbitrator, who then chooses the one he/she believes to be more appropriate and reasonable. And within baseball arbitration, there is both the version just described, known as “daytime” baseball arbitration, and “nighttime” baseball arbitration, in which the parties submitted proposals are not disclosed to the arbitrator until after the arbitrator renders a decision. The proposal that is closest to the arbitrator’s decision is then chosen to be the final resolution. In other cases, arbitrators may visit the site that is at the heart of a dispute and may limit or expand the degree of information exchange, the scope of submissions and the nature of a hearing.
Collaborative law, a structured negotiation process, grew out of the need to remove or minimize the adversarial elements of litigation. Collaborative law is a PEN process designed to intentionally pursue resolution by agreement through the collaboration of lawyers, clients and experts. It is similar to the more established role of settlement counsel. Lawyers that are hired as settlement counsel have the singular and limited purpose of negotiating with the other side on behalf of the client, as distinct from litigation counsel. A dispute would then proceed on two tracks; settlement counsel would be focused on pursuing settlement negotiations only, while litigation counsel would be handling the litigation aspects of the dispute.
Similar to the role of settlement counsel, the focused legal representation of clients by collaborative lawyers is limited to the collaborative process, where achieving the desired resolution is the lawyer’s only role. Collaborative law requires the open and voluntary exchange of all relevant information as a basic tenet. As such, “discovery” is both streamlined and profound. Collaborative lawyers and their clients may utilize neutral facilitators, case evaluators, or other neutral experts to provide parties with the expertise needed on the relevant factual and legal issues when there is a colorable claim and a valid defense. By its very nature, collaborative law is responsive to the circumstances of the dispute, allowing for flexibility and creativity in crafting solutions. That very nature allows collaborative lawyers to use variations while remaining consistent with the process’s basic protocols and principles.
Hybrids like “med-arb” or collaborative law with a baseball arbitration style closure option are also emerging, each with a different adaptation of process. What is clear is that there is no longer just one model of any of these processes. They will be called upon to be responsive to the situation each dispute presents.
These changes will require lawyers and neutrals to make more detailed assessments of each situation and the parties involved. Based on that assessment, we can then make a recommendation as to choosing and sometimes designing the right approach. This can present somewhat of a dilemma. Many lawyers and neutrals have a preferred DR process, one that we are more comfortable with, have the most experience in or in which we have been trained. Just like a surgeon excels at surgery and that is what the surgeon wants to do, litigators want to litigate; arbitrators want to arbitrate; mediators want to mediate; collaborative lawyers want to use collaborative law; and so on. So when the client comes into our office, there’s a natural bias, as well as a financial incentive, toward wanting to lead the client to what we do.
But if we are true to doing a thorough assessment of the client, his/her situation and all the factors of the dispute that is presented to us, and are going to make a good recommendation about the approach for this unique situation, we may have to refer the person to some other process and someone else that is the right fit for that client.
In the same way that a lawyer specializing in one area of practice would not try to represent the client in an area outside of his/her practice, a lawyer whose focus is settlement counsel or collaborative counsel is probably not the right lawyer for litigation, and vice versa. As there are specialties in areas of practice, today there are specialties in types of process. The training and expertise for a litigator is different than that of a settlement counselor, just as the process of collaborative law is different from arbitration. In her groundbreaking book, The New Lawyer: How Settlement is Transforming the Practice of Law, Law Professor Julie Macfarlane eloquently dissects the differences between adversarial advocacy and the newly emerging “conflict resolution advocacy.”
There is a role and a place for every kind of process on the DR spectrum, from litigation and arbitration on one end to preventive contract drafting and proactive ombudsman work on the other end. As the needs and demands of our clients get more specific and more sophisticated, those of us who represent our clients either as litigation, settlement or collaborative counsel, as well as those of us who serve as DR neutrals, must be responsive. The times call on us to be flexible and agile, to be ready and able to design approaches according to the needs and the situations presented to us. As legal counsel and neutrals, it is up to us to guide parties in the right direction in order to help them achieve their best outcomes.
Michael A. Zeytoonian, the founding member of Dispute Resolution Counsel, LLC is a lawyer and mediator whose practice areas include employment, business, consumer protection, special education law and homeowner-contractor disputes. Michael writes, lectures frequently on collaborative law, mediation and dispute resolution (DR) and has trained lawyers and presented on Collaborative Law throughout the United States, Canada, Ireland and The Netherlands. He is co-author of Collaborative Law: Practice and Procedures (MCLE, Boston 2014).
by Hon. John T. Lu and Kevin Riley
“Empower the Sentencing Commission to revisit the state’s approach to sentencing and sanctions”, this was one of several key criminal justice policy recommendations proposed by the Massachusetts Criminal Justice Coalition in 2013. At the urging of criminal justice leaders, the Massachusetts Sentencing Commission, originally codified in Massachusetts G.L. c.211E, was re-established in 2014 and met for the first time that October to consider the performance of our sentencing system. Nearly nineteen years after the publication of the first “Report to the General Court” in 1996, once again the members and staff of the Massachusetts Sentencing Commission eagerly embrace the opportunity to reposition the Commonwealth at the forefront of criminal justice policy development.
The current sentencing guidelines are used by many judges on a voluntary basis. The guidelines are in the form of a grid where the seriousness of the offense and the criminal history of the defendant are systematically considered in making a sentencing recommendation.
Comprised of three judges, three prosecutors, and three defense attorneys, along with the Secretary of the Executive Office of Public Safety and Security, a representative of the Massachusetts Sheriffs’ Association, the Commissioner of the Department of Correction, a designee of the Parole Board, the Commissioner of Probation, and a designee of the Victim Witness Assistance Board, the Commission represents a diverse cross-section of subject-matter experts, including:
• Hon. John T. Lu (Chair): Associate Justice, Superior Court;
• Daniel Bennett, Esq: Secretary, Executive Office of Public Safety and Security;
• Michael J. Callahan, Esq: Executive Director, Massachusetts Parole Board;
• Edward J. Dolan: Commissioner, Massachusetts Probation Service;
• Mary Alice Doyle, Esq: Deputy First Assistant DA, Essex County DAs Office;
• Peter L. Ettenberg, Esq: Defense Attorney (MACDL);
• Hon. Kenneth J. Fiandaca: Associate Justice, Boston Municipal Court;
• Pamela Friedman, MSW: Chief, Victim Witness Unit Norfolk County DAs Office;
• Brian S. Glenny, Esq: First Assistant DA, Cape & Islands DAs Office;
• Hon. Mary Elizabeth Heffernan: First Justice, Newton District Court;
• Carol Higgins O’Brien: Commissioner, Massachusetts Department of Correction;
• Dean A. Mazzone, Esq: Senior Trial Counsel, Criminal Bureau Attorney General’s
• John S. Redden, Esq: Attorney-in-Charge, Brockton Superior Court Trial Unit (CPCS);
• Martin Rosenthal, Esq: Defense Attorney (MACDL); and,
• Steven W. Tompkins: Sheriff, Suffolk County.
Commission members, appointed in accordance with Massachusetts G.L. c. 211E, serve on a voluntary basis and are generally appointed for six-year terms; no voting member may serve more than two full terms. The enabling legislation envisions the Massachusetts Sentencing Commission as an ongoing entity that supports, monitors and assesses the implementation of sentencing initiatives throughout the Commonwealth. Under the statute the Commission and its staff seek to:
• Analyze the impact of existing and proposed sentencing policies and practices on criminal justice resources using computer simulation models;
• Provide training and support to court practitioners on the use of sentencing guidelines;
• Recommend the appropriate placement of newly-created crimes on the sentencing guidelines grid;
• Conduct research on sentencing and other criminal justice issues to help guide the formulation of policies and legislation;
• Collaborate with criminal justice agencies on system-oriented research initiatives; and,
• Serve as a clearinghouse for information on sentencing.
Since the Commission’s initial meeting in October 2014, members and staff have convened on a monthly basis to discuss a wide scope of proposed sentencing changes, initiatives, and policies. The Commission’s commitment to data-driven decision making and evidence-based practices is furthered by the appointment of University of Massachusetts Lowell Professor James Byrne, an authority on evidence-based sentencing practices, to the position of outside technical advisor and the Commission’s access to the expertise of staff and faculty at the Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota Law School. On November 18, 2015 the Commission held a public hearing to solicit public commentary on sentencing matters. Further, in addition to strongly considering valuable public input on sentencing, the Commission has called upon the expertise of the following nationally recognized leaders to help guide the work of the Commission:
• Michael Coelho: Deputy Commissioner of Programs at the Massachusetts Probation Service, Coelho addressed the Commission on the Pew Results First Initiative, a cost- benefit approach to guiding policy and budgetary decisions throughout the Massachusetts criminal justice system.
• Professor Mark Kleiman: Then a Professor of Public Policy at the Luskin School of Public Affairs, UCLA at Berkeley, Professor Kleiman engaged Commission members in discussion of the HOPE model of probation supervision and best practices in the sentencing of drug offenders.
• Professor Kevin Reitz: Professor of Law at the University of Minnesota Law School, Professor Reitz provided a national perspective on the work of other sentencing commissions and how Massachusetts can incorporate nationally recognized best practices into our sentencing guidelines model.
• Professor Richard Frase: Co-Director of the Robina Institute of Criminal Law and Criminal Justice, Professor Frase provided valuable insight on developing a safety-valve provision offering qualified offenders relief from mandatory minimum sentences.
• Commissioner Edward Davis (ret.): Former Boston Police Commissioner Davis presented Commission members with a law enforcement perspective on sentencing and best practices for promoting successful post-incarceration reintegration for offenders.
• District Attorney Daniel Conley: Suffolk County District Attorney Conley provided Commission members with a prosecutorial perspective on sentencing and crime control.
• Judge Nancy Gertner (ret.): A former Federal Judge, Gertner presented Commission members with her experience and perspectives in working with the federal sentencing guidelines.
In addition to participating in full Commission meetings, Commission members also serve on sub- committees. Detailed below is a brief synopsis of each sub-committee and the responsibilities and work they are engaged in:
• Community-Based Sanctions Sub-Committee: Focusing on innovative solutions to incentivize compliance with community-based sanctions, restructuring of supervision fees, community relations through outreach initiatives, and considering the implications of “zero-based” conditions of probation where every condition must be justified.
• Guidelines and Legislation Sub-Committee: Focusing on the development of a comprehensive sentencing guidelines model, one supported by data and grounded in research. Sub-committee members are actively debating and considering improvements designed to strengthen statutory criminal justice provisions.
• Outreach and Training Sub-Committee: Responsible for the coordination of public hearings as well as making recommendations to improve the web presence of the Commission. Further, sub-committee members are also responsible for the development of training resources and for providing technical support to guidelines users at the local court level.
• Research and Data Sub-Committee: Responsible for the review and approval of all research related requests, including the development of information sharing protocols. Sub-committee members also serve as a review board to monitor any mutually agreeable external research projects the Commission engages in. Further, sub-committee members may analyze sentencing data to monitor developing trends and rates of compliance and departure from recommended sentencing ranges.
The Massachusetts criminal justice system is engaged in many initiatives that share the mission of, and parallel the work of the Commission. The Council of State Government’s Justice Reinvestment Initiative and the best practices in sentencing committees within the Trial Court are two such initiatives.
The Council of State Government’s Justice Reinvestment Initiative in Massachusetts is a significant cost-savings. Experts from the Justice Reinvestment Initiative will present these findings to a bipartisan task force that will debate and present these recommendations to the legislature. The cost-savings generated through these recommendations can then be reinvested in front-end programs designed to reduce recidivism. Currently, 24 states and 17 local jurisdictions throughout the United States participate in the Justice Reinvestment Initiative.
Led by Chief Justice Ralph Gants, working groups on best practices in sentencing are active in each court department with significant criminal jurisdiction. Committee members, which include judges, probation officers, prosecutors, defense attorneys and police chiefs, are tasked with the development and implementation of sentencing best practices specific to each of these court departments. It is the intent of these committees to develop a set of sentencing best practices to serve as a judicial decision making support tool, guiding judges in crafting individualized sentences that are consistent with best practices whenever possible.
Moving forward, the Sentencing Commission is developing data-driven policy recommendations and remains committed to collaborating with nationally recognized experts from the academic and legal communities. Given the diverse backgrounds of Commission members, significant differences of opinion on how to best improve sentencing in Massachusetts are unavoidable, and despite this, many Commission members are encouraged by a shared vision. This common vision is one that does not compromise public safety and scarce correctional resources, and seeks to reduce prison populations when consistent with public safety, to reduce recidivism, to enhance the utilization of intermediate sanctions, and to support an economically sustainable correctional model. The Commission extends its sincere gratitude to the many local champions and nationally recognized leaders who have whole-heartedly endorsed and supported our mission as we work to bring evidence-based practices to sentencing policy in Massachusetts.
John Lu is a Superior Court justice and chair of the Massachusetts Sentencing Commission as well as an Adjunct Professor of Law at Boston University. He is the lead Superior Court judge for a Bureau of Justice Assistance-funded Demonstration Field Experiment of HOPE probation principles, a randomized control trial of supervision of high-risk probationers. Lu’s professional interests include criminal justice and sentencing innovation, leadership and management, and teaching.
Kevin Riley is a research analyst at the Massachusetts Sentencing Commission. A graduate of the University of Massachusetts Lowell, Riley’s professional interests include statistical analysis, geographic information systems (GIS) and economically efficient alternatives to justice system
We have seen the marketing. According to a recent report by a top consulting firm, the Internet of Things will have an annual economic impact of between $4 trillion and $11 trillion by 2025. Another firm has announced that there will be 50 billion internet-connected devices globally by 2020. And companies already have rebranded in grand fashion, declaring the arrival of “Smart Homes,” “Smart Cities,” the “Smart Planet,” the “Industrial Internet” (the contribution of the author’s company), and even the “Internet of Everything.” We also have seen the reality of Fitbits that record our activity and suggest changes to our exercise and sleep patterns, cars that accept remote software updates, and airplane engines that communicate maintenance issues from the tarmac. For all of this potential, and even greater claimed potential, our shared late-night admission is that none of us has a well-defined picture what, precisely, the Internet of Things is or does.
This combination of wide promise and shared confusion is not a trivial matter. Companies are setting long-term strategy based upon Jetsons-like glimmers of the future; consumer expectations and fears are being set in an environment of rapidly-evolving offerings and — most critically for attorneys providing advice to clients considering investments in this area — legislators and regulators are being asked to set legal and enforcement frameworks without a clear picture of the future product landscape or whether products still in their infancy will create anticipated harm. In order to advise properly in this area, and to avoid regulatory frameworks getting far ahead of actual product development, it is important that lawyers appreciate the scope of Internet of Things technology and the policy implications of internet-connected goods and the data they create and use.
So what is the Internet of Things? Simply put, the Internet of Things, or IoT, is a set of devices that connect to and send or receive data via the internet, but not necessarily the devices people most often think of as being connected to the internet. In the consumer world, IoT includes smart meters that measure home energy use, refrigerators that can report back on maintenance needs or whether the owner needs more eggs, and monitors that can record blood sugar results and communicate via Bluetooth to a connected insulin pump. It also increasingly includes cars that sense other cars in close proximity and record and report on driver speed, location and music listening choices. And in the industrial space, offerings include an array of sensors and networks that measure and manage the safety and efficiency of oil fields or the direction, speed and service life of wind turbines and airplane engines; X-ray and CT machines with remote dose monitoring; and badge-based radio-frequency identification systems that analyze whether medical providers are washing their hands in the clinical setting and the resulting impact on infection rates. This definition generally does not include computers, tablets and other computing devices, although — with smartphone apps advancing to the point of measuring movement and heart rate and reading bar codes to compare prices at local retailers — one could argue that the iPhone and Android phone are the Swiss Army Knives of personal internet-based data collection and use. In turn, IoT devices generate large sets of sensor-based data, or Big Data, which can be aggregated and analyzed to generate observations concerning the world around us and to improve products and services in healthcare, energy, transportation and consumer industries.
These developments have not been lost on government. The White House has commissioned two major studies on the potential of Big Data. The Federal Trade Commission held a full-day workshop to discuss IoT in the home, in transportation and in healthcare, and FTC staff subsequently issued a comprehensive report discussing benefits and risks of IoT. Branches of the European Commission are encouraging companies to establish European research and development footholds for internet-based devices. The European Commission noted the development of internet-based devices and the prospect of a Digital Single Market as inspirations for the anticipated replacement of the European Data Privacy Directive. And European Data Protection Commissioners have boldly asserted their authority, declaring that in light of the risk presented by sensor-based devices, “big data derived from the internet of things . . . should be regarded and treated as personal data” under European data privacy law. Unfortunately, the Commissioners did not distinguish industrial uses such as wind turbines and oil wells from consumer goods that actively collect personal information.
The FTC report above summarizes many of the practical and policy challenges presented by emerging IoT technologies and the views of advocates for industry and consumers. Security is, for many, the most compelling issue. Internet-connected devices must collect data accurately; those data sets need to be communicated securely to data centers; and devices and back-end computing systems need to be protected against hackers, both to protect the data collected from devices and to protect the networks and devices against hijacking. Recent stories of rogue engineers using laptops to break into parked cars and controlling car brakes remotely, and the dystopian nightmare of a hacked pacemaker on the TV drama Homeland, have not helped mitigate these concerns. This risk is compounded by the prospect of “big data warehouses” that can store and analyze zettabytes of data in support of technological breakthroughs.
Separately, there is the question of notice and consent for the collection and use of IoT data. As the FTC staff report notes, it is significantly easier to provide notice about a company’s data practices on a computer screen than on a piece of medical equipment or in a friend’s car that already is collecting and reporting a wide array of data. This problem is compounded in industrial settings, for example, where passenger weight is analyzed to optimize airplane engine function, or where data sets from and surrounding an MRI machine are communicated to the hospital network to read the scan and to the device manufacturer to facilitate maintenance and product improvement.
Other questions abound. Will data from an internet-connected device be used for unanticipated purposes, such as devising large consumer medical or credit reports, without the consumer having the ability to know what is being done or how to correct or delete data? Will providers use data to discriminate improperly, or will better use of data create a more level playing field, facilitating new services at lower prices for a wider swath of consumers? And are some issues already addressed by current regulatory frameworks like HIPAA or the Fair Credit Reporting Act, related standards like the Payment Card Industry security rules, or extensive regulatory frameworks governing security and data use for government contractors, transportation providers and energy providers?
In turn, certain baselines have emerged. First, “security by design” and “privacy by design,” the practices of building security and privacy protections into the development lifecycle of goods and networks, are essential. These requirements become even more compelling in light of the recent decision of the Third Circuit in FTC v. Wyndham Corporation Worldwide, holding, among other things, that the FTC has authority to bring claims alleging “unfairness” for a company’s purported failure to properly secure networks and data. Second, companies collecting data from IoT devices must carefully consider how much data they need and whether it can be de-identified to minimize privacy risk, whether the data will be aggregated with other data, and whether consumer choice is needed to make specific use of the resulting data set. And in light of privacy and national security laws around the world — including recent data localization and national security laws in Russia and China — companies will need to evaluate where data is transferred globally and where to locate the associated databases and possibly even global computing, service and engineering staff.
Much of the promise and peril of the Internet of Things and Big Data are in the future. Google and Dexcom, a maker of blood sugar monitoring devices, recently announced an initiative to make a dime-sized, cloud-based disposable monitor that would communicate the real-time glucose values of diabetes patients directly to parents and medical providers. No date has been announced, although recent advances in remote monitoring suggest hope. And the journal Internet of Things Finland recently published an article announcing the proof-of-concept for a “wearable sensor vest with integrated wireless charging that . . . provides information about the location and well-being of children, based on received signal strength indication (RSSI), global positioning system (GPS), accelerometer and temperature sensors.”
Thus far, rule-making has focused on security standards for connected devices and related computing networks. The FDA has issued detailed security guidance for connected devices and systems, and the Department of Defense has issued security standards for contractors that include an expansive definition of government data subject to coverage under the U.S. Department of Commerce’s NIST 800-171 standard for protecting sensitive federal information. However, there has not been a push in the U.S. for comprehensive legislation governing internet-connected goods and services. As the FTC staff report explained: “[t]his industry is in its relatively early stages. Staff does not believe that the privacy and security risks, though real, need to be addressed through IoT-specific legislation at this time. Staff agrees with those commentators who stated that there is great potential for innovation in this area, and that legislation aimed specifically at IoT at this stage would be premature.”
The marketplace for internet-connected goods and services surely will continue to expand, and the product and service landscape will advance rapidly. Whether we will see more than $10 trillion dollars of annual economic impact has yet to be determined. In this fast-moving environment, companies considering investment in the Internet of Things and Big Data and the attorneys who advise them would be well served to monitor the evolving regulatory and legislative landscape.
Peter Lefkowitz is Chief Counsel for Privacy & Data Protection, and Chief Privacy Officer, at General Electric. Mr. Lefkowitz previously served on the Boston Bar Journal’s Board of Editors.
The right to be indicted by a grand jury in cases of capital and serious offenses is guaranteed under the Fifth Amendment to the U.S. Constitution and Article 12 of the Massachusetts Declaration of Rights. Grand jury proceedings have been the focus of national attention this past year. Yet few people across this country understand how a grand jury functions. Further, grand juries vary from state to state in make-up, jurisdiction, and procedure. Here in Massachusetts, grand jury practice strives to maintain the integrity and character of this essential component of our criminal justice system.
The grand jury occupies a unique and historic place in our jurisprudence. See Jones v. Robbins, 8 Gray 329, 342-50 (1857); Commonwealth v. Riley, 73 Mass. App. Ct. 721, 726 (2009). Comprised of citizens who sit independently and in secret, “the grand jury have the dual function of determining whether there is probable cause to believe a crime has been committed and of protecting citizens against unfounded criminal prosecutions.” Lataille v. District Ct. of E. Hampden, 366 Mass. 525, 532 (1974). Probable cause is reasonable grounds to believe that a crime has been committed by a certain person. “[A]t the very least the grand jury must hear sufficient evidence to establish the identity of the accused and probable cause to arrest him.” Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982) (citations omitted).
In Massachusetts, the grand jury is comprised of twenty-three citizens. A Superior Court judge, usually assisted by an Assistant District Attorney, empanels a grand jury every three months. In Suffolk County the jury sits four days per week for the entire three months. Though some employers pay for all jury service, most will pay only the required first three days of service after which the State will pay fifty dollars per day. Using individual voir dire, the judge inquires of each potential juror on the issues of hardship and impartiality. Finding fair and impartial grand jurors who can commit to this three month schedule under these financial conditions is difficult, and empanelment usually takes two days. Once twenty-three jurors are chosen, the court will administer the Grand Jury Oath, G.L. c.277, §5. The Judge follows with the traditional instruction explaining briefly the duties and responsibilities of grand jurors, and then remands them to the care of the prosecutor to begin their work.
The District Attorney oversees the presentation of cases to the grand jury. The prosecutor’s unique access to the police and the victims and witnesses of crimes provides a practical avenue to presenting cases in grand jury. The grand jury meets in secret. The witnesses and evidence that come before it are not disclosed to anyone during the pendency of any investigation. In fact, jurors are forever bound by the secrecy requirement. The grand jury serves both a screening and an investigative function. The grand jury will hear cases for which an arrest has been made to determine whether an indictment should issue, and will also conduct complex investigations into alleged crimes for which no arrest has been made. Standard cases range from simple gun and drug possessions to physical assaults and robberies, from sexual assaults and child abuse to shootings and homicides. A case cannot proceed to Superior Court for trial unless a grand jury has returned indictments.
Typically, the Assistant District Attorney will present evidence through the testimony of sworn witnesses, supplemented with physical evidence. All evidence is obtained through grand jury subpoenas. Physical evidence can take many forms: photographs, surveillance video, recorded statements, drug and gun certificates, medical and other business records. All witnesses summoned before the grand jury are entitled to be represented by an attorney. Witnesses who refuse to testify or otherwise assert a privilege will appear with counsel before a judge for a hearing on that issue. If the judge determines that the witness has a valid claim of privilege, the judge will excuse the witness from testifying. Only the grand jurors, the prosecutor, the witness, and a stenographer, lawyer or interpreter are allowed to be present during testimony. All testimony of witnesses is recorded and transcribed into grand jury minutes and these are later provided as part of a discovery package to an indicted defendant.
The evidence required for a grand jury to indict is “considerably less exacting” than the evidence required for a petit jury to find guilt at trial. Commonwealth v. Walczak, 463 Mass. 808, 817 (2012). See also Riley, 73 Mass. App. Ct. at 726. The rules of evidence are relaxed during grand jury presentations. Leading questions are allowed, and hearsay is permissible. Grand jurors have the opportunity to question witnesses. In furtherance of their duties, grand jurors may request the Court to order witnesses or potential targets to provide DNA samples, fingerprints, or even participate in lineup procedures. This evidence assists the jurors in making the ultimate finding of probable cause, and may exculpate or inculpate a potential target. Grand jury practice has developed over time to now afford the grand jurors a fuller and more complete review of the evidence. While once a single police officer may have been sufficient to establish probable cause, the current practice is for grand jurors to hear most of the percipient witnesses and to receive corroborative evidence, and such exculpatory evidence as is available.
The other major role of the Assistant District Attorney is to serve as a legal advisor to the grand jury. See Walczak, 463 Mass. at 823-24, 840-41. Traditionally prosecutors instruct on and explain the law whenever appropriate, necessary, or requested by the grand jurors. Id. The Court, however, does not require instruction unless specifically requested by the grand jury. Commonwealth v. Noble, 429 Mass. 44, 48 (1999). Recently, the Court carved out an exception to this longstanding rule. In cases where the prosecutor seeks to charge a juvenile defendant with murder and where, apart from any claim of lack of criminal responsibility, there exists substantial evidence of mitigating circumstances or defenses — e.g. that the defendant acted in the heat of passion based on reasonable provocation or sudden combat — the prosecutor must instruct the jury on the elements of murder and the legal significance of this evidence on the record. Walczak, 463 Mass. at 809. In Suffolk County, as a case comes before the grand jury for the first time, the prosecutor will define the elements of the potential crimes and applicable legal concepts using standard jury instructions and case law. Once a jury has been instructed on a specific charge or concept, they will receive subsequent instructions as requested or needed. Before voting any charge, the grand jury has received all applicable instructions of law.
At the conclusion of the evidence, the prosecutor will ask the grand jury to vote on a charge or charges. The jurors deliberate in secret, and the prosecutor is not present. For each crime, the jurors must determine if there is probable cause to charge a certain defendant. If the Commonwealth presents sufficient evidence to meet the standard of probable cause, it is the duty of the juror to vote in favor of a true bill or indictment. In order to true bill a charge, twelve or more grand jurors must vote to support the indictment. If fewer than twelve jurors vote to support a charge, the result is a No Bill, that is, no indictment. Although twenty-three members make up a whole grand jury, a minimum of thirteen need be present to have a quorum. In all cases at least twelve jurors must vote to return a true bill or indictment. The foreperson signs the indictments on behalf of the grand jury and returns these indictments to the Court.
Ultimately, the Court oversees and reviews the grand jury process. At any time, the jurors may request instructions from a judge. For the most part, the legal requirements and responsibilities placed on prosecutors in grand jury have been simple and straightforward. In order to sustain an indictment, the evidence presented to the grand jury must establish probable cause. McCarthy, 385 Mass. at 163. The prosecutor also has a duty to uphold the integrity of the grand jury process and provide significant exculpatory or other mitigating evidence that would influence the grand jury’s decision to indict. Commonwealth v O’Dell, 392 Mass. 445, 451 (1984); Commonwealth v. Mayfield, 398 Mass. 615, 621 (1986). Upon meeting these requirements, an indictment will survive most challenges.
The public would be impressed with the commitment demonstrated by the members of the grand jury. From the moment they take their oath to the end of the three months of service, the jurors work hard to be fair and impartial, fulfilling their solemn responsibility to properly charge individuals with crimes and to uphold their obligation to serve and protect the citizens of this Commonwealth.
Linda Poulos is an Assistant District Attorney with the Suffolk County District Attorney’s Office. She has been the grand jury coordinator for the last 15 years.
Facilitating the “Fresh Start”: Representing Pro Bono Bankruptcy Debtors Through the Volunteer Lawyers ProjectPosted: January 7, 2014
by Meg McKenzie Feist and Megan B. Felter
Our potential client is visibly nervous as we show her to the conference room where we will hold an initial meeting to discuss her financial situation. She looks alternately at us, the view out the window, the stack of invoices and bills she has brought with her, and her cell phone, which vibrates periodically to announce yet another creditor collection call. Following introductions, we ask simply, “What brought you here?” She is taken aback for a moment, obviously unused to the opportunity to offer her story without interruption. With some encouragement, however, she reveals the events and circumstances that brought her to our offices. Listening carefully, we realize that finances are but one aspect of the difficulties in her life, which include mental and physical disabilities and a history of having been physically abused. Unable to work, she relies on government benefits and feels powerless beneath the weight of her debts. By the end of the initial meeting, we have gathered the information necessary to determine whether we can represent her on a pro bono basis to consider debt relief, potentially through bankruptcy. As we walk her to the elevators and shake her hand goodbye, it is clear that she already feels a sense of relief. The rest is up to us.
The Volunteer Lawyers Project
Our experiences advising needy individuals on a pro bono basis with respect to their debt relief options under federal bankruptcy law have been deeply rewarding. In the greater Boston community, there exists a great need for lawyers to volunteer this service. Congress enacted bankruptcy laws to provide “honest but unfortunate” debtors with a “fresh start” from burdensome debts. For individuals who cannot afford a lawyer, however, this relief may be beyond reach. The Volunteer Lawyers Project (VLP) of the Boston Bar Association (BBA) facilitates access to justice by pre-screening and referring qualified individuals to a volunteer lawyer. The lawyer advises the individual in considering bankruptcy relief typically under Chapter 7, which is a court-supervised procedure by which a debtor receives a discharge of debts after his or her “non-exempt” property has been liquidated to pay creditors.
Individuals in Need
A volunteer lawyer can usually expect a pro bono case to have certain common features. First, most clients have very limited, often fixed, income. Some may be relegated to sporadic or part-time work after having lost a more stable job. Others may be forced to live on government benefits after becoming unable to work due to disability. Second, most clients have very limited assets. Typically, they do not own their homes and instead rent, sometimes with the assistance of a federal housing program. Although some clients own cars, many instead rely on public transportation. Indeed, in many cases, a client’s only assets may be clothing and household goods (e.g., bed, television, table, small appliances). These limited assets will likely be deemed “exempt” in the bankruptcy—that is, the client will be entitled to keep them instead of being forced to sell them to pay creditors. Finally, credit card debt is a common feature of most pro bono cases. Unsurprisingly, clients with limited income often use credit cards to make purchases when they do not have sufficient cash. Some clients may feel forced to use credit cards to pay for groceries at the end of the month or to cover unexpected expenses, such as car repairs. When a client misses a monthly payment, late charges and interest can quickly turn a modest balance into an unmanageable burden.
How Can Lawyers Help?
A volunteer lawyer may be able to assist a low-income debtor in finding a way out of overwhelming debt. At the initial meeting with the potential client, the lawyer must remember that the individual likely feels demoralized by his or her financial problems and anxious from creditors’ collection efforts. In many instances, the lawyer can help the situation initially simply by listening respectfully to the individual’s story.
The first step in any potential pro bono engagement is for the lawyer to check conflicts. Mindful of the high likelihood that a volunteer lawyer belongs to a law firm that in unrelated matters represents financial institutions who are creditors in the potential client’s bankruptcy case, the BBA in 2008 issued an ethics opinion analyzing conflicts in the unique context of bankruptcy. The opinion has served to encourage the participation of attorneys from large law firms in the VLP program and should be reviewed by attorneys seeking pro bono bankruptcy opportunities.
Once retained, the lawyer helps the client determine whether bankruptcy is appropriate and, if so, what type of relief is needed. At the outset, the lawyer must explain the benefits and burdens of bankruptcy. While the central goal of bankruptcy is to obtain a discharge of debts, bankruptcy also provides the benefit of the “automatic stay,” which is a federal injunction against all collection activity that takes effect when the petition is filed. The stay provides a debtor with a much needed “breathing spell” while dealing with his or her financial affairs. On the other hand, once a client obtains a Chapter 7 discharge, he or she is prohibited from obtaining additional Chapter 7 relief for the next eight years. Additionally, the bankruptcy filing can remain on a client’s credit report for up to ten years. Finally, some debts (e.g., taxes and student loans) are difficult to discharge in bankruptcy.
The lawyer must also counsel the client in selecting the appropriate type of bankruptcy relief. Under Chapter 7 of the Bankruptcy Code, a debtor’s “non-exempt” property is liquidated to pay creditors. In contrast, under Chapter 13 of the Bankruptcy Code, a debtor has the opportunity to protect his or her “non-exempt” property from the reach of creditors by paying defaulted debts over time through a repayment plan funded by the debtor’s excess income. Typically, a low-income debtor will opt for relief under Chapter 7 because the debtor does not have any “non-exempt” property to protect or because he or she does not have any excess income to fund a repayment plan.
Finally, the lawyer should be sensitive to the client’s non-legal concerns. For an individual debtor, the moral implications or social impact of walking away from debts may weigh as heavily in his or her decision as anything else. While there are no easy answers to these concerns, the lawyer should not underestimate their importance and should engage with the client in addressing them.
Following the decision to file bankruptcy, the lawyer helps the client complete and file the petition, which details the client’s assets, liabilities, income, expenses, and other financial information, and accompanies the client to the Section 341 meeting of creditors, at which creditors and the bankruptcy trustee are given the opportunity to ask the client questions before the bankruptcy court enters any discharge order. The lifespan of a typical Chapter 7 pro bono case is three to four months from initial interview to discharge.
An Enriching Experience
In our experience, helping low-income debtors obtain a “fresh start” in their financial lives through debt relief is its own reward. While we are happy to serve the community in this manner, we have also found that pro bono representation enriches our own experiences and careers. Particularly for developing attorneys, pro bono representation provides an opportunity to increase substantive legal knowledge, to sharpen client counseling skills, and to gain exposure in the local legal community. We are grateful for the VLP’s resources and support, which have afforded us these opportunities.
The BBA provides training for lawyers who would like to represent pro bono clients in Chapter 7 bankruptcy cases. For more information on opportunities with the VLP, please visit www.vlpnet.org.
Meg McKenzie Feist and Megan B. Felter are associates in the Finance & Restructuring Group at Choate, Hall & Stewart LLP in Boston.
by Anne Goldbach and Nathan Tamulis
We are attorneys for the Committee for Public Counsel Services (CPSC). As public defenders who specialize in forensics, we provide help and support to a multitude of criminal defense attorneys from all over the state. Public defenders and private court-appointed attorneys call, visit, or email us with forensics questions in almost any area you can think of where forensics plays a role in criminal cases.
Last August, on a beautiful late summer day, we traveled to Devens, Massachusetts to participate in the five week training of a very large class of new public defenders. Our regular work would be done in the early morning, during breaks, and in the evenings. The day was proceeding well, with sessions on criminal defender practice, the right to counsel, court structure, and client relations. Suddenly, the afternoon was disrupted by an important and startling announcement: Governor Patrick had ordered the immediate closing of the Department of Public Health (DPH) drug lab in Jamaica Plain! Email was pouring in, the story was all over the web, and reporters were clamoring to reach us. It was hard to imagine what sort of problems would justify shutting down the entire lab indefinitely.
We had been on alert about work coming from this drug lab since February, 2012 when we learned that a breach of protocol had occurred in June, 2011. We had already advised the defense bar that it would be unwise to accept at face value assertions made by the DPH and some prosecutors – that there had been only one minor breach of a clerical nature that hadn’t affected the accuracy or integrity of the drug analyses. In short order, we learned that Colonel Alben of the Massachusetts State Police had announced that a chemist involved in testing drugs for thousands of cases from 2003 to early 2012 had breached procedures in the handling of evidence. There was concern that people, many of them CPCS clients, were wrongly convicted on tainted evidence. We were eager to find out what the chemist had done, what other problems existed at that lab, and what the authorities knew that we didn’t yet know.
MELENDEZ-DIAZ & THE NAS REPORT
In the chaotic days that followed, we scrambled to learn more and to advise defense attorneys about how to proceed. In the midst of this, we realized that we were much better equipped to face the challenges of the drug lab scandal than we would have been just four years ago – thanks to a landmark Supreme Court decision and a comprehensive National Academies of Sciences (NAS) Report.
Until 2009, notarized certificates of drug analysis were sufficient to prove that a seized item was a controlled substance. That changed when the Supreme Court handed down the decision Melendez-Diaz v. Massachusetts, which held that pursuant to Crawford v. Washington, certificates of drug analysis were testimonial in nature and drug analysts were necessary witnesses for purposes of the Sixth Amendment. Thus, the Confrontation Clause of the 6th Amendment of the United States Constitution requires that defendants have the ability to confront and cross-examine drug analysts at trial.
This finding was complementary to another watershed moment in 2009 – the publication of the NAS Report, Strengthening Forensic Science in the United States: A Path Forward. The NAS Report made wide-ranging recommendations in important forensics applications. Justice Scalia quoted the NAS Report in Melendez-Diaz: “[f]orensic evidence is not uniquely immune from the risk of manipulation….. A forensic analyst responding to a request from a law enforcement official may feel pressure–or have an incentive–to alter the evidence in a manner favorable to the prosecution. Confrontation is one means of assuring accurate forensic analysis…”
Both Melendez-Diaz and the NAS Report advanced essential elements of our criminal justice system: transparency, accountability and scrutiny. Melendez-Diaz underscored an important principle: the Confrontation Clause protects more than the accused; it requires the system to demonstrate that it is an open and fair one, for every citizen can now see into the police car, into the laboratory, and into the courtroom. Now we had the ability to question previously inscrutable chemists on the stand, and the NAS Report provided guidance for framing and directing our questions. Now defense counsel was better equipped to fulfill the duty of scrutinizing forensic science in criminal cases to assure that it is fair and accurate.
This was to be an era of increased scrutiny of the drug labs, of their analysts, and their procedures, oversight, and documentation. This was to be an era of improved accuracy and reliability in forensic science. Both the NAS Report and Melendez-Diaz recognized that in a vacuum, test results from analytical machinery can seem impeccably objective and unimpeachable. But test results are only as good as the people who prepped the samples, maintained and calibrated the machinery, and utilized scientifically validated procedures to produce the results.
In the wake of the drug lab closure, we understood that the teachings of Melendez-Diaz and the NAS Report would be tremendously useful in fighting for our clients’ rights. Moreover, they would help us learn how a lab scandal of this magnitude could happen.
Guided by these two milestones, defense attorneys recognized the importance of educating themselves in detail about technical aspects of drug analysis. They sought the kind of discovery that would allow them to more closely scrutinize the basis of drug analysis and the people who conducted those analyses. They asked for the written procedures, the documentation of equipment calibrations, and the chain of custody which should follow drug samples from the moment of seizure, through the laboratory, and their return to police custody. They developed detailed cross-examination of the chemists who tested drugs in their clients’ cases.
As packages of discovery were turned over, a much clearer and astonishing picture of the lab started to emerge. There were no written testing procedures, no training records, insufficient documentation, insufficient Quality Control and Assurance, lax supervision, and management woes. The lab was unaccredited and unregulated by any third party organizations. Problems went unaddressed for years. One of these problems was Annie Dookhan.
Annie Dookhan was hired in November of 2003. She began testing in earnest in January of 2004 and quickly took the lead by far in number of samples tested. In 2004 and 2005 she performed three times the number of tests than her average co-worker, some of whom had years of experience. This remarkable level of performance continued through her entire eight year career at the lab. She became a mass spectroscopy chemist and also assumed responsibility for other tasks, including instrument maintenance and Quality Control and Assurance tasks. She carried on, unchecked, until the June 2011 discovery of a “small” breach that ultimately led to the unraveling of the entire laboratory. Some of the most alarming allegations thus far are that she falsified records and purposely contaminated drug samples.
GOING FROM SWIFT JUSTICE TO THE LONG HAUL
Months have passed, and the path to justice for our clients is shaping up to be a long march. The task of identifying the hundreds to thousands of clients who have been affected is ongoing. The drug lab scandal has affected so many people – those who are in custody awaiting trial, those who stand convicted on the basis of potentially tainted evidence and are serving sentences or are on probation and parole, and those who have completed their sentences. On the basis of these tainted cases, people have been held in custody by immigration, or lost their jobs, public housing, drivers’ licenses, or even lost custody of their children. The list goes on and on.
Courts are working to find ways to handle these cases. Motions to withdraw guilty pleas and motions for new trials have been heard and will be heard. In some cases, clients have obtained resolutions by way of pleas to lesser charges and more lenient sentences. Other cases are moving to the Appeals Court and the Supreme Judicial Court as the District Attorneys challenge the authority of specially assigned magistrates and the allowance of some motions. Calls from the defense bar for a unified, systemic solution have gone unanswered to date.
The NAS Report says “…. the quality of forensic practice in most disciplines varies greatly because of the absence of adequate training and continuing education, rigorous mandatory certification and accreditation programs, adherence to robust performance standards, and effective oversight. These shortcomings obviously pose a continuing and serious threat to the quality and credibility of forensic science practice.” These were all serious problems at the DPH Drug lab, issues that allowed misconduct to go uncorrected for years.
As put forth by Melendez-Diaz, the heart of our adversarial system is confrontation and inquiry. The defense bar will continue to ask questions of the analysts to see that justice is done for our clients. Armed with the NAS Report, and a new appreciation for how forensics should properly be viewed by the courts, we will continue to fulfill our role as zealous advocates. Proper advocacy by defense counsel is not only important to the rights of individual defendants but also essential to the proper functioning of our justice system. We will improve the system.
ANNE C. GOLDBACH is the Forensic Services Director for the Committee for Public Counsel Services. In this capacity, she acts as a resource on forensics issues and experts for public defenders and private counsel attorneys across the state.
NATHAN A. TAMULIS is a Forensics Support Attorney with CPCS. He has many years of experience in the laboratory and uses that knowledge to assist defense attorneys with forensic issues.