Chief Justice Fabricant Retirement Reflections

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Interview with Superior Court Chief Justice Judith Fabricant

by Hon. Debra Squires-Lee and Chief Justice Judith Fabricant

Voice of the Judiciary

As an Associate Justice of the Superior Court, I had the opportunity to interview Superior Court Chief Justice Judith Fabricant after she announced her retirement from the bench. What follows is an excerpt of our discussion, condensed and edited for clarity. -Debra A. Squires-Lee

Q: Chief, you just announced your retirement. How are you feeling?

A: I feel mixed. In a way, I feel great because I really am looking forward to having more free time and less stress. I will miss all of the people and a lot of the activity and the opportunity to feel useful. I’ll need to look for other ways to feel useful, but not just yet. I’m going to take some free time.

Q: Can you tell us about your life before you became a judge. Anything about your upbringing, education, or career that led you to the judiciary?

A: Well, I grew up in Newton, I went to public schools in Newton. I went to school at a time when there was much emphasis on social justice, as there is now, but there certainly was then. I wanted a career of making a difference. I was also very conscious that women get steered into certain things. I had the idea that I needed to have a professional credential, otherwise, I would always be somebody’s assistant. I think that has changed, but it hasn’t changed quite as much as we might wish.

I went to college and law school at Yale, with a couple of detours here and there. I spent a year teaching English in Thailand, and a year in Washington working for an organization that worked on hunger. After law school I did a clerkship with First Circuit Judge Levin Campbell, who was a great role model. Working for him was probably the first time that the idea of becoming a judge really ever entered my mind, because I had an opportunity to see a really excellent judge in practice, and to develop an image of what an excellent judge does and how he thinks.

After clerkship, I went to a law firm, which was the path of least resistance at the time, with a lot of loans to pay. I did that for three years and had my first child while I was there. Then my husband said he wanted to go and do a fellowship in North Carolina. I said yes to North Carolina and applied for a lot of different things and got a job as an assistant DA in Wake County.

That was a very different experience. I was in the courtroom on my feet all day, every day, dealing with unpredictable things. It was an enormous learning experience. It was an experience of becoming familiar with a courtroom in a way I don’t think I ever would have at a law firm.

We were there for two years.  When we came back, I was pregnant with my second child. I stayed home for a few months and then got a job at the Essex DA’s Office in the Appeals Division, doing criminal appeals on behalf of the Commonwealth. Doing appeals is a very good mommy job, and it has a level of intellectual depth that I really appreciated, and I liked it a lot.

I was paying more for daycare than I was earning, which is one of the unfortunate anomalies of the public sector in Massachusetts. I think that has been mitigated somewhat since then, but it hasn’t been completely overcome. I also felt like I needed to diversify a little bit. At that point, I moved to the Attorney General’s Government Bureau, which represents agencies and officials of state government in civil litigation. I was there for eight and a half years, the last four of those years as Chief, and was appointed to the bench from there.

Q: I have to follow up on something you said which is that Judge Campbell was an excellent image of what an excellent judge does and how he thinks. What is your image of what an excellent judge does and how she thinks?

A: Well, I’ll start off with Judge Campbell and extrapolate. I came out of law school never having met a judge except in interviews for clerkships and having no sense of how they really operate. I met a person who came at it with no preconceived notions, with no agenda, with integrity and strong values, but no agenda to do anything other than evaluate the facts fairly and accurately and apply the law fairly and accurately.

I came to see that, yes, that is exactly what a judge is supposed to do. I think it requires deep thinking about who the litigants are, what it means to them, what they have at stake and how it affects them. It requires deep thinking about the law and making sense of the law in a way that is fair, fully faithful to the law, and reflective of who the parties are and how it affects the parties.

I think of something [Chief Justice] Ralph Gants used to say to us. Which was that, if the law seems to be telling you to do something absurd, don’t do it. I think Judge Campbell followed that without ever quite saying it and I admired that.

Q: I’m so glad I asked that question. Why did you decide to apply to become a judge?

A: I had spent enough time in courtrooms, enough time before enough different judges that I had come around to the idea that this was something I could do and would really like to do. I got some encouragement from a source who made me think there might be an opportunity. When you get that sort of encouragement, you take it. At least that was my thinking.

Q: Did being a judge live up to your hopes and expectations? If so, how, and if not, how didn’t it?

A: Yes, it did. It’s an opportunity to be neutral. That is, you don’t have an obligation to serve a client [or] to try to make a client happy. Your job is to do the right thing. That really is the job of a judge. There are pressures from all directions all the time, but your job is to do the right thing. Your job is to apply the law to the facts in front of you. If you keep that clearly in mind, you deal with the pressures appropriately and you avoid the pitfalls. I always felt that I could do that, and that doing it was enormously satisfying. I’ve had wonderful colleagues, and the colleagues work as a team and help each other as a team and support each other as a team. That’s always been enormously satisfying.

Q: What was the most challenging part of your job?

A: We all know that that there are challenges in the state court system of resources, of inadequate technology. In some buildings, the buildings themselves are very difficult to work in. We all know that. We all just deal with it, because, fundamentally, it’s much less important than the substance of the work and the people.

The real challenges are not the resources. The real challenges are the same thing as the rewards, in the sense that it’s sometimes very difficult to understand the true situation in each case. It’s sometimes very difficult to understand how the law applies to a set of facts that are unique or don’t quite fit the mold or are hard to really, confidently perceive accurately.

Q: Is there a case that you presided over that you still think about that you’ll never forget for any reason?

A: Well, I guess one thing I would say about that is you’ll recall that [U.S. District Court Judge] Bill Young spoke at our conference and he quoted another judge as saying that the most important case is the next one. He’s absolutely right, and that’s a very important thing for judges to hear.

If I think back to the ones that still keep me up at night, I think about one that I tried pretty early on involving a serious crime and a young defendant who was an immigrant, had been brought as a small child with his family. The parents had become citizens and, somehow, they just didn’t get around to making him a citizen. He was tried and found guilty. I gave him a serious sentence and then he was deported, and everybody knew he would be. This was about 20 years ago in a very different political scene from now. It made me very sad.  He was deported to a place where he had nobody, knew nobody. It feels to me that if someone grows up in our society and grows up badly, that’s on us and it’s hard to see why it isn’t our responsibility as a society to deal with it.

That’s one that has haunted me over time, but that’s a situation where there is nothing a judge can properly do about it. The judge’s role is to try the case fairly, apply the law fairly, give everybody an opportunity to bring out the facts fairly, sentence in accord with the law, and collateral consequences that are under somebody else’s control are under somebody else’s control.

Q: You were named Chief of the Superior Court in 2014. You’ve now served six and a half years. What was the most challenging part of serving as chief, and what did you find most rewarding?

A: Those things go together. The rewards are my colleagues, I love them, and I love that our colleagues support each other, help guide each other, especially the newer ones, and that as a group, we promote excellence. That’s the great reward, and the great challenge is to try to promote that spirit, the spirit of excellence, the spirit of mutual support, consistency.

One of the things that comes up in managing any group of people is that individuals have crises. Sometimes it takes the form of the media going after somebody, often unfairly. Sometimes it’s simply that the media misunderstands what the job is, and what the judge is supposed to do.

Q: How did you perceive your role as chief in those circumstances?

A: First, making sure the judge knows about it. Sometimes I will become aware that a person a judge released from custody or gave a sentence that somebody might think was too lenient, that this person has gone out and committed some terrible crime. I will learn of that before the judge learns of it and I want to tell the judge directly so that it doesn’t get to the judge first in the form of a media question.

Then I have a lot of conversation with the Public Information Office about what we can and cannot properly say about the matter, because we’re all bound by the Code of Judicial Conduct, and in that sort of situation, many times the case is still pending in some form, which means we can’t comment about it publicly. The judge can’t, I can’t, the Public Information Office can’t, but what we can do is put out information that provides an accurate explanation of the law and the type of proceeding involved.

Q: I want to transition a little bit, Chief, thinking about the 25 years you’ve been on the bench, looking back, how has the Superior Court changed?

A: I would say the essential spirit of the court in the sense of collegiality, support for each other, commitment to the rule of law, that essential spirit has not changed. My guess is it has never changed, my hope is that it never will change. There is a lot that has changed in terms of how we function every day.

The most obvious is technology. When I was new, most of the clerks had no computers, none at all. They were keeping handwritten minutes, handwritten docket sheets, handwritten lists of what’s on for hearing on any given day. There was no way to look anything up. Over the next several years, all counties got computers and judges got computers that they had in their lobbies so that you could use word processing, but, depending on where you were, you wouldn’t have access to anything other than word processing.

When I started, the norm for judicial assignments was by the month. Some judges would stay where they were all the time, the ones who were most senior and had a place they liked to stay, and so they would stay where they were all the time, but most judges, and certainly, the newer ones, were moving every month. It had advantages, as a new judge, you got to see lots of different places and lots of different ways of doing things, but obviously it was very inefficient.

We had civil time standards that started in 1988. We were far ahead of most of the world in civil time standards. We had no criminal time standards until 2004. Criminal time standards generated a lot of opposition and a lot of controversy, but ultimately, I think, everybody came to understand that you need them. Even if you can’t meet them all the time, or even most of the time, you need a standard, so you have a sense of what the norm is, and when you’re meeting it and when you’re not meeting it.

And then we also started Rule 9A for civil cases in 1988.  Rule 9A meant an enormous change from what had been the practice before that, which was that you file a motion subject to the opposition procedure. You serve a motion subject to the opposition procedure, and if there’s no opposition within a certain period of time, you file it and then you’d go to the motion session for a hearing.

The judge in the motion session was doing all the motions, so the judge, of course, would never read anything in advance, because how could the judge possibly read everything in advance if that judge has to do all the motions for all the sessions? In my first few years as a Judge there was a constant cry in the civil bar, “Bring back the motion session,” with some good arguments to support it.

That is, a lot of people would learn the ropes as young lawyers by going to the motion session and sitting there and waiting and watching the leaders and seeing what they did and talking to each other, so not having a motion session, you lose that. On the other hand, in non-COVID times, every civil session in Superior Court does a motion session every afternoon. The judge has a chance to read the papers because the cases are divided up in sessions. The papers are meaningful in a way that they couldn’t possibly be in a single motion session.

One [additional] thing that has changed over that time is, when I came in, I got lots of good informal mentoring. I had one person who was assigned as my mentor for a brief period, and I sat with her a few days. But we didn’t have the formal, really structured orientation and mentoring program that we have now for new judges.  The educational program that we have now for new judges is a dramatic improvement.

Q: What are you most proud of as Chief?

A: I think I have promoted collaboration, not just among judges but among all of the people we work with. Collaboration with clerks, probation officers, other Trial Court departments, the Trial Court infrastructure, court officers, facilities, the bar – a sense of, we should talk to each other, we should learn from each other, we should work together. Not on everything – there are times when it’s not appropriate to do that, but most of the time it is appropriate to do that. I feel proud of having promoted that collaborative culture.

Q: You have been successful because we are a team, we are all working together. That comes from the top, for sure.

A: That’s what I think we should be.

Q: What advice would you give to the next Chief?

A: I guess, the one piece of advice I would give is, in managing any people whether it’s judges or anyone else, you want to bring out the best in them. Whoever a person is, that person has strengths, and you want to find out what those strengths are and find ways to allow the person to shine.

If you go about trying to change people, it’s not going to work. You’re not going to fundamentally change people. If you go about looking for their strengths and finding where those strengths can shine, I think, you’re more likely to be successful.

Q: That’s great advice. What unfinished work do you think you’re leaving behind as Chief?

A: Well, we have to get the rest of the way through the pandemic. We know how to get there. There will be glitches that arise between here and there that the next Chief has to deal with. We know where we’re going, we know how we’re going to get there, we have a path laid out. Once the pandemic is over, the Court needs to evaluate what we’ve learned from it. We’ve changed all kinds of things we do for the pandemic. Some of those are good changes that we need to preserve. Some of those changes are not and should not be preserved. As you know, we already have a committee working on that, and that process will need to be brought to fruition.

There is some planning for new courthouses and renovations that needs to happen that the new Chief will be involved in. I’ve had some involvement in it but somebody else will take over.  So that’s what I feel I’ve left unfinished, but you can’t finish everything.

Q: What message would you give to lawyers who are toiling in all different fields, criminal bar, civil bar, about what they can do to help ensure our mission, justice with dignity and speed, is met?

A: Well, the first answer to that is always, support the trial court’s budget, and the organized bar knows that. In particular, right now, support the judiciary IT bond bill. That is something that is pending right now and is really important. I think the bar can easily see that we are not where we need to be in technology. We’ve made enormous strides but we’re not where we need to be and it’s going to take the IT bond bill to get us there.

More generally, I think, the answer is collaboration, that is: work with us, understand the challenges we need to deal with, and assist us. One of the ways that lawyers assist us is by treating the court and everybody in the process with dignity, conducting themselves with dignity, that means, civility to each other. Lawyers working together to resolve problems sensibly, talking to each other civilly. Most of the time, you serve your client most effectively, if you have good, strong, positive relationships with counsel for the other parties, and you maintain those good, strong, positive relationships by talking to each other, being civil to each other, treating everyone with dignity, and coming into court prepared, both in the sense that you’re prepared to present your case but also, you’re prepared to resolve your case, in a realistic, sensible way.

Q: Do you have any closing words?

A: Let’s talk for a moment about justice with dignity and speed. The phrase “Justice with Dignity and Speed” is an encapsulation of the mission statement. It’s easier for people to remember this short version, rather than the entire mission statement. It’s a good slogan in that it captures the essence of what we’re aspiring to do, but it tends to be misunderstood. The word most often misunderstood is “speed.”

A word that would capture what we mean more fully is “timeliness.” We have all learned in recent years that speed is dangerous, because when you’re trying to make quick decisions, that’s when you fall into stereotypes. If you’re being careful to avoid stereotypes, as you should be, and to ask yourself about the stereotypes that are in your head, speed is not going to facilitate that. You need to take time to think about what stereotypes you might be falling prey to.

If you think in terms of “timeliness,” what that means is, everything should take however much time it needs to take, to do justice and to treat people with dignity, no more and no less. I think of timeliness as the aspiration, and it’s part of justice. If people have to wait unreasonable periods of time for an answer, they’re not getting justice and they’re not being treated with dignity.

Q: Thank you very much, Chief. This was fabulous.

Hon. Debra Squires-Lee was appointed to the Superior Court in 2018.  Prior to her appointment, Judge Squires-Lee was a partner at the Boston law firm of Sherin and Lodgen where she specialized in business litigation and legal malpractice defense.

 

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Chief Justice Fabricant

by Hon. Janet L. Sanders

Viewpoint

There was a time when Judy Fabricant and I seemed to be living parallel lives – with her several steps ahead of me, of course.

I first met Judy at the annual dinner of Hill & Barlow. Although it would dissolve some twenty years later, the firm was one of the most respected in Boston in the 1980s. Judy had already been at Hill & Barlow for about a year after a clerkship with Judge Levin Campbell on the First Circuit. Still in the middle of my tenure as a clerk at the federal district court, I had just accepted an offer to join the firm as an associate.

At the dinner, I noticed that Judy was pregnant: she was in fact due to have her baby shortly. I planned to tell the partners that evening that I too was pregnant and would not be starting on the date originally planned. I thought they would be delighted. (They were not.)

Judy returned to the firm after the birth of her son but only briefly. By September 1984, when I began work at Hill & Barlow (having had a son myself), Judy had departed for North Carolina where her husband was doing a medical fellowship. I didn’t expect to see Judy again. 

In North Carolina, Judy worked as an assistant district attorney in the Wade County District Attorney’s Office in Raleigh, trying cases in both district court and superior court. Over the next two years, she would have 32 jury trials under her belt. My professional life took a different turn: after several years at Hill & Barlow, I joined a small criminal defense firm. I did not try anywhere near as many cases as she did, but like her, I loved being in court.

Our lives converged again when Judy moved back to Massachusetts into a house just a block away from me in Brookline. By that time, she was a mother of two children, and I was the mother of three. Our children attended the same elementary school. We had friends in common. 

Back in Boston, Judy continued her work in the public sector, first in the appellate division of the Essex County District Attorney’s office, then in the Massachusetts Attorney General’s Office. In 1992, she rose to the position of chief of the Government Bureau. In the meantime, I was squaring off against the government in state and federal court.

Within a year of each other, however, our professional lives again ran in parallel. Then governor William Weld (who, coincidentally, had been at Hill & Barlow before either Judy or I joined the firm) appointed me to state district court in 1995 and Judy to the Superior Court in 1996  – a position that that I could only imagine occupying.  

By the time my own dream of becoming a Superior Court judge was realized, Judy was already well respected among her colleagues. She worked tirelessly on several Superior Court committees, including chairing the all-important Education Committee. Her opinions were scholarly, and her temperament a model for those (like me) prone to impatience. Still relatively new to the court, Judy already had the wisdom and good judgment of the seasoned judge. 

In 2005, then Chief Justice Barbara Rouse appointed Judy to be the Regional Administrative Judge for Norfolk Superior Court. A few years later, I would follow in her footsteps there and become the beneficiary of certain policies that she had implemented – among them that the First Session start at 9:00. (Judy’s punctuality is legendary.)

Norfolk Superior Court was also where I cut my teeth as a new judge – and first experienced the pain of being reversed. It was in a case where Judy had denied the plaintiff injunctive relief on the grounds that he had no reasonable likelihood of success on the merits. When the case later came to me on a motion for judgment on the pleadings, I saw the legal issue differently and ruled for the plaintiff, leading to a reversal by the Supreme Judicial Court. Judy got it right the first time. I realized that I had a lot to learn.   

Back in Boston in 2007, Judy joined Ralph Gants and Alan van Gestel  in the Business Litigation Session. There, she gained the admiration of the most senior people in the bar. She was also a trusted advisor of then Chief Justice Barbara Rouse. It therefore came as no surprise when Judy was appointed to succeed Judge Rouse upon her retirement. In the meantime, I had myself become part of the BLS team of judges. With Judy’s appointment, our professional paths would no longer run in parallel, however.   

In agreeing to being Chief Justice of the Superior Court, Judy took on an almost impossible task. Judges are more accustomed to directing others than in accepting direction. We are an independent- minded group and  special skills were needed to manage us. I knew that I did not have those skills but that Judy did.

First, after two decades of being on the bench, Judy had a thorough understanding of the job that we do and just how hard it can be to do that job well. She had herself experienced the stress that comes from making difficult decisions and could therefore anticipate when her support was needed. If we made a mistake, she was there to listen – and to offer constructive suggestions as to how we might avoid making the same mistake again. We accepted those suggestions precisely because we knew that she knew what she was talking about. She had been there.

Second, Judy is the model of discretion. Judges are human beings with human problems that can at times interfere with our doing our jobs. In order to be aware of those problems, a chief must be trusted to keep certain information in confidence. Judy had our trust.  She did not listen to gossip nor did she spread it, but she always knew what was going on.        

Third, Judy’s temperament was perfectly suited to the position. She was able to sit through long committee meetings and listen patiently to the views of others. Although she was not shy to offer her opinions, they were delivered in an even tone, her words chosen with care. She can be a powerful presence in a room without being confrontational.   

Finally, Judy has tremendous respect for the institution that she serves, and more generally, for the rule of law. She  demonstrated that respect both in her work ethic and the integrity with which she performed her duties as Chief Justice. We follow her lead because she lives by what she says. 

Judge Fabricant has been an inspiration to all of us, but most particularly to me as her colleague, her neighbor and her good friend. She may be retiring from the bench, but I am confident she will continue to contribute in some important way. And I know that I will be guided by her example.  

Janet L. Sanders is a Superior Court Justice. Before her appointment in 2001, she  worked as a criminal defense lawyer and then served on the district court beginning in 1995.  

Reflection on Chief Justice Fabricant

LockeResizeby Hon. Jeffrey A. Locke

Viewpoint

In 2009 the Massachusetts Superior Court celebrated its sesquicentennial anniversary with a series of court-sponsored presentations and events recognizing achievements over its 150- year history. As part of that effort, then-Chief Justice Barbara Rouse conceived of a collection of essays by past and present justices of the court, a large undertaking that required substantial managerial and editorial expertise. Not surprisingly, she solicited Judge (now Chief Justice) Judith Fabricant to oversee the project which resulted in Reflections of the Justices, a collection of 55 essays published by the Supreme Judicial Court Historical Society. In her Preface, Judge Fabricant wrote of three consistent themes underlying the individual vignettes: that judges recognize “the honor and the obligation entrusted to us, and we accept it with humility, dedication, and joy;” the collegial and supportive nature of the Superior Court bench; and the need for a coordinated and cooperative administrative structure to manage a burgeoning caseload and respond to the challenges of the times.

These themes characterize Chief Justice Fabricant’s tenure on the Superior Court. She was appointed to the court at age 41by Governor William F. Weld in 1996. Though relatively young, she was well qualified, having served as chief of the Government Bureau in the Attorney General’s Office for four years, worked as an assistant district attorney and as an associate at the law firm, Hill & Barlow, as a legal writing instructor at Boston University School of Law, and as a law clerk for 1st Circuit Court of Appeals Judge Levin H. Campbell. She was a graduate of Yale College and Yale Law School.

Notwithstanding her outstanding professional and educational pedigree, Judge Fabricant has never considered herself smarter or better than the attorneys or litigants who came before her in civil and criminal sessions. Although firmly in control of her courtroom, Judge Fabricant exhibited an air of humility, patience, and respect for the parties and their representatives, and gave each case her full attention and best judgment. Her written decisions were a model of intelligence and clarity, focused on the established facts and prevailing law and written with precision and without flourish. Her annual assignments included civil and criminal sittings, including in the busiest civil sessions in Suffolk County. She was tapped to serve as a judge in the Business Litigation Session for several years. As a trial judge, she strove to ensure that every person seeking justice through the courts received a full and fair hearing and her sincere and honest judgment.

Aside from her responsibilities as a trial judge, Judge Fabricant demonstrated her commitment to the collegial nature of the court through service on countless court committees and judicial initiatives. She was a member of the Commission on Judicial Conduct, served as a regional administrative justice in Norfolk County, was on the Superior Court Rules and Civil committees for years, was chair of the court’s Education Committee responsible for semi-annual educational conferences (which under her watch started promptly at 9:00 a.m. and ended precisely at 4:00 p.m.), and served as the Superior Court designee to the Trial Court’s first Strategic Plan. In these various roles, Judge Fabricant contributed to the improvement of judicial operations and enhanced judicial performance.

In her six and a half years as Chief Justice, Judge Fabricant oversaw many other initiatives to improve the operations of the court and the collegiality of its justices, to include the integration of the MassCourts computer system, the formulation of written protocols for regional administrative justices, court magistrates, probation violation guidelines, best practices in criminal sentencing and, most recently, a year-long project to develop a set of plain-language jury instructions for use in civil and criminal cases. These written materials, the product of Judge Fabricant’s red-line editing for precision and clarity, will surely improve the administration of justice for years to come. Additionally, Chief Justice Fabricant presided over the induction of 39 new judges, welcoming them to the Superior Court, the “great and historic trial court of the Commonwealth” and promising them the support and fellowship of their colleagues.

Chief Justice Fabricant handled the myriad other responsibilities as chief with grace, fairness, and understanding. She painstakingly created the annual list of circuit assignments based not only on the needs of the court but with sensitivity to the individual and personal wishes and needs of her colleagues. She maintained an open-door policy as chief, available in person, by phone, or by text. She always made time to hear problems, complaints, or concerns and treated each as if it was as important to her (often not) as it was to the caller. Whenever possible, the chief would find a solution, or propose a path to a solution, for the problem presented. She did so with grace and compassion and earned the undying respect of her colleagues.

The coronavirus pandemic struck the United States in the winter of 2020, impacting the courts as it did all of American society. In March 2020, Chief Justice Fabricant returned from an overseas vacation to discover that the courts were about to suspend in-court proceedings and essentially shut down day-to-day operations. As noted in her Preface to the 150th Reflections publication, the times called for coordination and cooperation to ensure access to justice in a pandemic setting, and Chief Justice Fabricant spearheaded that effort. In addition to developing systems for virtual court hearings, Chief Justice Fabricant was asked by SJC Chief Justice Ralph Gants to serve as chair of the Jury Management Advisory Committee, tasked with surveying and assessing every courthouse in the Commonwealth to determine their suitability for in-court jury trials, and developing protocols for conducting jury trials in a manner consistent with public health and public safety. The mission was breathtaking in scope but under the leadership of Chief Justice Fabricant, a series of reports issued and jury trials were able to resume.

Chief Justice Fabricant is retiring at the top of her game and her departure will be mourned by many in the Superior Court family. However, she leaves behind a legacy of honorable and steadfast service, and a court enriched by her efforts and devotion.

Hon. Jeffrey A. Locke has been a Superior Court judge since 2001. He was a state and federal prosecutor for 18 years and was Commissioner of the Department of Social Services.

 

 


Continuing Confusion Concerning Massachusetts Superior Court Rules 9A and 9C

thumb_v1Squires-LeeResizedby Hon. Robert B. Gordon and Hon. Debra A. Squires-Lee

Voice of the Judiciary

Commentators have written a good deal about the changes to Massachusetts Superior Court Rules 9A and 9C that went into effect on November 1, 2018. Rule 9A governs the process by which nearly all civil motions are filed in the Superior Court, and Rule 9C requires parties to confer prior to filing most of these motions. Together, Rules 9A and 9C promote judicial efficiency and streamline civil litigation.  However, the two years since their amendment have witnessed continuing non-compliance with Rules 9A and 9C; and we, who have been Associate Justices on the Superior Court since 2013 and 2018 respectively, have noted some persistent areas of confusion within the bar. Below are some of the most frequent issues or questions we encounter, together with our answers.

  1. I called opposing counsel and left a message (or I sent an email to opposing counsel) and have not heard back. Does that satisfy Rule 9C’s conferral obligation? The Rule expressly requires that conferences shall be by “telephone or in person.” The reason is clear. Communicating by telephone or in person increases the likelihood that parties will narrow the “areas of disagreement to the fullest extent,” as required by the Rule. Further, the Rule requires “good faith” efforts. A single or even a series of emails does not suffice. Three or more unreturned calls should, however, and likely will prompt intervention by the Court in a Rule 16 Conference.
  2. I served my motion with a cover letter saying if you want to confer, let me know. Does that satisfy the conferral obligation? In addition to the requirement that conferral be by telephone or in person, Rule 9C requires that the parties confer “in advance of serving any motion under Mass. R. Civ. P. 8(a), 12 (except Rule 12(c) motions in administrative appeals), 26, 37, 41(b)(2) (first sentence) or 56.” (Emphasis added.) Practitioners should note that, following public comment, the Superior Court approved an amendment to the scope of Rule 9C such that Rule 9C would apply to all motions governed by Rule 9A.  The court is awaiting approval from the Supreme Judicial Court on this amendment.

Requiring a conference prior to service of a motion saves resources, and improves the chance of either narrowing the issues presented in the motion or eliminating the need for the motion altogether. By contrast, once a lawyer has drafted and served a motion (and charged the client), that lawyer is more apt to dig in his or her heels and be less likely to make compromises. Further, if the parties confer only after service of a motion, but do not fully bridge the divide between their positions, they often simply file the originally served and opposed motion papers with the court without disclosing that they had reached compromises on some aspects of the motion. With the average caseload in each civil session in Suffolk County Superior Court on the order of 700 cases, judicial economy and efficiency suffer if judges are called upon to review and decide motions unnecessarily or rule on issues that are no longer in actual dispute. 

Consequences: Failure to comply with Rule 9C’s conferral obligation should result in a denial of the motion without prejudice or, as some judges prefer, an obligatory conferral session in the hallway outside of the courtroom.  Either result costs clients more than compliance with the Rule would have.

  1. I served a cross-motion (or a motion to strike) together with my opposition. When I get the opposition to my cross motion, may I serve a reply brief and require the moving party to include it in the 9A package? No. Although Rule 9A was amended to permit the moving party to serve simultaneously an opposition to the cross-motion or motion to strike and a reply to the non-moving party’s opposition to the original motion, “[n]o other reply or surreply submission shall be filed without leave of court, which will be granted only in exceptional circumstances.” Counsel should recall that, prior to the 2018 amendments to Rule 9A, reply briefs were not permitted as a matter of right and permission-seeking letters to the judge were required. Further, a motion seeking leave to file an additional reply or a surreply memorandum is filed separately from the 9A package.

One important practice tip to keep in mind: do not submit the draft reply (to the cross-motion or motion to strike) or surreply with the motion seeking leave. Practitioners may think that securing leave is more likely if the reply submission has already been prepared and is staring the judge in the face. However, this sort of presumptuous practice and the cluttering of the case file it produces may put off many judges who may deny the request on that basis.  Practitioners who do this risk diminishing the likelihood that their request will be granted, and finding themselves in the unhappy position of not being able to bill clients for work that their non-compliance with the Rule rendered nugatory.

  1. The defendant is representing herself. Must I comply with Rule 9A and Rule 9C? Rule 9A and Rule 9C apply to pro se parties. Among other exceptions, Rule 9A does not apply to ex parte or emergency motions, or motions involving a self-represented incarcerated party. But both rules do apply to self-represented litigants who are not incarcerated, and counsel have a duty to confer with pro se parties under Rule 9C just as they do with opposing counsel.
  2. I served my Motion to Amend the Complaint to add new claims and new parties on the original defendants. Have I complied with Rule 9A? This is a common error. Rule 9A requires service on specifically named non-parties if (a) the Motion seeks to add the non-party as a party to the case; (b) the Motion seeks an order or other relief against the non-party; [or] (c) the issues affect the personal information or other interests of the non-party.” This requirement means that any amendment seeking to add a party must be served on the proposed new party; any motion that may affect a specific non-party, for example a motion for a preliminary injunction seeking an order that may affect the non-party, must be served on that non-party; and a motion seeking to attach property or assets in the possession of a non-party, whether pre- or post-judgment, must be served on the non-party.
  3. I sent documents and affidavits to the plaintiff with my opposition to the motion for summary judgment, but the plaintiff did not include them in the joint appendix. Should I file the material separately? The moving party is obligated to submit a single joint appendix with the Rule 9A summary judgment package. The moving party must append all material provided by the non-moving party, whether or not the moving party thinks the material is relevant, to the moving party’s material and include such material in the joint appendix. Please read Rule 9A(b)(5)(v) carefully, and comply with it. Whether you are seeking or opposing summary judgment, you want the court to read the material you submitted and not spend time organizing, tabbing, indexing or hunting for documents. A single, indexed, tabbed, and complete joint appendix greatly improves the court’s ability to locate and review the evidence. If the moving party does not comply, we recommend that you serve and file a motion to strike the motion for summary judgment for failure to comply with Rule 9A. Make sure, however, that you have conferred per Rule 9C and attempted to persuade the moving party to file an amended Rule 9A package with an accurate joint appendix.
  4. The defendant did not comply with Rule 9A and filed an “emergency” motion, which is not an emergency. What should I do? We see faux “emergency” motions all the time. A true emergency motion is one that requires resolution before the ten (or thirteen, if served by mail) days necessary to comply with Rule 9A. For example, a tracking order deadline is about to expire. Having waited until the 11th hour to seek an extension of this or that deadline may cause you anxiety; but your inattention is not the court’s emergency. A true emergency is one that arises beyond your ability to control. (Think pandemic.) If opposing counsel files a motion as an emergency motion and you do not agree, call the assistant clerk in the session to which your case is assigned. Inform him or her that you do not believe the motion is an emergency, and intend to oppose it. The clerk will then alert the judge to the opposing party’s intention to oppose and the disagreement as to whether the motion presents a true emergency. In that event, the judge will typically wait to act on the motion until receipt of the opposition.

Consequences: “The court need not consider any motion or opposition that fails to comply with Rule 9A.” The court “may return non-compliant submissions to counsel with instructions for re-filing, and may impose other sanctions for flagrant violations of the Rule.” The “other sanctions” may include denial of the motion with prejudice, and requiring the payment of costs and fees by the non-compliant party.

When followed, Rules 9A and 9C promote judicial efficiency and economy, and allow for the timely resolution of civil motions. When parties fail to comply with those rules, they waste their own and their clients’ time and money.

Hon. Robert B. Gordon has been an Associate Justice of the Massachusetts Superior Court since February, 2013. Prior to joining the bench, Judge Gordon was a partner of Ropes & Gray, LLP.

Hon. Debra Squires-Lee was appointed to the Superior Court in 2018.  Prior to her appointment, Judge Squires-Lee was a partner at the Boston law firm of Sherin and Lodgen where she specialized in business litigation and legal malpractice defense. 


Creating Courts Where All Are Truly Equal

by Ralph D. Gants, former Chief Justice of the Supreme Judicial Court, and Paula M. Carey, Chief Justice of the Trial Court 

Voice of the Judiciary 

View and share the pdf version of the article here.

Our beloved colleague and friend Ralph Gants was passionately committed to the ideal of providing equal justice for all and, in pursuit of that goal, as Chief Justice he worked tirelessly and persistently to eradicate racial and ethnic inequities from our legal system. His dedication to this cause is evident in the following essay and the circumstances surrounding it. In response to the call in our June 3, 2020 letter to members of the judiciary and the bar to “look afresh at what we are doing, or failing to do” to address bias and inequality, Chief Justice Gants undertook this essay with Trial Court Chief Justice Paula Carey to review what the Massachusetts courts have done, and to consider what more we must do, to tackle these problems. Despite his heart attack and subsequent surgery, he returned to revising this essay on the morning of September 14, 2020, shortly before his death. It was his last act on behalf of the people of Massachusetts. The text published here is the version that he was working on at that time, and it incorporates his last revisions, with minor additional edits for accuracy and completeness.

– the Justices of the Massachusetts Supreme Judicial Court

In a recent letter to members of the Massachusetts judiciary and the bar, the justices of the Supreme Judicial Court called for a far-reaching reexamination of our legal system to address the chronic problem of racial inequity:

“[W]e must look afresh at what we are doing, or failing to do, to root out any conscious and unconscious bias in our courtrooms; to ensure that the justice provided to African-Americans is the same that is provided to white Americans; to create in our courtrooms, our corner of the world, a place where all are truly equal. . . .  [W]e must also look at what we are doing, or failing to do, to provide legal assistance to those who cannot afford it; [and] to diminish the economic and environmental inequalities arising from race. . . .  [W]e need to reexamine why, too often, our criminal justice system fails to treat African-Americans the same as white Americans, and recommit ourselves to the systemic change needed to make equality under the law an enduring reality for all. This must be a time not just of reflection but of action.”[1]

This is a journey with renewed urgency, a need to travel faster and farther toward the imperative of true equality for all persons of color, but it is important to recognize that this is a journey we began many years ago, and that we are far from where we need to be.  So we look back at our successes and our failures for guidance as we look ahead.  As Maya Angelou once said, “If you don’t know where you’ve come from, you don’t know where you’re going.”

More than 25 years ago, the SJC issued a 200-page report on racial and ethnic bias in the Massachusetts court system.[2]  It concluded that discriminatory behavior based on racial bias or stereotypes existed throughout the courts, and recommended, among other improvements, unification and standardization of interpreter services; making court forms more widely available in translation; ensuring that minorities are fairly represented in jury pools; studying sentencing patterns to determine whether there is any disparity related to race or ethnic bias; mandating diversity and cultural sensitivity training for all court employees; establishing a rule governing fee-generating appointments to improve access to opportunities for minority attorneys; and taking steps to increase hiring and appointment of minority candidates in the court system.  Since that time, our court system has made substantial progress toward many of those goals, thanks in large part to the efforts and examples of many trailblazing court leaders of color, such as former SJC Chief Justice Roderick Ireland.  And yet we must also acknowledge with humility that many of these recommendations still remain relevant today, and that much remains to be done to fulfill them.    

In this article, we will endeavor to describe where we in the courts have come in the past five years in attempting to address racial bias, and where we intend to go in the immediate future. In describing our path forward, we recognize that we do not have all the answers, and we emphasize that we remain open to new ideas and to all points of view, particularly from our colleagues of color; our path is not written in stone.  We intend to listen, to learn from our mistakes, and to adapt to changing circumstances on this journey.

Eliminating racial and ethnic disparities in our criminal justice system.  Over the last decade, numerous studies have documented how racial disparities and high rates of incarceration in our nation’s criminal justice system have had a devastating impact on communities of color.  Massachusetts has one of the lowest overall incarceration rates in the nation.[3]  But, as Chief Justice Gants pointed out in his 2016 State of the Judiciary speech, Massachusetts has some of the highest rates of disparity:  as a nation, in 2014, the rate of imprisonment for African-Americans was 5.8 times greater than for Whites; in Massachusetts, it was nearly eight times greater.  As a nation, in 2014, the rate of imprisonment for Hispanics was 1.3 times greater than for Whites; in Massachusetts, it was nearly five times greater.[4]  In that speech, he announced that he had asked Harvard Law School to convene a team of independent researchers to analyze the data and “find out why.” 

The results of that study, after four long years of research and review, have recently been released.  Based on the data available from 2014-2016, the Harvard study concludes that “Black and Latinx people sentenced to incarceration receive longer sentences than their White counterparts, with Black people receiving sentences that are an average of 168 days longer and Latinx people receiving sentences that are an average of 148 days longer.”  Even after accounting for factors such as criminal history and demographics, charge severity, court jurisdiction, and neighborhood characteristics, “Black and Latinx people are still sentenced to 31 and 25 days longer than their similarly situated White counterparts.”[5]  This disparity is unacceptable; the length of a defendant’s sentence should not differ due to the color of a defendant’s skin or to a defendant’s national origin.

According to the Harvard study, the disparity in the length of sentences for Black and Latinx defendants is primarily explained by differences in initial charge severity.  “[T]he evidence is most consistent with Black and Latinx defendants receiving more severe initial charges than White defendants for similar conduct.”[6]  “Black and Latinx defendants tend to face more serious initial charges that are more likely to carry a mandatory or statutory minimum sentence,” even though “Black and Latinx defendants in Superior Court are convicted of offenses roughly equal in seriousness to their White counterparts” and “Black defendants in particular who are sentenced to incarceration [in state prison] are convicted of less severe crimes on average than White defendants despite facing more serious initial charges.”  The Harvard researchers conclude that “racially disparate initial charging practices lead[] to weaker initial positions in the plea bargaining process for Black defendants, which then translate into longer incarceration sentences for similar offenses.”[7]  The impact of this disparity is particularly significant for drug and weapons charges, which carry significant mandatory minimum sentences. 

In short, prosecutors are more likely to charge Black and Latinx defendants with offenses that carry a mandatory minimum sentence, and use the threat of a lengthy mandatory minimum sentence to induce a defendant to plead to a lesser offense and agree to the prosecutor’s recommended sentence, which is less than the mandatory minimum sentence but still severe.  A defendant who is charged with an offense with no mandatory minimum sentence can argue to the judge that the prosecutor’s sentencing recommendation is too harsh; a defendant who pleads to avoid a mandatory minimum sentence usually needs to agree to the prosecutor’s recommendation as the price for the prosecutor dismissing the offense with the mandatory minimum sentence.     

The good news is that the Legislature can greatly diminish the racial disparity in the length of sentences simply by abolishing mandatory minimum sentences in firearm and drug cases, and for those with prior firearm and drug convictions or juvenile adjudications.  The criminal justice reform legislation enacted in 2018 eliminated mandatory minimums for certain drug offenses, but many remain, and it did not touch mandatory minimum sentences in firearms cases.  Abolishing these remaining mandatory minimums would allow judges in these cases to determine the appropriate length of a sentence based on an individualized evaluation of the circumstances of the crime and of the offender in accordance with the best practices we have established, which they cannot do when the sentence is determined by a statutory mandatory minimum.

The bad news is that, where prosecutors use the leverage they can gain from mandatory minimum sentences by agreeing to dismiss those charges only in return for an agreed-upon sentence, there is little that a judge can do other than accept that recommendation; rejecting the agreement would force the defendant to trial, where he or she would face a longer mandatory minimum sentence if convicted.

In cases where judges are free to exercise their discretion in determining an appropriate sentence upon conviction, we have taken steps to ensure that each sentence is appropriately tailored to the circumstances of the offense and the individual defendant.  In 2014, we asked our criminal courts – the Superior Court, the District Court, the Boston Municipal Court, and the Juvenile Court – to convene working groups to develop sentencing best practices to guide our judges.   These guidelines emphasized the importance of individualized, evidence-based sentences, taking into account the nature of the offense and the unique circumstances of each particular defendant.  For example, the Superior Court’s report on best practices recognized that “[s]entencing practices over the last quarter century have led to a dramatic increase in incarceration without reducing recidivism.”[8]  It stated that imprisonment is certainly necessary and appropriate in cases involving serious crimes, but incarceration may be counterproductive if imposed for low-level offenses:  “Studies show that, rather than reducing crime, subjecting low-level offenders to periods of incarceration may actually lead to an increase in crime based on the prisoner’s adoption of criminogenic attitudes and values while incarcerated, and based on the legal barriers and social stigma encountered after release.”[9]  The guidelines also highlighted the importance of setting individually tailored conditions of probation that consider the risk-levels and needs of each probationer.

Although the discretion of judges is limited where the Legislature has imposed mandatory minimum sentences, we will be reconvening our working groups on sentencing best practices to focus specifically on preventing any disparities that might arise from a defendant’s race, ethnicity, and class. We will take a fresh look at these sentencing best practices through the lens of race, ethnicity, and class. 

We will also look at our bail practices with this same lens.  Although bail was not the focus of the Harvard report, it noted that bail is set in a slightly higher percentage of cases involving Black and Latinx defendants as compared to White defendants, and that Black and Latinx defendants are slightly more likely than White defendants to be unable to pay bail for the duration of the case, thus increasing their time in jail. Additionally, a slightly higher percentage of Black and Latinx defendants are detained without bail as compared to White defendants.[10]

Improving our data collection to identify and remedy racial and ethnic disparities in judicial decision-making. The Harvard study was limited by the data on race and ethnicity that was available from our court database in 2014-2016.  Many of these limitations no longer exist because of improvements in our data collection, but we recognize that we can do better.  For fiscal year 2019, we have race data for 82 per cent of criminal defendants and ethnicity data (Hispanic/non-Hispanic) for 59 per cent of criminal defendants.[11]  We will strive to continue making improvements as quickly as possible.    

We are also beginning to keep data regarding race and ethnicity in show cause hearings and in certain types of civil cases, beginning with eviction cases in our Housing Court.  This information is essential to determine whether racial and ethnic disparities exist in the outcomes of show cause hearings and civil cases. 

Rooting out bias and promoting equity and inclusion within our court system.  More broadly, we must strive to eliminate bias in all aspects of our court system, to ensure that all court users are treated respectfully and fairly, and to provide a supportive and inclusive work environment for all court employees. 

Since 2015, the Trial Court, in collaboration with the SJC, has been engaged in a comprehensive initiative to address issues of bias in our court system.  As a first step in this process, we held a mandatory day-long all-court conference in September 2015 to open a dialogue among Massachusetts judges to consider the impact of implicit bias on the work we do in courthouses across the Commonwealth.  Based on what was learned at that conference, each Trial Court department developed implicit bias benchcards, which were shared with all judges and magistrates. Additionally, follow-up events were held by subject matter, such as civil or criminal matters where scenarios were reviewed to identify issues of bias.

Subsequently, the Trial Court established a Race and Implicit Bias Advisory Committee, which oversees related committees in each department, and created an Office of Diversity, Equity, Inclusion and Experience, headed by Chief Experience and Diversity Officer John Laing.  The Trial Court also retained two nationally recognized consultants from Columbia Law School’s Center for Institutional and Social Change (CISC) to help develop strategies to address racial bias.

Working together, Trial Court leadership, the Trial Court Race and Implicit Bias Advisory Committee, the Office of Diversity, Equity, Inclusion and Experience, and CISC have sought to transform Trial Court culture by integrating diversity, equity, and inclusion efforts into all aspects of court operations, including recruitment and hiring, training, staff meetings, conflict resolution, and strategic planning; by developing and implementing a system-wide, evidence-based curriculum and methodology that bring together employees with different roles and identities, and build the capacity of employees throughout the court system to discuss race and bias openly and constructively, intervene constructively when issues involving race and bias arise, and hold each other accountable; and by building a self-sustaining infrastructure so that, going forward, the Trial Court continually trains employees and develops leadership in addressing race and bias.

The Trial Court has sought to implement these strategies through a number of programs administered by the Office of Diversity, Equity, Inclusion and Experience.  More than 130 Trial Court judges and staff members have participated in Leadership Capacity Building Workshops designed to support judges and court staff in leading difficult conversations on race and identity and addressing issues involving diversity, equity, and inclusion when they arise.  Approximately 90 percent of Trial Court personnel have engaged in Signature Counter Experience training — a customer service course that is designed to ensure that all court users are treated respectfully and professionally throughout the courthouse.  The Office of Diversity, Equity, Inclusion and Experience has created a program entitled “Beyond Intent,” which seeks to educate court members about the harmful impact that words and actions can have on colleagues and court users even though no injury was intended.  And Superior Court Judge Angel Kelley Brown and Chief Diversity and Experience Officer John Laing are also preparing a video for all judges and court staff urging them to be “upstanders” — to stand up against acts or words reflecting bias, conscious and unconscious, whenever they see them.  

Another important step we have taken in our Trial Court is to promulgate a new and comprehensive anti-discrimination policy and establish a new Office of Workplace Rights and Compliance to enforce the new policy.  This Office addresses and investigates concerns and complaints of discrimination, harassment, or retaliation involving protected categories such as race, gender, or disability.    

We are also educating ourselves on the tragic history of racism in this country and how to combat it more effectively.  In April 2019, 50 judges travelled together (paying our own way) to Montgomery, Alabama to visit the Legacy Museum and the National Memorial for Peace and Justice commemorating victims of lynching, both created by Bryan Stevenson’s Equal Justice Initiative.  In October 2019, Bryan Stevenson in turn visited us and spoke to more than 140 judges at a forum sponsored by the Flaschner Judicial Institute.  And in July 2020, more than 115 judges heard Professor Ibram X. Kendi, author of How to Be an Antiracist, via Zoom, again courtesy of the Flaschner Institute.  The Flaschner Institute, through the leadership of its new Chief Executive Officer, retired Appeals Court Justice Peter Agnes, has also planned programs on race and the criminal justice system.  The thirteen judges on the Superior Court’s Race and Implicit Bias Committee are participating in, and invited other judges to participate in, the “21-day challenge for racial equity,” which consists of reading, watching and/or listening to one or more pieces about racism every day, using a syllabus put together by a section of the American Bar Association.[12]   

Despite these efforts, we recognize that we still have much work to do to root out bias in all aspects of our court operations.  For example, our recent discussions with attorneys of color have alerted us to the racial profiling they too often experience from our court officers when they attempt to enter our courthouses or our courtrooms, where they are not treated as attorneys doing their jobs, but are mistakenly profiled as criminal defendants, or the family members or friends of criminal defendants.  The Trial Court Security Department has instituted implicit bias training to address this concern.  And we have established a hotline in the Trial Court’s Office of Workplace Rights and Compliance – 617-878-0411 – that attorneys and members of the public can call either to lodge a complaint about acts of bias by judges and court staff, or simply to call out such conduct and request that it be corrected.             

Increasing diversity in our court system.  Another means of fighting racial and ethnic inequity in our legal system is by increasing the diversity of court personnel.  A more diverse workforce brings a broader range of perspectives into the courts and thereby helps to educate us all about the experiences of people who are different from us in race and ethnicity, as well as gender identification, sexual orientation, or class background.  A court workforce that mirrors the diversity of our Commonwealth also promotes litigants’ trust in the equity of our judicial system.  As stated in the Trial Court’s Strategic Plan 3.0 (July 2019), “we want our workforce to reflect the diversity of our users and to be culturally competent and welcoming.”  Accordingly, we have made it a strategic priority to increase the diversity of our workforce through recruitment, outreach, career development, and promotion.       

Of course, many positions in the court system are not subject to the courts’ control.  Judges and clerk-magistrates are appointed by the Governor, with the advice and consent of the Governor’s Council, while certain other clerks of court and registers are elected.  But where the courts have the authority to make their own employment decisions, we can use this power to increase the diversity of our court personnel by hiring and promoting qualified candidates of color.   

To measure progress toward this goal, the Trial Court has instituted an annual Diversity Report.  The initial Diversity Report, issued for Fiscal Year 2017, showed that overall 23% of Trial Court employees were members of racial/ethnic minority groups, which was consistent with the overall race/ethnic percentage (21%) of the Massachusetts Labor Market as reported in the 2010 census.[13]  Since then, the Trial Court has continued to move forward, and as of Fiscal Year 2019, the percentage of race/ethnic minority Trial Court employees had increased to 26% of all Trial Court employees.[14]  The Trial Court has also made improvements in the percentage of race and ethnic minorities employed in its managerial ranks.  Between Fiscal Year 2017 and Fiscal Year 2019, the percentage of race/ethnic employees has increased from 16.1% to 23.6% of officials and administrators, and from 23.2% to 24.6% of professionals.[15] 

Each year, we celebrate our increased diversity with annual cultural appreciation events that encourage court staff to share and learn more about each other’s cultural heritage.  What began as a day of cultural appreciation events has evolved into a week of such events, celebrated throughout our courts.    

But as in other areas, our efforts to improve the diversity of our workforce must continue.  In particular, as Chief Justice Carey recently noted, “[t]he number of Black employees and employees of color is insufficient in the judicial and clerk-magistrate ranks.”  While we do not have control over these appointments, we do have an “obligation to hire people of color in leadership roles and do more to mentor our diverse talent and create pathways that would enable them to move up in the organization” and “build the skills to obtain a judicial or clerk-magistrate appointment and other positions within the court system.”[16]

Becoming “more proximate” with communities of color. We recognize the need, in the words of Bryan Stevenson, to get more “proximate” with communities of color, so that we better understand the experience of these communities with our courts and can attempt to address their concerns.  Massachusetts was among six states chosen nationally by the National Center for State Courts to participate in a pilot community engagement program to increase public trust and confidence in the courts.  Through this program, the Office of Diversity, Equity, Inclusion and Experience has worked with local court and community leaders to hold a variety of public forums designed to educate participants about court procedures, answer their questions, and address their concerns.  Judges and justices have also participated in town halls and listening sessions, in person and virtually, in communities of color throughout the Commonwealth.  And we shall continue to do so in the coming months.    

Conclusion.  We recognize that we have miles to go in addressing the effects of systemic racism and bias in our courts.  But it is also important to recognize that we have already begun this journey and that we are deeply committed to continuing to make progress as quickly as we can, for failure is not an option.  To paraphrase the old civil rights song, we will not “let anything turn us around” as we march down that road.  And as we do so, we invite your observations, your suggestions, your engagement, and, yes, your constructive criticisms, to help us see the way forward more clearly.

[1] Letter from the Seven Justices of the Supreme Judicial Court to Members of the Judiciary and the Bar, June 3, 2020.

[2] Equal Justice:  Eliminating the Barriers, Supreme Judicial Court Commission to Study Racial and Ethnic Bias in the Courts, Sept. 1994.

[3] See The Sentencing Project, State-by-State Data(showing Massachusetts as having the second lowest rate of incarceration among all states, based on U.S. Bureau of Justice Statistics data for 2018).

[4] Annual Address:  State of the Judiciary, Ralph D. Gants, Oct. 20, 2016, at 5, citing Selected Race Statistics,

Massachusetts Sentencing Commission, Sept. 27, 2016, at 2.

[5] Racial Disparities in the Massachusetts Criminal System, A Report by The Criminal Justice Policy Program, Harvard Law School, Sept. 9, 2020, at 1.

[6] Id. at 63.

[7] Id. at 64.

[8] Criminal Sentencing in the Superior Court:  Best Practices for Individualized Evidence-Based Sentencing, March 2016; updated October 2019, at iv. 

[9] Id. at v.

[10] Racial Disparities in the Massachusetts Criminal System, at 23-24.

[11] Altogether, we have we have data on the race or ethnicity, or both, of nearly 93 per cent of criminal defendants.

[12] See www.americanbar.org/groups/labor_law/membership/equal_opportunity/?fbclid=IwAR1lHvCxX9RzWp0u7FarSzDm3JhPEHS6GRK76uwtKSgL2pCOMSGcbqVkTZY or   www.americanbar.org/groups/public_contract_law/leadership/21-challenge/.

[13] Massachusetts Trial Court Annual Diversity Report Fiscal Year 2017, at 1, 3.

[14] Annual Diversity Report, Massachusetts Trial Court, Fiscal Year 2019, at 6.

[15] Massachusetts Trial Court Annual Diversity Report Fiscal Year 2018, at 12; Annual Diversity Report Fiscal Year 2019, at 12.

[16] Paula M. Carey, Reflections on a ‘particularly symbolic’ Juneteenth, Massachusetts Lawyers Weekly, June 25, 2020.



Truth and Justice with Capital Letters

by Hon. Margaret H. Marshall and Marina Pullerits

Voice of the Judiciary

Human reason is beautiful and invincible.
No bars, no barbed wire, no pulping of books,
No sentence of banishment can prevail against it.
It establishes the universal ideas in language,
And guides our hand so we write Truth and Justice
With capital letters, lie and oppression with small.
It puts what should be above things as they are,
Is an enemy of despair and a friend of hope. . . .

Czeslaw Milosz, Incantation. Translated by Cseslaw Milosz and Robert Pinsky.

January 9, 2020: The question comes near the end of oral argument. “What is the obligation of the Court,” asks the Chief Justice, when defense counsel reports allegations of racism in jury deliberations that may have changed some votes to guilty? The Chief Justice repeats the question: “What’s a judge’s obligation” in such circumstances? The answer comes on September 24, 2020, ten days after his death. It is the obligation of a judge to address promptly any allegation that racial or ethnic bias may have infected the jury deliberations, the Chief Justice wrote. Commonwealth v. McCalop, 485 Mass. 790, 791 (2020). “A guilty verdict arising from racial or ethnic bias not only poses a substantial risk of a miscarriage of justice,” he continued, “but also, ‘if left unaddressed, would risk systemic injury to the administration of justice.’” Id. (quoting Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 868 (2017)).

Ralph D. Gants served as Chief Justice of the Supreme Judicial Court from 2014 to 2020. McCalop, and several more of his final opinions, are exemplars of the tenets he held for guiding the Massachusetts judiciary. Each opinion is beautifully written, carefully reasoned. Each holds in equipoise the resolution of the case at hand, and the articulation of broader principles, signposts to ensure future decisions will be fair, just, and sensible. Each is a painful reminder of how much we have lost by his untimely death. Chief Justice Gants wrote to establish universal ideas in language; human reason guided his hand to write Truth and Justice with capital letters.

In two of Chief Justice Gants’ last opinions, the Court recommended changes to the Model Jury Instructions on Homicide.[1] In Commonwealth v. Castillo, 485 Mass. 852 (2020), released on October 6, the Court set aside a conviction of murder in the first degree and reduced the degree of guilt to murder in the second degree because, the Chief Justice wrote, the Model Jury Instructions on the meaning of “extreme atrocity and cruelty” did not adequately distinguish between murder in the first and second degree. Id. at 854. “The defendant’s conduct—firing a single shot into the victim’s back—was stupid, senseless, and cowardly,” he wrote. Id. at 867. “Indeed, where it tragically caused the death of a young man, it was atrocious and cruel. . . . But extreme cruelty means that the defendant caused the person’s death by a method that surpassed the cruelty inherent in any taking of human life . . . . Nothing about the facts of this case suggests that the defendant’s conduct met that standard.” Id. at 867–68 (emphasis in original) (quotation and citation omitted). The Court included a new provisionally revised model jury instruction to better distinguish conduct that warrants a conviction of murder in the first degree from conduct that should result in a conviction of murder in the second degree. Id at 865–66, 869.

In Commonwealth v. Dunphe, 485 Mass. 871 (2020), released on October 7, Chief Justice Gants again authored an opinion vacating a conviction of murder in the first degree because of inadequate jury instructions, this time regarding the defendant’s criminal responsibility for the killing. The defendant, suffering from hallucinations and a false belief that the victim was his abusive father, had killed a fellow patient in a psychiatric ward. Id. at 872. The trial judge instructed the jury in a way “that closely tracked” the Model Jury Instructions. Id. Nevertheless, the Chief Justice wrote, there was a “significant risk” that the jury could misunderstand those instructions. Id. at 889. “What our case law declares, but our model jury instructions do not, is that if a defendant has a mental disease or defect, its origins are irrelevant: it does not matter whether the disease or defect arose from genetics, from a childhood disease or accident, from lead poisoning, from the use of prescription medication, or from the chronic use of alcohol or illegal drugs. . . . A drug-induced mental disease or defect still constitutes a mental disease or defect for purposes of a criminal responsibility defense.” Id. at 880–81 (citation omitted). “Intoxication from alcohol or the high from drugs is not a mental disease or defect where the loss of capacity ends when the effects of the alcohol or drug wear off; a mental disease or defect is something more enduring, reflecting something about the person’s brain chemistry that, although perhaps not permanent, is more than the transient effect of the person’s substance use,” he wrote. Id. at 880. The Court again included provisionally revised model jury instructions “to address what we conclude is a potential and problematic risk of confusion.” Id. at 873, 884–89.

As a final example, a district court judge’s ruling that a defendant violated a condition of probation by reporting on a sex offender registration form that his work address was his home—without also reporting as a work address a home in Lynn where he was doing repair work—came under scrutiny in Commonwealth v. Harding, 485 Mass. 843 (2020), released on October 5. The Court reversed in an opinion authored by the Chief Justice, where his search for what he would term “sensible” outcomes is clear: “The interpretation [of ‘work address’] that the Commonwealth asks us to adopt would suggest that a registrant who is self-employed might not be self-employed at all, because each client for whom the registrant provided services for the requisite time period would be deemed the employer, whose address the registrant would be required to record. No reasonable registrant filling out this form would understand the form to ask for this information. Nor would the Commonwealth’s interpretation make practical sense.” Id. at 847. “[I]f the defendant, or other self-employed registrants like him, were required to provide a client’s address as a ‘work address,’” he continued, “many clients who might otherwise hire him might refrain from doing so because they might not want their home address listed on SORB’s website as the sex offender’s place of employment. As a result, the otherwise self-employed sex offender might soon be functionally unemployed.” Id. at 849.

Ralph Gants ended his tenure as Chief Justice as he began it. In remarks delivered when he took the oath of office on July 28, 2014 he said: “I firmly believe that our judicial system will be in a better place in the next three, five, ten years. My confidence does not rest in my belief in me, because I know that I can accomplish none of this alone. My confidence rests in my belief in we, in what I call our justice team. . . . If we are willing to search for new ways to solve old problems, if we are willing to put our egos aside and remember that it is not about us, if we are willing to work our tails off, if we are willing to work together, I know that we can build a justice system that will not only dispense fair, sensible, and efficient justice, that will not only help to address the formidable problems faced by so many of the residents of this Commonwealth, but that will be a model for the nation and for the world.”

Ralph Gants searched for new ways to solve old problems. He worked his tail off. He put aside his ego and worked with others to build a model judicial system. In oft-cited remarks, Oliver Wendell Holmes, Jr., then an Associate Justice on the Supreme Judicial Court, said: “The law is the calling of thinkers. But to those who believe with me that not the least godlike of man’s activities is the large survey of causes, that to know is not less than to feel, I say—and I say no longer with any doubt—that a man may live greatly in the law as well as elsewhere; that there as well as elsewhere his thought may find its unity in an infinite perspective; that there as well as elsewhere he may wreak himself upon life, may drink the bitter cup of heroism, may wear his heart out after the unattainable. . . .” Chief Justice Ralph D. Gants wore his heart out seeking to address the formidable problems faced by so many. He wreaked himself upon life. Why? He was simply being Ralph.

[1] The Justices first approved and recommended the use of Model Jury Instructions on Homicide in 1999. The Court issued revised Model Jury Instructions in 2013. In April 2018, the Supreme Judicial Court again released revised Model Jury Instructions on Homicide.

Margaret H. Marshall is Senior Counsel at Choate Hall & Stewart LLP. She served as Associate Justice (1996–1999) and as Chief Justice (1999–2010) of the Supreme Judicial Court.

Marina Pullerits is an Associate at Choate Hall & Stewart LLP. She served as a law clerk (2018–2019) to Chief Justice Ralph D. Gants.


Giver Gants: A Tribute to Chief Justice Ralph D. Gants

by Hon. Karen F. Green

Voice of the Judiciary

[1]When I think of Ralph Gants, I think “giver.” Ralph made this world a better place by giving everything he had to everyone and everything he touched. From my perspective, that’s his lasting legacy.

Ralph’s predisposition to give all that he had was reflected in his impressive resume. I suspect that you are familiar with that, so I would like to focus on the man I knew behind the resume. 

I knew Ralph both personally and professionally for more than thirty-five years. Our personal friendship remained constant as our professional paths repeatedly crossed.

We first met in 1984, when we were both working for Bill Weld as Assistant U.S. Attorneys. Ralph was handling a high-profile arson case. He also had fallen hopelessly in love with my best friend, Debbie Ramirez. Unfortunately, Debbie had not yet been bitten by the same bug. Ralph enlisted my assistance in helping Debbie to appreciate his finer qualities. Suffice it to say that he did not need much. Ever a zealous advocate, Ralph gave it his all, Debbie fell hard, and my husband, Mark, and I smiled widely as the two joyously wed three years later.  

Mark and I had children and Debbie and Ralph had children, first, Rachel, and then, Michael. Life whirred as the four of us sought mightily to balance our personal and professional lives. Debbie, our friend, Joy Fallon, and I started a tradition of walking on Saturday mornings and sharing birthdays together. I still fondly remember a 1993 call I received from Ralph suggesting that I take his wife away. It’s not nearly as bad as it sounds. Rachel was about a month old and the ever-thoughtful Ralph thought Debbie could use a long girls’ weekend for her birthday. Debbie, Joy and I headed to Florida, where we did nothing but enjoy each other’s company, while Ralph assumed full responsibility for Rachel.

Eventually, each of us left the U.S. Attorney’s Office. Debbie entered academia and Ralph and I went to the DPS, that is, the “dreaded private sector.” I got to work with Ralph again, first as a fellow member of Governor-Elect Weld’s transition team, and later, defending corporate clients in federal criminal investigations. I was struck by his intellect, tenacity, and pragmatism. When I wrestled with a particularly thorny problem, I called Ralph, we talked, and the path forward seemed obvious. It was never about Ralph and always about solving the problem.

Debbie, Joy and I continued to walk on Saturdays whenever we could. In 1997, Mark was nominated to the Land Court. He requested Ralph’s help in the confirmation process.  As always, Ralph immediately stepped up to the plate. Several months later, Ralph’s nomination to the Superior Court was confirmed. We celebrated with him and Debbie then, when Ralph was appointed to the SJC in 2008, and again when he was named Chief Justice in 2014. With family and friends, we also cheered when Ralph threw the first pitch at Fenway Park after his swearing in.

Fast forward more years. After Mark’s 2017 appointment as Chief of the Appeals Court, he and Ralph worked closely together on a myriad of challenges, including the pandemic confronting the court system. I continued to admire Ralph’s capacity to dig in and to solve whatever problem came his way. And Debbie and I talked, on our walks, about how we never would have predicted, when we were still in law school, that life would turn out the way it did. 

Others have already described Ralph, now affectionately known as RDG, as a brilliant jurist and empathetic leader. He certainly was. The Ralph I knew was a leader who listened carefully and put the interests of others before his own. He had high standards that he applied most rigorously to himself. He cared deeply about the rule of law and equal access to justice. He was a judge’s judge who wrote clear and concise opinions on significant legal issues that others could follow. He got things done by working hard and collaboratively with others. He worked to provide equal access to justice right up until the moment he died.

For me, though, Ralph’s most endearing quality was the unconditional love he gave to his family while shouldering all of his other responsibilities. One of the best measures of a man’s character is the way he treats those closest to him. When his own Dad died swimming at age 90, Ralph immediately flew to New York to take care of his mother. He then personally moved her and all of her belongings to Massachusetts. When Helaine’s health declined, Ralph visited her nearly every weekend at the assisted living facility he found for her. At Helaine’s memorial service, Ralph lovingly delivered a tribute to her that made me cry.

Together with Debbie, Ralph also saw his children through serious medical challenges when they were younger. By his daily example, he showed Rachel and Michael what it means to be a “giver” rather than a “taker.” Today, both are paying it forward by giving their best to others.  Rachel spent the past summer at the Harvard Legal Aid Bureau assisting tenants threatened with evictions and took the Bar exam in October. Michael returned to Massachusetts from Stanford Business School in September and, like his father, is now focused on helping his mother.  

Ralph was an equally thoughtful and caring friend. He, Debbie, Mark, and I shared many happy moments, as well as a few sad ones, over the years. We were fellow travelers in life. We traveled along the same roads not only to judges’ conferences, but also to swim at the beach, to ski in New Hampshire (including during one very scary snowstorm), to bicycle in Italy, and to learn about civil and human rights in places like Israel and Alabama. Ralph took the time to get to know our parents and children, to share in our traditions and celebrations, and to provide a listening ear and comforting words when they were most needed. Whenever I called to request his help, he quickly responded, no matter what else he had on his plate.

And Ralph made me laugh. When Ralph was still in the DPS, I laughed when he delivered an impassioned closing argument in defense of Sweeney Todd at a mock trial at a Boston theater. I recall being struck then by the obvious care that Ralph had devoted to crafting Todd’s defense and the skill with which he had delivered his remarks. Ralph cracked a joke as I nervously joined him in a waiting room outside the White House Counsel’s Office in 2003 that instantly put me at ease. And, in 2013, he sang and danced with a tambourine so unabashedly before all of the patrons at an Italian restaurant that I laughed so hard, I cried. (No, Ralph was not impaired at the time, he rarely drank; he was just once again giving it his all.)

Like many others, I will miss Ralph’s friendship and unfailing kindness, as well as his keen intellect and extraordinary leadership. To paraphrase the poet, Mary Oliver, Ralph died “not simply having visited this world,” but “hav[ing] made of [his] life something particular, and real.” 

Let us honor his memory by continuing to be “givers,” rather than “takers” and by continuing to ensure equal access to justice. And just as Ralph would, let us hold ever close to us the people we love.

[1] “These remarks were originally given orally by Judge Karen F. Green on November 10, 2020.  They have been edited minimally for formatting purposes.

Karen F. Green is an Associate Justice of the Massachusetts Superior Court. She handles serious felonies in criminal trial sessions and complex civil disputes in the Business Litigation-1 Session. She also is a member of the Executive Board of the American Bar Association’s Center for Human Rights, the Advisory Board of UMass Law School’s Justice Bridge, and a Criminal Justice Task Force chaired by Professor Deborah Ramirez of Northeastern Law School. Prior to her 2016 appointment to the bench, Judge Green was a litigation partner at WilmerHale.


Superior Court Judge Ralph Gants

by Chief Justice Judith Fabricant

Voice of the Judiciary

Ralph Gants took the oath as a judge of the Superior Court on November 12, 1997.  At age 43, he had outstanding educational achievements and an extensive background in high-level federal law enforcement and large firm practice, but relatively little experience in the more rough-and-tumble environment of state court. His new colleagues were ready to welcome him as we do everyone who joins us. At the same time, some may have wondered what mindset he would bring, and how he would make the transition. Chief Justice Robert Mulligan conducted Ralph’s induction ceremony on November 13, 1997, in the high-rise building on Thorndike Street in Cambridge later known as the Edward J. Sullivan Courthouse.  The Chief recited the standard induction speech, pledging to our new colleague “our collective and individual fellowship, assistance and cooperation,” and reciting that “each of your colleagues stands ready to assist you in any way you may need, and we know that we can depend on your help when we need it.” 

I never had occasion to talk with Ralph about that ceremony, but I know that he heard those words and took them seriously – or that his natural inclinations led him to do exactly what those words call for. When I was ill for several months, he called regularly, and sent me his favorite novels, which provided comfort through both the mental diversion of reading and the expression of his caring. When the media criticized any judge’s decision, Ralph was among the first to call.  Long before we had our current structured orientation program, Ralph would offer new judges support and consultation, including the fruits of his remarkably well-indexed resource library. Ralph would consult colleagues as well, always doing his own research first, so that his questions reflected full awareness of established law and focused on what remained open to interpretation or discretion. 

From the beginning, Ralph recognized the value of showing up, in times of celebration and fellowship, as well as times of loss. He came to retirement receptions, birthday parties, wakes, and funerals, not just for judges, but also for assistant clerks, court officers, court reporters, and others who were part of our day-to-day work family. He played softball; recited baseball statistics; told funny stories at his own expense; sang silly songs; asked about family members; and, more generally, was good company.  

He did all of that while handling the most challenging cases in every field, civil and criminal, jury and non-jury, all smoothly and skillfully. His opinions were thorough, scholarly, wise, and witty, sprinkled with references to sports, classic movies, and Broadway musicals. He wrote a lot, but his writing never carried a whiff of showing off. He wrote to grapple with complex issues, to explain his reasoning, and to assure the parties that he had heard and considered their positions. When writing would not serve those purposes, he would instead announce decisions orally from the bench, with remarkable clarity and organization, in the manner pioneered by Martha Sosman.

Ralph’s collegiality, along with his humility and good humor, quickly earned him good will, while his towering intellect and conscientious devotion to the law earned him universal respect. He needed both, because from very early in his tenure, Ralph demonstrated his independence, his systemic thinking, and his willingness to express his views to those in positions of power without concern for consequences.

Ralph had no fear of public criticism, or of reversal.  When he found that police errors required dismissal of a charge, or that a police witness’s misrepresentation required suppression of evidence, he said so unequivocally, and sent a copy of his findings to the police commissioner. When presented with expert testimony about a sex offender, he found and read the scientific literature himself, surely cognizant that reversal might follow, as it eventually did.  He enjoined thousands of mortgage foreclosures founded on predatory loans, knowing there was little precedent for his ruling, but believing it was right. As Ralph himself acknowledged at his swearing-in to the SJC in 2009, these decisions put his nomination at some risk. He accepted that risk. 

Ralph also had no fear of court hierarchy. When he arrived at his first assignment in Middlesex County in 1997, he brought his own laptop computer, just as the court was beginning to issue standard equipment, with standard policies for its use.  Barely two years into his judicial service, he sent a letter to the then Chief Justice proposing a process of setting goals and objectives for such matters as case management, long-range planning, and legislation. In 2002, when court leaders announced measures to manage a budget crisis, Ralph wrote a series of eloquent, respectful, and persuasive letters explaining why those measures were misguided.  In about 2005, when he sat for the first time in the Suffolk First Criminal session, he proposed to the Regional Administrative Justice a comprehensive revamping of case-flow processes. 

From my current perspective as Chief, I can easily see how Ralph’s constant suggestions for improvement might have ruffled feathers, especially early in his tenure. But that was not the reaction he elicited. To the contrary, colleagues and court leaders loved and valued him, even though the court did not always adopt his ideas. I attribute that to his humility. Ralph never thought he was smarter or more capable or more committed than anyone else, although many of us thought he was. He respected all of us, and sought to enable all of us together to serve the public as well as we possibly could. 

After Ralph left the Superior Court in early 2009, he came back regularly to speak at our educational conferences and at what we call “New Judge School.” He seemed to feel that he was coming home, and we felt that we were welcoming a returning family member. One tip he gave, which I try to pass on, was this:  If the law seems to be telling you to do something absurd, don’t do it. Think longer. Consult others. Find a solution that makes sense. 

Ralph showed us a way to think about the law so that it makes sense, and it serves. His memory is a blessing to all of us and to the public.  

Chief Justice Judith Fabricant joined the Superior Court in 1996, and was appointed as Chief Justice on December 1, 2014. Prior to her judicial service, Chief Justice Fabricant served as an Assistant Attorney General for Massachusetts, including four years as Chief of the Government Bureau. She also served as an Assistant District Attorney for Essex County, Massachusetts, and for Wake County, North Carolina. She worked for the Boston firm Hill & Barlow, after serving as a law clerk to the Hon. Levin H. Campbell of the United States Court of Appeals for the First Circuit. She is a graduate of Yale College and Yale Law School.


Effective Advocacy in a “Virtual” World

by Hon. Hélène Kazanjian

Voice of the Judiciary

We find ourselves during these difficult times trying to operate court business without parties actually coming to court. This is likely the “new normal.” In the short term, while we have begun to open courthouses for some in-person business, the court still encourages virtual hearings for most matters. In the longer term, it is possible that we will continue to handle some court business virtually for quite some time, if not forever.

Courts throughout the Commonwealth have been conducting virtual hearings for several months. It has unquestionably been an adjustment for everyone. Lawyers and judges have had to be flexible and patient as we have grappled with video and audio problems. Many have had to learn how to use virtual conferencing programs such as Zoom. We most certainly have had to keep our sense of humor as the occasional cat, dog, or young child makes a fleeting appearance at a hearing.

In light of these challenges and the limitations of the technology, how can lawyers most effectively advocate for their clients in a virtual environment?

First, it is important that lawyers understand how hearings are being conducted at the courthouses. The short answer is that it differs throughout the Commonwealth because technological capabilities vary. Despite these differences, in all instances, hearings have to be officially recorded, which generally requires the presence of a clerk in the courtroom. Judges will either be physically present in the courtroom or joining the hearing virtually. In some courtrooms, the clerk is able to connect the in-court For the Record (“FTR”) recording system to the virtual platform. Where that technology is not available, FTR will record the sound in the courtroom, which will ordinarily come out of small computer speakers built in or connected to the judge’s or clerk’s laptop.

With this backdrop, here are some suggestions to enhance your ability as lawyers to effectively advocate during a virtual hearing:

  1. Technology, technology, technology: First and foremost, make sure you have working technology. Minimally you need a computer or tablet with a camera, microphone, and speakers. You also need fast and reliable Wi-Fi. It is not ideal to be calling into a hearing from your cell phone. Cell phone callers often cannot join by video or cannot be heard well enough. You also may not be able to see all of the participants on your phone.
  2. Settings: Once you sign into a hearing, make sure the correct microphone is selected on your device. For example, if you are using an external webcam, you have to select the webcam as your operating microphone. The audio settings on your microphone and speakers must be loud enough. In Zoom, there are microphone and audio settings within the Zoom program. That means that in addition to checking the settings on your device, you need to check the program’s audio settings.
  1. Virtual workspace: Make sure you have a workspace that is conducive to a virtual hearing; that is, a place that allows you to participate without distraction. Trying to join a hearing from a cell phone in your car or from a computer in a room where there is other activity is not effective. Look directly at your camera and speak loudly into the microphone. Make sure your background, whether it is real or virtual, is presentable. Likewise, if you use a pin photo, which is an image that appears on your account when you shut down your video feed, make sure it is court appropriate. We know that many of you are juggling a lot. You may be working at home with other family members present who need your attention. That being said, do your best to set aside the scheduled time to focus on the hearing.
  2. Practice: Practice before you appear for your first virtual hearing. Find out in advance if your equipment and Wi-Fi work. Learn how to sign in with both video and audio, and how to adjust the microphone and speaker settings. Because the sound is sometimes better when the parties who are not speaking are muted, make sure you know how to mute and unmute yourself quickly.
  3. Identify yourself: So the record is clear, you should identify yourself each time you speak during the hearing, unless the court addresses you by name.
  4. Documents: If you have documents, pleadings, photographs or other items that you would like to use or “hand” to the judge during the hearing, or if you are planning to offer exhibits into evidence, make sure to get them to the clerk and the other participants in advance. Check with the clerk several days before the hearing about how he or she will accept these items (e.g. email, e-file, mail). Screen sharing can be an effective way to display documents during a hearing. Attorneys should check with the clerk in advance to make sure the host (the judge and/or clerk) is comfortable with that aspect of the technology.
  5. Other participants: In criminal cases, defendants will be present, or virtually present, unless their presence has been waived. Victims, witnesses, clients in civil cases, and members of the public should also be able to attend proceedings virtually, and, in some instances, give testimony. It is advisable to check with the clerk in advance if others want to attend a hearing. Make sure the individuals wanting to attend have the required technology to sign into the virtual call. If you are going to be questioning a witness about documents, pleadings, photographs, or other items, make sure the witness and all parties have copies of those items in advance. Speak to your client and/or witnesses before the hearing about how they should conduct themselves during the hearing so as to not distract from your arguments. It is not helpful to your case if your clients are rolling their eyes or shaking their heads during the hearing.
  6. Breakout rooms: If you and your client are in different locations and you need to speak privately during the hearing, if the court has the capacity you can ask the judge to send you to a virtual breakout room, where you can have a private/unrecorded conversation. This also can be done when multiple lawyers representing a single party or lawyers of different parties want to consult privately during a hearing. Alternatively, parties can mute themselves and briefly communicate with each other off-line.
  1. Demeanor: Conduct yourself in the hearing just as you would if you were in court. Address the judge not the other parties. The usual back and forth is not as easy so be prepared with a short presentation. At the same time, there is sometimes a sound delay, so be aware if the judge is trying to ask you a question. Finally, wear court appropriate attire.

The sudden switch to virtual hearings has required patience and a touch of ingenuity. In the end, virtual hearings can only work if we all accept and adjust to this new way of conducting court business, and if we commit to taking the necessary steps, including technology upgrades and individual training.

 

Judge Hélène Kazanjian has served as an Associate Justice of the Superior Court since 2016. Previously she served as the Chief of the Trial Division at the Massachusetts Attorney General’s Office, and as an Assistant United States Attorney in Washington, D.C. and Maine.  


First Degree Murder Appeals: From Docket to Disposition

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.


Probate and Family Court

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.


Land Court Department of the Trial Court

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.