Some Thoughts About the Appeals Court

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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.


Reflections on the Supreme Judicial Court Committee on Grand Jury Proceedings

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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.

Personal Reflections

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.


Deconstructing the School-to-Prison Pipeline

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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.


Extending Opportunities to Junior Lawyers in the Courtroom

fraywitzerby 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.


A Call for More Focused Advocacy: Setting Bail After Brangan

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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 County

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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.

 


60 is the New 50: A Look at Age-Based Legislation Through the Eyes of a Reluctant ‘Elder’

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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.[1]  (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.

[1] 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.