by Francis V. Kenneally
Voice of Judiciary
Managing the first degree murder caseload of the Supreme Judicial Court is a challenge – interesting and usually enjoyable, but definitely a challenge. For reasons tied to the cases of Nicola Sacco and Bartolomeo Vanzetti, which began almost 100 years ago, appeals from convictions of first degree murder are different from any other type of case, criminal or civil. Moreover, both because of these differences and the seriousness of the crime and sentence involved, there are a number of different players, individual and institutional, that have strong interests in how these appeals are handled. The following discusses the unique aspects of first degree murder appeals, how they have contributed to a backlog of pending first degree murder appeals in the full court, and the court’s recent efforts to address some of the historic issues affecting its first degree murder docket.
Appeals from first degree murder convictions are entered directly in the SJC; in contrast to almost all other types of appeals, the Appeals Court does not have concurrent jurisdiction with the SJC to hear first degree murder appeals. See G. L. c. 211A, § 10. The statute governing appellate review of first degree murder convictions, G. L. c. 278, § 33E, directs the SJC to consider the “whole case,” and – unlike virtually all other appeals – review is not limited to issues that have been properly preserved. Rather, § 33E provides that “the court may, if satisfied that the verdict was against the law or the weight of the evidence, or because of newly discovered evidence, or for any other reason that justice may require (a) order a new trial or (b) direct the entry of a verdict of a lesser degree of guilt.” See, e.g., Commonwealth v. Dowds, 483 Mass. 498, 513 (2019) (In the unique circumstances of this case, a “verdict of murder in the second degree is more consonant with justice than is a verdict of murder in the first degree.”).
This special, fulsome “33E review,” as it is called, has led the court to schedule longer oral arguments than is regularly allowed in any other appeal – twenty minutes per side versus fifteen. And it is this statutory duty to review the whole case combined with other provisions in 33E, particularly those governing motions for a new trial, that makes managing the first degree murder docket so challenging. Apart from any other post-conviction motion for a new trial, 33E draws a critical distinction between motions filed before the direct appeal is finally decided by entry of the appellate rescript 28 days after the appellate decision is released, and motions filed post-rescript. As to new trial motions filed before the appellate rescript, the motion must be filed with the Supreme Judicial Court for the Commonwealth, which, with rare exception, remands the motion to the Superior Court for disposition. The goal – certainly of defense counsel – is to have any appeal from the denial of such a motion in the Superior Court joined with the direct appeal of the underlying conviction because, if it is, the combined appeals both get the benefit of 33E review. And even if the appeals are not combined, an appeal from a denial of a new trial motion that is filed before entry of the appellate rescript in the direct appeal receives direct review by the full court. Commonwealth v. Raymond, 450 Mass. 729, 729-30 n. 1 (2008).
The landscape, however, changes dramatically if the motion for a new trial is filed after the full court decides the defendant’s direct appeal and the appellate rescript enters. The motion must then be filed in the Superior Court, and if denied, the defendant must apply for leave from a single justice of the Supreme Judicial Court to allow review of the Superior Court’s denial by the full court. A defendant’s desire to litigate fully a motion for a new trial before a decision on the direct appeal is understandable and borne out by the statistics on “so-called” gatekeeper petitions. From 2014 to 2018, 109 gatekeeper petitions were filed in the Supreme Judicial Court for Suffolk County (the county court), and were reviewed by a single justice. Of these, 97 were denied, 5 were allowed to be reported for review to the full court, 4 were dismissed, and 3 were withdrawn. If the single justice denies a gatekeeper petition, there is no appellate review of the denial. Commonwealth v. Gunter, 456 Mass. 1017, 1017 (2010).
Working together, these statutory provisions can cause lengthy delays in the court’s consideration of first degree murder appeals. For obvious reasons, defendants do not want their direct appeals heard before thoroughly exploring the possibility of filing and litigating motions for a new trial not only to preserve the right of appeal from any denial (and thus avoid the gatekeeper) but also to ensure 33E review. So, historically, at the request of defendants, the court has stayed direct appeals virtually indefinitely while the new trial motion is litigated in the Superior Court. Litigation in the Superior Court may take years for a variety of reasons, including (among others): the trial judge may have retired and reassignment is necessary; Superior Court judges are working to capacity on their current dockets; the parties battle over post-conviction discovery before the motion is finally presented and heard; and, because of some recent appellate decisions, there appears to be an increasing number of evidentiary hearings, which results in scheduling challenges and delays to accommodate the calendars of witnesses – expert witnesses in particular – as well as judges and counsel. As a result, appeals have been stayed for 5, 10, and at times more than 15 years.
Another cause of delay is the frequency of motions for appointment of new counsel filed by defendants or motions to withdraw filed by counsel; not infrequently, these occur multiple times in a single appeal. The Committee for Public Counsel Services must then find new counsel from its limited list of attorneys qualified to handle first degree murder appeals. Each new appointment of counsel, some many years after entry of the appeal, slows the progress of the appeal because new counsel must, at a minimum, become acquainted with a new client, meet with predecessor appellate counsel, speak with trial counsel, review voluminous files and transcripts, and decide whether to file a motion for a new trial.
The confluence of these factors led the SJC, in April 2018, to examine its first degree murder docket, identify areas of concern, and address some of the docket’s unique, systemic problems. The murder docket at the time had 129 pending appeals with the oldest of these entered in 1996. The caseload consisted of 22 appeals that were entered from 1996 to 2010, 60 from 2011 to 2015, and 47 from 2016 to 2018. Undue delay, in some but not all of these appeals, thwarts the judiciary’s obligation to provide justice fairly and efficiently: if there is error requiring a new trial, delay may jeopardize the Commonwealth’s ability to retry the defendant; delay undermines the public perception of the administration of justice, especially by the families of murder victims; and delay has caused defendants to question the fairness of a process that takes so long.
To that end, the Justices appointed retired Supreme Judicial Court Justice Margot Botsford as a special master in April 2018 to help manage the first degree murder docket and devise strategies to resolve long-standing problems. Through regular status conferences with attorneys, the special master implemented individualized case management plans in the oldest cases. These status conferences focused on: (1) the oldest murder cases; (2) newer murder cases; (3) cases in which counsel have appearances in 5 or more murder appeals; and (4) cases where the defendant’s presence was required. At this writing, the special master has held over 170 status conferences.
As part of the case management plan, the full court clerk’s office reviews every Superior Court docket where a motion is pending after remand and sends a monthly report to the Chief Justice of the Superior Court. The report includes information about motions in need of assignment, due dates for the Commonwealth’s responses, scheduled evidentiary hearings, pending motions for a new trial and for discovery, and any motions currently under advisement.
In the meantime, the full court explored the possibility of establishing special time standards in first degree murder appeals by way of a standing order. Before doing so, Chief Justice Gants and Justice Gaziano met in January 2019 with a group of stakeholders that included the special master, defense attorneys, and assistant district attorneys. This meeting provided an opportunity to discuss general concerns about the full court’s first degree murder docket and specific concerns about the adoption of a standing order for the docket.
Following this meeting, in April 2019, the court published a proposed standing order governing first degree murder appeals with a request for comment. After consideration of comments received from the bar and the judiciary, the proposed standing order was revised and adopted by the full court on August 6 with an effective date of September 4, 2019. See https://www.mass.gov/files/documents/2019/08/07/sjc-standing-order-governing-first-degree-murder-appeals-effective-september-2019.pdf
The standing order imposes time standards designed to remedy undue delay. Motions for a new trial must be filed “as soon as reasonably practicable but no later than 18 months after entry of the direct appeal.” However, the special master has broad discretion to allow extensions “on a substantial showing of need.” A timely filed motion guarantees that both the direct appeal and the appeal from any denial of the motion for a new trial will be considered together. If a motion for a new trial is not timely filed, there is no longer a presumption, formal or informal, that review of any denial of that motion for a new trial will be considered at the same time as the direct appeal.
To help identify any transcription issues at an early stage of the appeal, the defendant is required to report whether all transcripts necessary for appellate review have been filed with the clerk within 4 months after entry of the appeal. Status conferences, which had previously been scheduled on an ad hoc basis, must be scheduled 6, 9, 12, and 15 months after entry of the direct appeal. At the first status conference, and if necessary thereafter, the special master will discuss with counsel the likelihood that the defendant will be filing a motion for a new trial, and if so, discuss the scheduling of that motion – all to ensure that absent compelling circumstances, any motion will be filed within 18 months of the entry of the direct appeal. Finally, where a motion to withdraw is allowed and new counsel is appointed, deadlines previously imposed remain in effect despite the change in counsel. The special master may, however, adjust the deadlines for status conferences, briefs, and new trial motions for good cause.
Whether these case management innovations lead to lasting changes to the full court’s first degree murder docket remains to be seen. It is clear, though, that it will take the concerted effort of many to balance the interests of all stakeholders and promote efficiency without sacrificing fairness.
Francis V. Kenneally is clerk of the Supreme Judicial Court for the Commonwealth. He serves on the SJC’s Standing Advisory Committees on the Rules of Civil Procedure and on the Rules of Appellate Procedure, and served as co-chair of the SJC’s Appellate Pro Bono Committee.
by Hon. John D. Casey
Voice of the Judiciary
I have always considered it an honor to be a part of the Probate and Family Court, first as a practicing attorney, and then as a judge. Now as Chief Justice, I more fully realize and appreciate the special nature of this Court and its judges and staff. I have met with people from every division to discuss my vision for the Court, and, in the process, have learned about their hopes for and commitment to the Court. On a daily basis, the judges and staff rise to the challenges of working in a court that interacts with people during some of the most difficult times in a person’s life.
The Probate and Family Court is different than the other Trial Court departments. Domestic relations litigation and probate litigation are unique in that each case involves a family situation or dynamic and has the potential to span years. In most cases, the parties must continue to interact with each other during and after difficult litigation. Because of this, litigants require compassion and must be treated with dignity and sensitivity. Many need to be educated on court processes because they do not have attorneys to explain what they will encounter and what is expected of them.
The mission of the Probate and Family Court is to “deliver timely justice to the public by providing equal access to a fair, equitable and efficient forum to resolve family and probate legal matters and to assist and protect all individuals, families and children in an impartial and respectful manner.” Since the economic downturn of 2008-2009, the ability of the Court to accomplish this mission has been severely strained. In the ensuing years, the Court relied on judges and staff to go above and beyond, and so many did. In addition, the bar volunteered to help in various ways, such as the Lawyer of the Day program, bar association conciliation programs, and Attorneys Representing Children (ARC) programs, to name a few. The challenges for the Probate and Family Court were noted by Chief Justice Ralph Gants in his State of the Judiciary address in October 2017 when he stated, “The burdens we place on our Probate and Family Court judges are simply not sustainable; we need to reimagine how we do justice in our Probate and Family Court.” To that end, different groups worked toward creative solutions for case management and staffing, while Chief Justice Gants and Chief Justice of the Trial Court Paula Carey advocated for additional funding for the Probate and Family Court at the State House. In the fiscal year 2019 budget, the Court received additional funds to address the specific needs of the Court – the need to hire sessions clerks and legal research and writing staff, the need for case management triage, and the need for alternative dispute resolution resources. I am proud to report that as a result of these additional funds, the Probate and Family Court has taken steps to start the reimagination of the Court, as Chief Justice Gants envisioned.
As part of this process, the Court set a goal of having one sessions clerk for each judge, so that judicial case managers and assistant judicial case managers could then spend their time outside of the courtroom working on case management. With the additional funds, the Court met that goal, hiring sessions clerks throughout the Commonwealth. In addition, three law clerks and two research attorneys have been hired. The Court now has eleven law clerk positions and seven research attorney positions dedicated to assisting the judges with their legal research and writing.
With regard to case management, I plan to solidify and build on ideas that have been discussed for many years. First, I want to emphasize to all staff, judges, and attorneys that every case is not the same, and should not be treated the same. By engaging in the early screening of cases, staff will put each case on its own path, taking into consideration various issues, including whether the case is uncontested or contested, straightforward or complex, whether the parties are self-represented or have counsel, and whether the case is ripe for alternative dispute resolution such as conciliation, mediation, or dispute intervention. Second, litigants will be educated on court processes and referred to services like alternative dispute resolution. This model has proven successful in the Middlesex Division and Essex Division on so-called “block days” with cases that involve child support with the Department of Revenue and also parenting issues. Litigants are referred to on-site mediators who assist the parties in resolving both child support and parenting issues at the same time, and with only one court appearance. We are not the first or only Trial Court department to use differentiated case management. We are, however, the Trial Court department that faces the challenge of implementing a new case management process with a population that is overwhelmingly unrepresented by counsel and that has recurring issues. Training is required to successfully implement these changes to case management. We have begun this process by conducting trainings for sessions clerks and assistant judicial case managers. We will continue to train all members of the Probate and Family Court so that we can rise to the challenges we face and meet our mission.
As I start my second year as Chief Justice, I am aware that nothing we do to improve the Probate and Family Court is done without the help of many different people and organizations – legislators, attorneys, bar associations, staff, judges, Chief Justice Gants, Chief Justice Carey, Court Administrator Jon Williams, and Deputy Court Administrator Linda Medonis. To all of you, I say thank you. Thank you for sharing your ideas about how the Probate and Family Court can be better. Thank you for your patience, as we all know that successful change takes time. But most of all, thank you for supporting me and the staff and judges of the Probate and Family Court as we make changes to enhance everyone’s experience with the Court.
The Honorable John D. Casey was appointed to the Probate and Family Court in 2006 and became the Chief Justice in July 2018. He previously served as the First Justice of the Norfolk Division of the Probate and Family Court. Chief Justice Casey graduated from Bates College and Suffolk University School of Law.
by Gordon H. Piper
Voice of the Judiciary
I am honored to have been asked to offer a few initial observations about the Land Court Department, from my new perch as its Chief Justice, a role I assumed at the end of October last year. I thank Trial Court Chief Justice Paula M. Carey for selecting me to serve.
We at the Land Court relish our status as the smallest of the seven departments of the Trial Court. Our seven justices hear cases from every corner of the Commonwealth. We “have gavel, will travel,” trying cases from Pittsfield to Nantucket, and in many courthouses in between. Our center of gravity does remain the high-rise courthouse on Pemberton Square in Boston, where most hearings take place, the Recorder’s office is located, and the court’s legal, title examination and surveying experts are based.
We also are enthusiastic about our responsibilities to adjudicate cases placed in our specialized jurisdiction. Our justices–and everyone else at the Land Court–appreciate the trust placed in us to understand and apply the law in a broad range of real-estate-related cases. We understand that lawyers and parties come to the Land Court expecting us to be up to speed and engaged on the subject matter with which we have been entrusted. While many of our judicial colleagues sitting in other departments of the Trial Court (and even some members of our own families) may quietly wonder, looking at the types of cases we hear, how the judges of the Land Court get up and come to work each morning, I assure you that we do so with gusto. We value role we play in the development of the common law of real estate in Massachusetts.
I have taken on my new job at a time of considerable change and opportunity at the court. My immediate predecessor, Chief Justice Judith C. Cutler, reached the age of retirement after a decade on the bench, the last five years as our Chief. And her predecessor, Chief Justice Karyn F. Scheier, also retired at the end of 2018; she had been a member of the court since 1994, including ten years as Chief Justice. These two distinguished jurists left indelible positive marks on our court and the Commonwealth’s judicial system.
We were delighted to welcome in January of this year Justice Jennifer S. D. Roberts and Justice Diane R. Rubin, who came to the Land Court after long years of prominent private practice and are leaping into their new positions, taking on very ample caseloads. They join four other greatly accomplished and respected Associate Justices, Hon. Keith C. Long, Hon. Robert B. Foster, Hon. Howard P. Speicher, and Hon. Michael D. Vhay. It is good to have our right-sized court up to its full fighting strength, at least for now. And I am grateful not only for the talent and dedication of my judicial colleagues, but of the entire leadership and staff of the court, including (but by no means limited to) Recorder Deborah J. Patterson, Deputy Court Administrator Jill K. Ziter, Deputy Recorder Ellen M. Kelley, Chief Title Examiner Edmund A. Williams, and Chief Surveyor Stephen LaMonica.
Improvements over the last several years in the general and real estate economies of the Commonwealth have brought a change in the mix of the court’s work. When the real estate markets were moribund and property values stayed stagnant, a disproportionate share of the court’s work concerned mortgage foreclosure and tax lien foreclosure matters, and others arising out of transactions and development plans in distress. Servicemembers Civil Relief Act cases have declined somewhat from the peak of more than 30,000 new cases filed in a year. More recently, an increasing percentage of our case load is driven by the state’s vibrant development activity–zoning and subdivision permit appeals, including some arising out of very large and complicated project plans. We also have rapid growth in the court’s volume of partition cases, with common owners of land seeking the court’s aid in equitably dividing their joint real estate asset. Both land use and partition cases demand additional courtroom time and more legal research and writing, continuing the pressure on the judges and staff of the court to keep up.
The court, which labors a bit with an undeserved reputation as a place of green eyeshades and quill pens, is moving ahead with a number of twenty-first century innovations. Like the rest of the Trial Court, the Land Court has embarked on e-filing of cases. We are underway with an initial pilot program in our Servicemembers Civil Relief Act case type, our largest by volume, and expect soon to expand that pilot to include more filers, before opening those cases to e-filing by all lawyers and firms. Following that, we intend to pilot e-filing in another large category of cases, those seeking the foreclosure of the right of redemption following real estate tax lien takings. Over the next several years we will push to bring e-filing to a wide variety of the court’s docket, including most of our Miscellaneous case types. The density of pleadings filed in many Land Court cases–a number of which include large plans, lengthy reports, and other challenging exhibits–may present some challenges, but the court shares with the bar the goal of being able over the coming years to have filed and accessed on line most of our ordinary case types. We soon will launch in at least one of the court’s sessions a trial of a “judicial tools” setup, which should allow the judge and clerk in that session to work with digital versions of many of the filings in the cases that judge is hearing.
We also have commenced work on modernizing the computer systems used by our Surveying Department, with the intention to have current drafting and survey production and indexing capabilities in use. The court is the repository of registered land plans from across Massachusetts dating back to soon after the founding of the Land Court in 1898, and, in later phases of this project, we hope to have digitized many of these critical plans, to enhance access to them by the bar, surveyors, and the public.
In a continuing effort to provide more efficient hearing and disposition of contested cases, a committee now chaired by Justice Speicher is convening, and will look over the court’s rules, standing orders, and procedural practices, building on past rules changes to expand opportunities to expedite, simplify, and reduce the cost of litigation in the Land Court. We anticipate soliciting the involvement of the bar and other stake holders in this effort over time. A related effort will look over the court’s mediation and other alternative dispute resolution process and methods. While we of course will insure every litigant the chance to have his or her case decided by the court, we acutely are aware that not infrequently the best resolution is one the parties themselves reach. We intend to seek out more and better ways to facilitate that.
One area of the court’s business that continues to grow in volume and complexity are the many cases subsequent to registration, our “S-cases,” in which the court is asked to make orders relative to the certificates of title for registered land. Our long-time Chief Title Examiner, Edmund Williams, soon will be retiring after decades of extraordinary service to the court, the conveyancing bar, and the citizens of the Commonwealth. He has helped the court issue extensive guidelines and guidance to the court’s land registration districts and the real estate bar. His successor, once selected and in place, will be challenged to hold to the high standards of the court’s Title Examination Department, and to continue positive strides made in the processing of the important S-case petitions. The last comprehensive revision to the court’s Guidelines on Registered Land issued in 2009, and the new Chief Title Examiner will work closely with the justices of the Land Court, with the input of the court’s Assistant Recorders and the bar, to make any needed updates and expansions to those guidelines.
My new post as Chief Justice of the Land Court presents exciting opportunities and challenges. I am grateful to have the very best judicial colleagues, court leaders, and so many other members of the Land Court team working alongside me, helping the court achieve great things for the users of the court and the citizens we serve.
The Honorable Gordon H. Piper has served on the Land Court since his appointment by Governor Jane M. Swift in 2002. Trial Court Chief Justice Paula M. Carey appointed him Chief Justice of the Land Court Department in October, 2018. Chief Justice Piper holds a 1978 bachelor of arts degree from Vanderbilt University, summa cum laude, where he was admitted to Phi Beta Kappa. In 1982, he received his JD degree, cum laude, from Cornell Law School.
by Mark V. Green
Voice of the Judiciary
A few months past my first anniversary as Chief Justice of the Appeals Court, I am pleased to have been invited to offer a few reflections about the Court, and my initial experience as Chief.
I am fortunate to have taken on my new duties at a time of great transition at the Court. A number of long term senior managers and other employees have recently retired. In addition, half of the Justices on the Court have been appointed within the last 3 1/2 years. With those changes in personnel, along with the adoption of new technology, have come both the need and the opportunity to reexamine many of our operations, and in many ways to reimagine the Court itself. More directly and immediately, the changes have provided me with the opportunity to assemble a terrific senior management team with the hiring of our new Court Administrator Gina DeRossi and the promotion of Mary Bowe to the position of Chief Staff Attorney, who join our Clerk Joe Stanton, our Law Clerk Manager Maggi Farrell and my incomparable assistant Monique Duarte.
We are very pleased with the success of our movement to a digital platform. By rule, all nonimpounded and non pro se briefs and other materials are now filed electronically, and we take in no paper at all in those cases (which comprise well over 90% of our filings). The Justices have for several years – even before e-filing began – worked with case materials largely without resort to hard copy, preparing for, and participating at, oral argument with iPads. Justices circulate draft opinions to the other members of the panel – and in the case of published opinions, to the entire court – for review by email, and the entire editorial process thereafter is fully electronic. Besides saving trees, the digital platform offers more convenient access to the information, and saves time as the content is transferred from the Clerk’s Office to the Justices, and then among panel members and support staff as opinions are processed toward release; by contrast, when I arrived as part of the Court’s expansion in 2001 all opinions were circulated in hard copy by interoffice mail, and all comments returned in the same matter, often taking days or week for communication of comments that now are often completed in an afternoon.
The increase in convenience and efficiency has translated to an acceleration of our speed. We are reaching cases for argument, and deciding them after argument, as quickly as ever in the Court’s history. Most cases are argued between four and four and a half months after they are briefed and ready; by way of comparison, when I joined the Court, it took fourteen months to reach criminal cases after they were briefed and ready, and twenty-two months to reach civil cases. And over the past twelve months, the median time for release of a decision after argument was fifty-four days. On a somewhat related note, I am also pleased to report that we are hearing argument in an increasing share of our cases – more than 75% now, compared to around 60% just eight or nine years ago, and around 50% in the more distant past. Breaking with tradition, we held panel hearing sessions in July 2018, to positive response, and hope to repeat that pilot program this coming summer.
We are also able to make more information easily available to our stakeholders. Except for impounded cases, our hearing lists and docket sheets are available on our website, as are briefs in cases scheduled for argument. Since January, audio recordings of oral arguments are also now made available on the website within a few days. We recently compiled a manual of our internal operating procedures, and expect to make it available on our website in the near future.
We are expanding our outreach in other ways as well. We regularly conduct panel hearings away from the John Adams Courthouse, at various law schools and other venues in all corners of the Commonwealth. Thanks to the sponsorship of the Flaschner Judicial Institute, and jointly with the Supreme Judicial Court, we held a terrific bench-bar conference in December, and we are currently assessing what we learned from our bar colleagues, and how best to respond to their suggestions. And we are working to improve the frequency and content of our communication with the bar and the public, through the Listserv maintained by Clerk Stanton and the quarterly Review produced by Court Administrator DeRossi.
I previously mentioned the significant number of newly appointed Justices on the Court. They have brought energy, intellect and fresh perspective to an already strong Court. I consider among my most important responsibilities as Chief the duty to instill in our new arrivals a sense of the culture and traditions of the Court. And in that regard, it is a particular priority to preserve and enhance the Court’s culture of collegiality, mutual respect and effective communication, while pursuing the highest level of excellence in our decisional work that we can attain. So far, at least, and with the assistance of my other more seasoned colleagues (and, of course, the talent and dedication of the new recruits), it seems to be working. I am also indebted to many of those who welcomed me when I arrived on the Court, and in particular former Chief Justice Armstrong and Justices Brown, Dreben and Kass, who each came back last spring for a series of “Lunches with the Legends.”
In a little more than three years, on October 6, 2022, the Appeals Court will mark its 50th anniversary. Compared to the Supreme Judicial Court (which celebrated its 325th last year), the Superior Court (which celebrated its 150th a few years before that), or even the Land Court (which is coming up on its 125th in a few years), we are still young. And, as I have mentioned, we are in an exciting time of transition and opportunity. I consider it a unique privilege to be entrusted with stewardship of the Court at this exciting time.
The Honorable Mark V. Green was appointed Chief Justice of the Appeals Court by Governor Charles D. Baker on December 6, 2017, having served on the Court as an Associate Justice since his appointment by Governor Jane M. Swift on November 1, 2001. He holds a bachelor of arts degree in philosophy from Cornell University, with distinction in all subjects, and is a 1982 cum laude graduate of Harvard Law School.
by Hon. Robert L. Ullmann
Voice of the Judiciary
Advising the Commonwealth’s highest court about an institution older than the Massachusetts Constitution, and one that operates in secrecy, was the daunting mandate given to the 14 members of the Supreme Judicial Court Committee on Grand Jury Proceedings (“SJC Grand Jury Committee”).
The Supreme Judicial Court (“SJC”) appointed us last year to gather information about how prosecutors present evidence to and instruct grand juries, and to seek to identify “best practices” for grand jury presentments.
Not surprisingly, given the committee’s composition of prosecutors, defense attorneys, sitting and retired judges, and one law professor, the search for best practices involved extensive and at times passionate debate. Perhaps surprisingly, the committee was able to reach consensus on a significant number of best practices in six core areas of grand jury activity, with extensive input from the bar, in particular the Commonwealth’s prosecutors’ offices.
The committee’s Final Report, issued in June, is available on the Supreme Judicial Court website.
Grand juries hear and view evidence presented by prosecutors and decide whether probable cause exists to return indictments on felony charges. Like trial jurors, grand jurors are chosen from randomly selected groups of citizens (venires) summoned to courthouses in each county. Unlike trial court proceedings, however, judges and defense lawyers are not present for grand jury proceedings, and a grand jury witness’s lawyer may be present solely to advise the witness. The judicial branch oversees the grand jury, but prosecutors run the grand jury’s day-to-day activities.
In identifying best practices, the committee recognized that grand jury presentment is a prosecution function that the SJC has described as subject to “limited judicial review.” Commonwealth v. Noble, 429 Mass. 44, 48 (1999). However, committee members also recognized that the grand jury is “an integral part of the court,” and that judges have a “duty to prevent interference with [grand jurors] in the performance of their proper functions, to give them appropriate instructions, and to assist them in the performance of their duties.” In re Pappas, 358 Mass. 604, 613 (1971).
The best practices address issues such as what to do when grand jury subpoenas yield evidence that the prosecutor deems too inflammatory to present to the grand jury; when grand jurors should be instructed on defenses to the crime or on lesser included offenses or other less serious charges than the most serious potential charge; what warnings should be given to targets of investigations; and when and how grand jurors should be instructed on the law.
All of the recommended best practices are currently employed by one or more prosecutors’ offices, demonstrating that the state’s prosecutors were already taking the initiative in exploring practices to ensure that grand jurors are adequately instructed and that the integrity of grand jury presentments is not impaired. The recommended best practices were selected because they assist grand juries in performing their dual functions of determining probable cause to charge someone with a crime and protecting persons from unfounded criminal prosecution. All of the recommendations are fully consistent with existing SJC and Appeals Court law.
Creation of the committee and its work
The committee arose from the SJC’s opinion in Commonwealth v. Grassie, 476 Mass. 202 (2017), in which the Court stated that it would convene a committee on grand jury practices before considering an extension to adults of the rule adopted for juveniles in Commonwealth v. Walczak, 463 Mass. 808 (2012). In Walczak, the Court required prosecutors to provide certain legal instructions to grand jurors when prosecutors seek to indict a juvenile for murder and substantial evidence of mitigating circumstances or defenses exists.
Although the committee arose out of one court decision, the SJC did not limit the scope of the committee’s fact-gathering and asked the committee to recommend best practices in any area of grand jury practice it wished to consider. This broad mandate raised concerns among many of the Commonwealth’s elected prosecutors.
When the committee sought public comment on a draft of its proposed best practices in March, a considerable number of district attorneys criticized the proposals as an unconstitutional intrusion by the judiciary into the exclusive role of the executive branch in making charging decisions. A few district attorneys also saw the proposed best practices as an attempt to impose on them “one size fits all” practices similar to federal grand jury requirements. In addition to raising these broad concerns, the district attorneys offered detailed critiques of specific proposals. The committee also received comments from the Committee for Public Counsel Services, the Boston Bar Association, and several individuals. The committee carefully reviewed all and adopted many of these comments, resulting in an improved set of best practices and commentary which were submitted to the SJC in June.
The committee also considered the broader concerns raised by district attorneys but ultimately concluded that recommending best practices on the presentation of evidence and instructions to grand juries fell squarely within the SJC’s charge to the committee. Moreover, given the judiciary’s role in ensuring the integrity of grand jury proceedings, the committee believed that recommending best practices from existing prosecutors’ office practices did not violate the separation of powers, intrude upon prosecutorial discretion in charging decisions, or impose a “federalized” one-size-fits-all approach to grand jury practice.
Having served on criminal law reform committees for over three decades, I was deeply gratified to see experienced prosecutors and defense attorneys (and the rest of us) forcefully express opposing views, but carefully listen to each other and put aside parochial concerns to reach principled compromise. There is a nationwide trend toward prosecutor best practices, but the practices typically cover areas other than the grand jury, and non-prosecutors are rarely involved in the process. Because our committee had representation among a range of participants in the criminal justice process, the practices that we unanimously viewed as exemplary should have added credibility.
Our committee had no authority to require the implementation of best practices, and the Final Report explicitly states that it is “not intended to give substantive or procedural rights to people accused or convicted of crimes or to serve as the basis for motions to dismiss indictments.” Over time, courts may look to the best practices we identified to render legal decisions, but that was not the purpose of our work. I believe that I speak for the entire committee in expressing the hope that the Commonwealth’s prosecutors on their own initiative will recognize what is exemplary among practices already in use, broadly adopt those practices, and continue the process of developing new best practices in the future.
Robert L. Ullmann has been an Associate Justice of the Massachusetts Superior Court since 2013. He was chair of the Supreme Judicial Court Committee on Grand Jury Proceedings.
In addition to the author, the other committee members were Hon. Peter W. Agnes, Jr., Appeals Court; Janice Bassil, Esq; Berkshire District Attorney Paul J. Caccaviello ; Hon. Judd J. Carhart, Appeals Court (retired); Assistant Attorney General David E. Clayton; Middlesex Assistant District Attorney Kevin J. Curtin; Deputy Chief Counsel Randy Gioia, Esq., Committee for Public Counsel Services; Hon. Bertha Josephson, Superior Court (retired); Clinical Professor Diane S. Juliar, Suffolk University Law School; Bristol District Attorney Mary E. Lee, Kevin M. Mitchell, Esq.; and Suffolk Assistant District Attorney Donna Jalbert Patalano (prior to her departure from the district attorney’s office.) Maureen McGee, Esq. was counsel to the committee.
by Hon. Jay Blitzman
Voice of the Judiciary
The Supreme Court has abolished the juvenile death penalty, mandatory juvenile life without parole, and in acknowledging the reality of adolescent brain development, has outlined a regime of proportional accountability. Children are constitutionally different than adults. Research has demonstrated that reducing detention also reduces recidivism by promoting the socially connective tissue of family, school, and community that is vital to positive youth development. We can protect public safety at less cost. Youth who do not graduate from high school are eight times more likely to later be arrested and it costs three to five times more to incarcerate than to pay for public education.
The message of proportional accountability has implications in all contexts, including zero tolerance in schools, mandatory transfer and collateral consequences. However, in an era of dramatically declining juvenile arrest rates, this promising landscape has been complicated by a counterintuitive narrative – the recriminalization of status offense conduct that was decriminalized in the aftermath of In Re Gault, 387 U.S. 1 (1967). This has manifested itself in various forms, including treating status offenders as probation violators in some states and imposing conditions of supervision which are status offense-like in nature (e.g. attending school without incident), and commitments for probation violations not related to re-offending. This article focuses on another aspect of this process- the surge of school referrals to juvenile justice which, as discussed in Arrested Futures, a collaboration between the ACLU of Massachusetts and the Massachusetts Citizens for Juvenile Justice, has unfortunately involved many arrests for essentially non-violent normative adolescent behavior.
Nationally about 84% of youth in the juvenile justice system are there for non-violent conduct and over two-thirds of this number are youth of color. Although detention and commitment rates have declined, racial and ethnic disparities have increased. In 2017, the Sentencing Project reported that African-American youth are five times more likely to be held than whites, Latino youth are 65% more likely to be held, and Native American youth were three times more likely to be detained. LGBTQ- gender non-conforming youth comprise 5% of the nation’s youth population, but 20% of those are detained and 85% of that number are youth of color. Over 75% of children who appear in juvenile sessions have mental health or clinical issues as courts have become default service providers.
Issues affecting children should be considered in the context of the larger systems that affect them. The multi-faceted factors that contribute to the school-to-prison pipeline implicate fundamental questions of race and class. As Marian Wright-Edelman has observed, the school-to-prison pipeline runs through economically depressed neighborhoods and failing schools. Over sixty years after Brown v. Board of Education held that separate in public education is per se unequal, our schools remain segregated. The issue is national in scope. New York City, for example, has perhaps the most segregated school system in the country. In a real sense we live in a world that is still separate and unequal. Access to adequate public education remains an access to juvenile justice issue. Professor Charles Ogletree has concluded that as regards Brown’s legacy, there is little left to celebrate. In The Color of Law, Richard Rosenstein attacks the premise of de facto segregation, arguing that geographical segregation is the result of race conscious de jure actions which have included zoning, housing, school siting, and urban renewal polices.
Where people live matters. The Boston Globe recently reported that the Brockton school system was only able to spend $1.28 per student on classroom supplies during the 2016-2017 school year, while Weston allotted $275.00 per student. The adverse impact of geographic segregation is reflected in the reality that we see the same children and families in the child welfare system as we do in the juvenile system, with the same rates of racial and ethnic disproportionality. Between 2010 and 2012, 72% of the children committed to the Massachusetts’ Department of Youth Services had been involved with the Department of Children and Families (DCF.) and over half of that number’s families had been involved with DCF before they were five. Every time a child’s placement in foster care is changed it is estimated they lose six months of educational progress which compromises their ability to graduate. Marian Wright-Edelman and others now use the phrase cradle-to-prison pipeline.
Police have been in schools since the civil rights era, but after the 1999 school shooting in Columbine, police presence in schools accelerated exponentially as did the expanded use of “zero tolerance” formerly reserved for guns and drugs. Police were placed in schools without first considering their relationship with educators and the scope of their authority. Police officers were largely placed in schools serving students of color, schools which had never had a Columbine type of incident. New York City, for example, has over 5,400 school police officers. The unregulated deployment of police in schools, coupled with zero tolerance, has fueled the pipeline and adversely affected schools of color. While these practices may be rationalized as logical responses to protect children, National Center for Education data shows that reported incidents of school violence had peaked in 1994, well before Columbine, and that national juvenile arrest rates had reached their high point in 1994, and by 2016 had declined by 70%. The effects of these policies were apparent. In 2000, over three million students were suspended and over ninety-seven thousand arrested. African-American students have been three-to-five times more likely to be suspended than white students for comparable behavior, underlining the mythology of race-neutral zero tolerance.
The reality of the “pipeline” was demonstrated in 2012, when the Department of Justice accused the city of Meridian, Mississippi of operating a school-to-prison pipeline. Named defendants included the schools, police, judges, probation officers, and the state’s Department of Human Services and Division of Youth Services. While the circumstances are rarely as overt. The pipeline exists and deconstructing it requires a multi-faceted response. The Juvenile Detention Alternative Initiative JDAI), and the MacArthur Foundation’s Models for Change are examples of data based initiatives that encourage cross-system dialogue and examine evidence based practices to better protect public safety while promoting positive youth development. Massachusetts features a robust partnership with JDAI by partnering with court professionals and practitioners in an effort to decrease unnecessary detention and address racial and ethnic disparities. Adopting more proportional and strength based models in engaging youth in lieu of zero tolerance regimes, as recommended by the American Psychological Association and the American Bar Association (ABA), coincides with the Supreme Court’s message of proportional accountability. Restorative justice, especially as applied in schools and communities in lieu of court referral, is an example of a public health oriented approach. Massachusetts juvenile justice reform, enacted this year, expanded diversion opportunities and allowed for the expungement of records for the first time, in certain circumstances. Of particular importance is the legislation’s call for school districts to develop memoranda of understanding to inform the relationship of school resource officers and educators. This would provide a framework for conversation and exploration of alternative action. Given the school shooting in Parkland, FL, the need to capitalize on this legislative opportunity cannot be over-emphasized, unless we wish to revisit the unintended consequences that followed Columbine. Promulgation of memoranda of understanding is consistent with JDAI initiatives and resolutions adopted by the ABA.
We have made progress through systemic dialogue, use of data, and the development of memoranda of understanding. However, to truly deconstruct the pipeline we must tackle the underlying structural realities which fuel implicit bias and the school/cradle-to-prison pipeline. Equal Justice Initiative’s Bryan Stevenson has stressed that in order to have truth and reconciliation we must address the realities of our history. Hopefully, the Boston Bar Association’s focus on this important subject will prove to be a step in the right direction.
Judge Jay Blitzman is the First Justice of the Middlesex Division of the Massachusetts Juvenile Court. Prior to his appointment he was a co-founder and the first director of the Roxbury Youth Advocacy Project, a multi-disciplinary public defender’s office, which was template for the creation of the statewide Youth Advocacy Division of C.PC.S. Jay is also a co-founder of the Massachusetts Citizens for Juvenile Justice and Our RJ, diversionary restorative justice program. Jay writes and presents regularly at a variety of forums. His most recent publications are, Gault’s Promise Revisited: The Search for Due Process (Juvenile and Family Law Journal, NCJFCJ June 2018), The State of Juvenile Justice (ABA Criminal Justice Section, June 2018), Realizing Gault’s Promise ( Arizona Attorney, May 2017) and Are We Criminalizing Adolescence? (ABA Criminal Justice, May 2015). Jay has held a variety of teaching positions. He currently teaches juvenile law at Northeastern University School of Law, and is a team leader at Harvard Law School’s Trial Advocacy Workshop program. Judge Blitzman is a member of the S,J.C. Standing Committee on Eyewitness Identification and the S.J.C. Jury Advisory Committee.
by Hon. Janet L. Sanders
Voice of the Judiciary
When I began sitting in the Business Litigation Session of the Superior Court in 2011, I was struck by two things. First, as many as three or four lawyers appeared in court on behalf of a single party. Second, the “speaking” part for that appearance invariably went to the oldest member of the legal team – and that person was usually a white male.
That person was often not the lawyer who wrote the brief on the legal issue before the court. That would become apparent when, in the course of the oral argument, the older partner would have to confer with the young (usually female) associate beside him in order to respond to a question from the court.
I was not alone in my observations. Federal district court judges across the country were noticing the same thing, and taking action. Many issued standing orders strongly suggesting – and sometimes requiring– that attorneys newer to the bar be given a chance to question a trial witness or argue a motion. In Massachusetts for example, six district court judges have such standing orders.
Unlike the federal judiciary, Superior Court judges (like most Massachusetts trial court judges) do not operate on individual calendars, rotating as we do from session to session. A standing order by an individual judge would promote inconsistency among sessions and even lead to different practices within the same session. Still, there was a sense among many of us that we should do something to encourage the courtroom participation of less experienced lawyers, particularly on the civil side where the problem is more acute.
In December 2017, the Superior Court adopted a Policy Statement that gave voice to our concerns. That policy strongly encourages lawyers in civil litigation to take “affirmative steps” to extend courtroom opportunities to less senior lawyers in their law firms. As the policy states, those affirmative steps “could include, but are not limited to, encouraging participation of relatively inexperienced attorneys in initial scheduling conferences, status conferences, hearings on discovery motions and dispositive motions, and examination of witnesses at trial.”
Because BLS cases are heavily staffed, opportunities to share the wealth abound. For dispositive motions, BLS judges are open to having lawyers for one side divide the argument among themselves. Discovery disputes and less substantive matters can be quite capably handled by a less seasoned lawyer.
Judges in regular civil sessions are also looking for ways to include more junior lawyers. Although litigation has become more complex, there are still plenty of cases which are relatively straightforward both legally and factually and which can be handed over to the more junior associate with confidence that the client will be well represented.
At trial, having an associate take responsibility for some witnesses is welcomed not only by us judges but by juries as well. Where an associate sits silently at counsel table, juries may wonder why – and perhaps not in a way that is helpful to your side where that associate is a woman or a person of color. Hearing from different examiners can enhance jurors’ attention spans. And because they are less experienced and consequently less polished, younger lawyers may come across as more genuine and more credible. Juries want them to succeed.
There are several good reasons for a policy that promotes courtroom participation by those newer to the bar. First, less experienced lawyers are able to hone their skills while they are still under the supervision of more seasoned litigators. Many of us cut our teeth in the civil motions sessions which predated the advent of Rule 9A. There were good reasons to eliminate those sessions. But it also means we have to find other ways for junior lawyers to get courtroom experience so that they can develop good habits early.
Second, the policy benefits clients. If a junior lawyer has researched the matter and written the brief, he or she is well positioned to argue that matter effectively before a judge or jury. Associates “hungry” for courtroom experience are often better prepared than their seniors. And their billing rates are lower than that of more senior lawyers.
Third, because senior lawyers tend to be a more homogeneous group, a policy that creates opportunities for younger lawyers will promote diversity in the profession.
That lack of diversity has been well documented. Although half of the law school graduates today are female, studies show that less than a quarter of equity partners in large firms are women. Among lawyers appearing as lead counsel in civil cases, only 24 percent in 2013 were women.
The gap between white partners and partners of color is even starker. According to one 2017 survey, more than 90 percent of equity partners in firms participating in the survey were white even though one in four law firm associates was a person of color. Attrition rates among minority lawyers have actually risen since 2008, with black lawyers leaving their firms at a higher rate than members of other minorities.
There may be many reasons for these disparities. Part of it could be unconscious bias on the part of those who make decisions critical to advancement, a subject beyond the purview of this article. But there is another possible explanation: the young lawyer who is given little responsibility and independence is usually not a happy lawyer. That attorney will look elsewhere, particularly in the public sector where opportunities for advancement are often better.
Regardless of why gaps persist among different groups of lawyers, however, diversity in the higher echelons of the legal profession should be a goal of both the bench and the bar. A policy that encourages greater courtroom participation by those still climbing the law firm ladder may help further that goal. And that is a good thing, not just for the young lawyer but for the legal profession generally.
Hon. Janet L. Sanders was appointed to the Massachusetts Superior Court in 2001, and currently serves in one of the two Business Litigation Sessions in Boston.
by Hon. Peter B. Krupp
Voice of the Judiciary
Many times a day in a criminal session judges decide whether setting an affordable bail will be sufficient to ensure a defendant will appear for future court dates. I have set or reviewed bail in hundreds of cases. I have rarely set bail with great certainty and almost always have had to decide based on woefully imperfect information.
There are serious risks of getting it wrong. If a defendant flees, justice for a victim may be substantially delayed or denied; releasing a violent or drug addicted defendant may create a risk to public safety; and setting unaffordably high bail for a defendant may have long-term effects on the defendant, even if an acquittal follows. Compounding the problem, bail decisions usually must be made quickly, so they are disproportionately susceptible to explicit and implicit biases; and the popular press does not help, usually reporting bail as a judicial critique on the severity of the crime rather than an individualized assessment of the defendant’s likelihood of appearing on the charges.
Given these challenges, much depends on effective advocacy by lawyers who must marshal relevant facts and information. Enter the Supreme Judicial Court in Brangan v. Commonwealth, 477 Mass. 691 (2017), which trained a fresh spotlight on the reasons for bail. Although it did not purport to change the law, Brangan, at a minimum, collected and clearly articulated the foundational principles underlying bail, re-centering judges and advocates on what matters and what does not. Before addressing the need for more effective and targeted advocacy, however, a quick overview may be useful.
At a defendant’s initial appearance, the Commonwealth may in certain serious cases move under G.L. c. 276, § 58A to detain a defendant without bail as dangerous. A petition for detention under § 58A triggers the right to an evidentiary hearing to decide whether the defendant is dangerous and, if so, whether a combination of financial and nonfinancial terms can reasonably assure the safety of others and the community. If no such conditions are available, the defendant is held without bail.
In the great bulk of cases, the Commonwealth does not or cannot seek detention under § 58A, but asks that bail be set to assure the defendant’s appearance at future court proceedings. The state and federal constitutions prohibit “excessive” bail, that is, bail “‘higher than an amount reasonably calculated to’ . . . assur[e] the presence of the accused at future proceedings.” Brangan, 477 Mass. at 699, quoting Stack v. Boyle, 342 U.S. 1, 5 (1951). When it comes to bail, one size does not fit all. One size does not even fit all people who commit the same crime. Bail decisions require individualization. As the SJC wrote, “bail that is set without any regard to whether a defendant is a pauper or a plutocrat runs the risk of being excessive and unfair.” Brangan, 477 Mass. at 700. Therefore, the court must determine how much the particular defendant is able to pay, and may set bail “no higher than necessary to ensure the defendant’s appearance.” Id. at 701.
Where no § 58A petition has been filed, “[u]sing unattainable bail to detain a defendant because he is dangerous is improper”; a “judge may not consider a defendant’s alleged dangerousness” in setting the amount of bail, although dangerousness may be considered in setting conditions of release. Id. at 701, 706. Therefore, arguments that a defendant poses a danger to the community, is a threat to public safety or a security risk, has been convicted of rape, failed to register as a sex offender, or had abuse prevention orders issued against him, may be properly advanced in a § 58A hearing, but not for setting the amount of bail, id. at 706-707, at least not unless they reflect directly on the defendant’s likelihood of appearing at future court dates.
A judge must set an affordable bail if it will cause the defendant to appear on future court dates. A bail greater than what the defendant can reasonably afford, but no higher than necessary to ensure the defendant’s appearance, may only be set if the judge issues “findings of fact and a statement of reasons . . . either in writing or orally on the record.” Id. at 707. A new Superior Court form has been issued for these purposes.
In light of these principles, advocacy must evolve to address the only purpose for setting bail: to ensure the defendant will appear at future court proceedings. Certain factors considered in the bail determination, see G.L. c. 276, § 57, par. 2; G.L. c. 276, § 58, par. 1, bear more directly on the risk of non-appearance (e.g., prior defaults, flight from arrest, strong family ties outside Massachusetts, a strong case against the defendant, a high potential penalty), while others bear less directly (e.g., prior 209A orders, prior convictions, open probation matters). Myriad other factors are relevant, including a defendant’s work history, medical condition, and age.
A few examples may help illustrate how prosecutors and defense attorneys need to think through the bail issues that apply to their particular defendant:
Ability to Post Bail. If the defendant has access to resources (or not), inform the court. Bring in tax returns, pay stubs, or an affidavit from the defendant’s employer. “The defendant tells me . . .” or “the police believe . . .” are not particularly persuasive. Put together a sworn statement addressing the defendant’s assets, or explaining where the proposed bail money is coming from and what the financial resources are of the people posting bail. What amount of bail has the defendant posted in earlier cases?
Prior Court Experience. If the defendant has previously been on bail, did the defendant default or appear? The Court Activity Record Information printout (“CARI,” formerly known as the “BOP”) does not show what bail was previously set, whether the defendant was able to post bail, the defendant’s history of appearing in court, or the reason for a default; and it is not always accurate or complete. Does the defendant have a record outside the Commonwealth? There is no substitute for getting docket sheets on a defendant’s prior cases from Massachusetts and other jurisdictions. If a prosecutor wants to rely on a defendant’s failure to remove an earlier default for four months, she should come prepared with documents demonstrating the defendant was not being held on another matter at the time.
Mental health/substance abuse. If the defendant has a drug problem or untreated mental health issue, be prepared to address where the defendant will live, or who the defendant will live with, to mitigate the risk that the defendant will not appear for court. How will medication compliance be monitored? Was defendant’s substance abuse problem addressed in earlier cases?
Effective bail advocacy in the Superior Court requires preparation to dig up information about a defendant’s past and present, information that is at least in some measure available to both the prosecution and the defense. This is often difficult and time-consuming and can rarely be done well on the fly. While a defendant has a right to a prompt bail hearing, in some cases counsel should be prepared to postpone a bail hearing so that information important to the bail determination may be gathered.
In this regard, bail presentations frequently suffer from the Committee for Public Counsel Services (and some district attorneys’ offices) acquiescing to bail appeals being prosecuted or defended by stand-in counsel representing the defendant or the Commonwealth in the Superior Court only for the bail appeal. See, e.g., CPCS Assigned Counsel Manual Policies and Procedures, Ch. IV, Part I, Sec. II.C.5 (“Counsel should facilitate the bail appeal procedure . . . [and] whenever possible, . . . represent the client at the hearing. (Emphasis added)). Most bail arguments cannot be assembled in an hour and should not be based on a quick read of the police report or a short interview with the defendant. Continuity of counsel is crucial. Whatever policies deter bar advocates from handling their district or municipal court clients’ bail appeals should be remedied to assure effective representation during this important phase of a criminal case.
Brangan has focused attention on the issue relevant in setting bail. Hopefully its clarity will also improve bail advocacy and cause lawyers on both sides of a case to assemble reliable facts and documents bearing on whether a defendant is likely to appear at future court proceedings.
Judge Peter B. Krupp has served as an Associate Justice of the Superior Court since 2013. He is a member of the Board of Editors of the Boston Bar Journal.
The Family Resolutions Specialty Court: A Community-Based Problem-Solving Court For Families in Conflict in Hampshire CountyPosted: October 26, 2017
by Hon. Linda S. Fidnick
Voice of the Judiciary
Traditional adversarial litigation can be ineffective in meeting the needs of families who are experiencing divorce or separation. Litigation may be an ultimately productive method for resolving conflicts between strangers — someone wins, someone loses, and the parties never see one another again. How profoundly different family cases with children are! Parents usually come to court at a complicated and painful time. Anger, mistrust, fear, grief — powerful emotions grip them. Yet, despite the demise of their personal relationship, parents must (and should) continue as parents. The more effectively they can work together, the easier it is for their children. Typically parents will need to continue to address one of the many unanticipated, yet inevitable, changes to their lives or the lives of their children after the case has concluded. Unfortunately, the traditional court process gives them no tools to resolve their disputes on their own.
The Hampshire Division of the Probate and Family Court is committed to finding better ways to help families through the court process. Our initiatives include a parent education program for divorcing parents that was expanded to include “For the Children” for never-married parents; “Only One Childhood,” an educational program for mid-conflict parents; a mediation program; and a program that provides attorneys for children. These programs have inestimably benefited the many families of Hampshire County. In this article I discuss a recent program developed by the Hampshire Probate and Family Court that has shown much promise: the Family Resolutions Specialty Court.
Starting in 2014, a group of Hampshire County-based professionals, including among others, Mike Carey, the Register of Probate, Pam Eldridge, Chief Probation Officer, Noelle Stern, Judicial Case Manager, Hon. Gail Perlman, former First Justice, Kathy Townsend, mediator, and Marsha Kline Pruett, Professor at the Smith College School for Social Work, began to meet and talk about ways to provide families with an alternative to the traditional court process within the court itself. The Family Resolutions Specialty Court (“FRSC”) is the result. Loosely based on a process that was developed in Australia’s family court, the FRSC has the following goals: to reduce conflict in cases involving children, to keep court proceedings child-focused, to give parents tools via mediation and the assistance of a clinically trained child specialist to address the problems facing their own family, and finally, to increase all parties’ satisfaction with the court process. We hoped that the FRSC would be more humane and more efficient than traditional family litigation, and ultimately give parents the ability to communicate well enough to obviate the need for repeated returns to court. We also created an FRSC Advisory Board comprised of a wide variety of professionals in the community. FRSC is available in most cases involving children. It has been used in initial divorces, complaints for modification, and complaints for contempt, whether the parents have counsel or are self-represented.
FRSC serves traditional and non-traditional families of all socio-economic backgrounds with children of all ages. FRSC is voluntary. Initially, both parents must opt in to the program. Either parent may opt out at any time. If a parent opts out, the case returns to the traditional court process and a different judge is assigned. Once the parties opt in, a probation officer completes an intake and screening. This initial assessment includes meeting with the parties and counsel to explain how FRSC works. If a significant history of domestic violence exists or one or both parents do not have the capacity to participate meaningfully, the family will be screened out. Once the family is screened in, its members are assigned a support team consisting of the family consultant (a mental health professional who remains involved with the case until resolution), an attorney for the children, a probation officer, and a mediator.
The family consultant conducts a guided interview to assess the family’s strengths and challenges and discusses various parenting arrangements. What is unique about this step is that the first in-depth conversation about the parenting plan comes to the parents from a mental health and developmental perspective, rather than a legal one. The parents are then referred to mediation. During this confidential process, issues requiring resolution are identified and parents are provided with tools to resolve future conflicts informally.
Next, a court conference is held. The parents, their counsel, the children’s attorney, the family consultant, the probation officer, and I attend. We sit at a table with the parents near me and facing each other. The parents bring photographs of the children. I ask each parent what his or her hope is for the outcome for themselves, for the children, and, importantly, for the other parent. Although parents are encouraged to speak directly to me, rather than by representations of counsel, attorneys are critical to the FRSC. Lawyers help participants understand their rights and obligations, identify relevant issues, ensure complete disclosures, and counsel clients to participate in a meaningful way. We use a problem-solving approach. The rules of evidence are suspended. Information is shared freely. The process is open and transparent. If a participant raises a concern that information is being withheld or misrepresented, he or she can request that the case be transferred back to the traditional court process.
At the court conference, we identify the resolved and contested issues, the information needed to determine the outcome of the contested issues, and outline the next steps. As a community-based court, we discuss whether referrals to parent education, substance abuse treatment, family counseling, or early childhood intervention may be helpful to the family. If so, the probation officer is key in referring members of the family to appropriate community agencies. The FRSC team members work with the family between conferences. The parents may choose to meet with the mediator, the family consultant, the probation officer, or attorney for the child in any combination and as often as needed. Court conferences are scheduled at appropriate intervals until all issues are resolved. The goal is resolution by agreement. However, if necessary, I will make a decision, either on a temporary basis or as a final judgment, if the parents are unable to agree.
Because of the attention to the case by all professionals involved from the very beginning, even the most complex case concluded in seven months, half of the time standard in the traditional track. This has been one of the unexpected, but greatly appreciated by the litigants, benefits of participating in FRSC.
The following are some comments of parents from their exit surveys:
“I now have much more contact with my children than when we began. . . . We have been able to agree on many issues that we did not agree on before.”
“FRSC helped ensure my child was enrolled in a high-quality pre- [kindergarten] program which has transformed our entire family’s quality of life and gave our child a strong foundation at a time when he was most vulnerable to instability.”
“This process was very beneficial to myself as a parent and was minimally stressful. . . . It has helped me to learn to never speak poorly of her dad in front of her . . . We fight almost never now and seem to be more understanding towards each other. . . . I would STRONGLY recommend this process to anyone getting divorced who have children. I hope this becomes the standard.”
“I have learned a tremendous amount through the programs associated with FRSC both as a parent and individual. . . . [FRSC] has helped to make me the best father I can possibly be. . . . We still have a long way to go but I am hopeful that in eliminating much of the negativity that typically surrounds divorce, it will allow us to become great co-parents. Truly life changing. I hope this continues and that all divorces with children can be done in this manner.”
Thus far, FRSC has succeeded in every aspect of its purpose. Children have a voice from the very beginning, which focuses their parents on the primacy of continuing to raise healthy children despite the marital or relationship dissolution. For those separating and divorcing parents who choose the process, they were able to come to closure in half the time (or less) than allotted for cases under our time standards. The families who have benefited from FRSC have been from all walks of life in our county: people from all manner of socio-economic, religious, health status, gender-identified, and educational backgrounds have benefited from it. Our hope is that the FRSC model will be the default process for all families experiencing divorce and separation throughout the Commonwealth.
Judge Fidnick is the First Justice of the Hampshire Probate and Family Court.
by Hon. Linda E. Giles
Voice of the Judiciary
Age-based criteria are entrenched in Massachusetts law. I have found over two dozen statutes providing for sixty-or-over age classifications, on matters ranging, inter alia, from the Department of Elder Affairs’ definition of “elderly person” as an individual sixty years of age or over, G. L. c. 19A, § 14; to the Department of Labor Standards’ provision of an extra day of family and medical leave to care for an “elderly relative,” i.e., one at least sixty years of age, G. L. c. 149, § 52D; to the right to a speedy civil trial for sixty-five-year-olds,
G. L. c. 231, § 59F; to enhanced penalties for various crimes against the person of victims sixty or sixty-five years of age and older, G. L. c. 265, §§ 13K, 15A, 15B, 18, and 19 and G. L. c. 266, §§ 25 and 30; to the right of tenants aged sixty or more to a six-month stay in summary process proceedings, G. L. c. 239, § 9; and to the entitlement of “aged” persons sixty-five years or older to receive state supplementary payments from the Department of Transitional Assistance, G. L. c. 118A, § 1.
Perhaps I am not the most impartial arbiter on the subject of age-based legislation. As a sexagenarian fast approaching mandatory retirement age and acutely aware that Vermont judges do not need to retire until ninety (and federal judges not at all), I confess to being a reluctant “elder.” Moreover, some may argue that any attack on ageism in the law may be a “Trojan Horse” that could open the floodgates to subverting age-based benefits and entitlements. Nevertheless, I question the arbitrariness and effectiveness of many older-age-specific laws and issue a clarion call for the legislature to re-examine them. (Youth age classifications, e.g., the Juvenile Court cut-off age of eighteen when compared to the drinking age of twenty-one, G. L. c. 119, § 58; G. L. c. 138, § 34A, also are worthy of scrutiny but beyond the scope of this article.)
The battle for this not yet over-the-hill individual seems uphill at first. Some forms of age discrimination are undeniably necessary and reasonable, e.g., compelling children but not adults to be educated, or allowing adults but not children to vote. Age-based laws also are well-settled and plentiful. The federal Age Discrimination in Employment Act of 1967 (ADEA), which prevents age discrimination against persons forty years of age or older, is celebrating its fiftieth anniversary this year. Over forty years ago, the constitutionality of age-based classifications was enshrined in the United States Supreme Court’s holding in a Massachusetts case, Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976); in Murgia, the Court concluded that uniformed state police troopers facing mandatory retirement at fifty did not constitute a suspect class for purposes of equal protection analysis. Over the past several decades, there has been a proliferation of legislation aimed at protecting “elders,” commonly defined as sixty-five or older, from abuse, neglect, and discrimination.
To be sure, protecting vulnerable senior citizens from abusive or unfair treatment is a laudable government interest. Furthermore, “[t]he problems of government are practical ones and may justify, if they do not require, rough accommodations, illogical, it may be, and unscientific.” McGinnis v. Royster, 410 U.S. 263, 270 (1973), quoting Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70 (1913). Even so, chronological age has served as an arbitrary, overbroad, and expedient proxy for more relevant but difficult-to-quantify characteristics, such as frailty, vulnerability, or need. Older adults are subjected to disparate treatment on the basis of stereotyped assumptions about their abilities and disabilities; and protections for “elders” are premised on the inaccurate pigeon hole that they are impaired cognitively or are physically- or decisionally-challenged. Policy-makers lump older individuals into age-based, monolithic categories (e.g., middle-old, old, the oldest) without account for very real differences among the age cohorts. Cf. Kenneth F. Ferraro, “The Evolution of Gerontology as a Scientific Field of Inquiry,” Gerontology: Perspectives and Issues 13, 13-33 (3rd ed. 2007). As the average life expectancy has increased to 78.8 years, Centers for Disease Control and Prevention FastStats – Deaths and Mortality, and one in five over age sixty-five in Massachusetts is still working, “1 in 5 over 65 still on the job,” Boston Globe, June 12, 2017, elderly status, widely assumed to start at age sixty-five, has become an increasingly poor predictor of physical and mental limitations. Centers for Disease Control and Prevention, Quickstats: Estimated Percentage of Adults with Daily Activity Limitations by Age Group and Type of Limitation – National Health Survey, United States. Accordingly, fixed age thresholds for classifying people as old, which do not take into account improvements in health and longevity, seem increasingly anachronistic.
Furthermore, some protections for “elderly” persons, albeit well-intentioned, may not be so benign. For example, a mandatory reporting system in Massachusetts requires individuals in nineteen specified occupations, including physicians and nurses, to report suspected abuse of “elderly persons” sixty years of age or over to the Department of Elder Affairs. G. L. c. 19A, §§ 14, 15. Mandated disclosures under the law may implicate the release of the alleged victim’s privileged medical information, which, if done without that “elder’s” consent, would undermine his/her right to informational privacy. At least one legal scholar has argued that age-specific legislation may violate the civil rights of older adults and has called for expanding the scrutiny of age-based classifications from rational basis to intermediate. See Nina A. Kohn, “Rethinking the Constitutionality of Age Discrimination: A Challenge to a Decades-Old Consensus,” 44 U.C.Davis L.Rev. 213 (2010); Nina A. Kohn, “Outliving Civil Rights,” 86 Wash.U.L.Rev. 1053, 1058-59 (2009). In yet another context, health care systems sometimes rely on age-based classifications to deny older adults the right to obtain certain medical procedures regardless of need. Although doctors routinely tell patients over sixty-five that they are not good candidates for organ transplants, Johns Hopkins’ investigators have found that older adults can enjoy excellent transplant outcomes in this day and age. See Dorry L. Segev, M.D., Ph.D., et al., “Candidacy for Kidney Transplantation of Older Adults,” Journal of the American Geriatrics Society, Vol. 60, Issue 1 (January 12, 2012).
Maybe it is time to rethink the cavalier use of imperfect age-based criteria in our laws, starting with our very definition of “old age.” After all, population experts have concluded that sixty really is the new fifty. See, e.g., W. Sanderson, S. Scherbov, “Faster Increases in Human Life Expectancy Could Lead to Slower Population Aging,” PLOS ONE (April 2015). A number of research demographers have suggested that policymakers focus less on chronological age and embrace measures based on prospective age, i.e., the expected remaining years of life for a given age range. See W. Sanderson, S. Scherbov, “Rethinking Age and Aging,” Population Bulletin vol. 63, no. 4, Population Research Bureau (December 2008). Prospective age is a population-based concept that takes into account improvements in health and life expectancy which the static concept of chronological age does not. Id. Perhaps Oliver Wendell Holmes, Jr., one of Massachusetts’ greatest native sons, had the notion of prospective age in mind when, at the age of sixty-three, he quipped, “[o]ld age is fifteen years older than I am.” In the humble opinion of this purported “old ager,” truer words were never spoken.
 The opinions I express are my own and do not reflect the view of the Massachusetts Superior Court. Though I recommend legislative reform, I of course will continue to follow the law as it exists.
Judge Linda Giles has served as an Associate Justice of the Superior Court since 1998. She is an adjunct professor of law at Suffolk University Law School and a member of the Board of Editors of the Boston Bar Journal. Judge Giles is a graduate of McGill University and New England School of Law.