Can Judges Tweet? Judicial Ethics in the Social Media Age

fosterby Hon. Robert B. Foster

Voice of the Judiciary

The rise of social media has created questions for judges that would not have occurred to anyone ten or fifteen years ago. May a judge have a Facebook page? Must judges delete their Linked-In accounts after being appointed to the bench? Is it possible to use a Twitter account consistent with the Code of Judicial Conduct? These three questions are a modern twist on the dilemma judges have always faced: how does a judge maintain the integrity, independence, and impartiality of the judiciary without losing all contact with the world about which the judge is asked to pass judgment?

The answer to these questions starts with the Code, most recently revised effective January 1, 2016. The Committee on Judicial Ethics (CJE) is the SJC-appointed body charged with interpreting the Code and answering specific questions about the Code’s application. Much of its work consists of letter opinions, issued in response to judges’ questions. In 2016, the CJE issued letter opinions answering these three questions yes, no, and yes, but only under certain conditions that ensure that the judge acts online consistently with the Code.

The first letter opinion concerns judges’ use of Facebook. For the few people left who are unfamiliar with it, Facebook is an online social media platform. Participants create a page about themselves on which they can post news and personal information. Importantly, Facebook members “friend” other members, so that they can see their friends’ posts and their friends can see theirs, and can comment on or indicate they “like” others’ posts. In the letter opinion, the CJE set forth some of the provisions of the Code that use of Facebook implicates. These include Rule 1.2, requiring judges to “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary” and to avoid even the appearance of impropriety; Rule 1.3, which bars the abuse of the judicial office to advance the personal or economic interests of the judge or others; Rule 2.3, barring bias, prejudice or harassment; Rule 2.4, requiring judges not to permit personal, financial, or political interests or relationships to influence or appear to influence their judgment; Rule 2.9 against ex parte communications; Rule 2.10 against judicial speech on pending matters; Rule 2.11 on disqualification; and Rule 4.1 prohibiting judges from participating in political and campaign activities. All these are swept up in Rule 3.1, “which provides that a judge must conduct all extrajudicial activities in a manner that does not interfere with Code principles and provisions.”

Applying these provisions, the CJE found that judges could use Facebook, even identifying themselves as judges, so long as they do not do things like comment on pending matters, make political or commercial endorsements or comments, do anything that looks like an ex parte communication or suggests that anyone is in a position to influence the judge, or post anything that conflicts with the dignity of judicial office. Moreover, a judge must not “friend” any attorney who might appear before the judge. In short, the CJE reminded judges that Facebook is public, and any comment, and even any “like” of another person’s post, is a public communication that must be made within the strictures of the Code.

The next letter opinion concerned a judge’s use of Linked In. Linked In is a kind of professional Facebook, a “business-oriented social networking site.” Applying the principles set forth in its Facebook letter opinion, the CJE stated that the Code allows the use of Linked In so long as the judge is “not . . . connected with any attorney who is reasonably likely to appear before the judge.” The judge must not only avoid connecting with such attorneys, but must also disconnect with any attorneys with whom the judge is currently connected.

The last of the three letter opinions concerns a judge’s use of Twitter. As the CJE quite cogently explains, Twitter is a social network that permits users to post “tweets” of up to 140 characters, plus images or videos. “Twitter is meant to be shared; users follow selected other users.” A user’s homepage includes a “feed” that displays tweets from the Twitter accounts the user is following. A user can post selected tweets from the feed, a practice known as “retweeting.” Importantly, “[u]nless the user indicates otherwise, the act of retweeting generally suggests that the user endorses the views expressed.” A user’s tweets and retweets show up on the feeds of the user’s followers, and are also publicly available to anyone who visits twitter.com.

The letter opinion addresses how a current judge uses Twitter. It begins by reiterating the Code provisions implicated by the use of social media that the CJE discussed in its Facebook opinion. It repeats that judges are not barred from using social media, so long as that use is consistent with the Code. It goes on to note, however, that use of Twitter raises some particular issues. The Twitter account in question identifies the user as a judge, and “when a judge is posting publicly as a judge, the judge must be exceptionally cautious” because “the public may perceive the judge’s communications to have the imprimatur of the courts.” Therefore, in general “a public, unrestricted Twitter account of an identified judge may be used only for informational and educational purposes.” Specifically, a judge may share upcoming and past bar events and news of general interest to the bar, report on case decisions of the SJC or other courts, and advise lawyers on trial practice. The judge must be careful, however, not to do so in ways that appear to compromise the judge’s impartiality or demonstrate a personal bias or opinion for or against a person or a political issue. The letter opinion also reminds judges that these considerations also apply to retweets, and to the list of other Twitter accounts that a judge follows, as all of these are public.

As the CJE recognizes, it does no good for a judge to withdraw completely from society. Judges must maintain contact with the world that they are asked to judge; they must have some understanding of the social circumstances of the people who appear before them. Thus, judges are entitled to have friends, to have conversations at parties, to attend public and social events. The caveat is that they must do so within the confines and requirements of the Code and in a way that does not call into question their fairness and impartiality or that of the judiciary. Social media in their various forms are an amplification of the direct social contacts and interactions of a judge. Social media make it possible for a judge to interact with friends over a far wider range than in person. The big difference is that these interactions are far more public than a conversation at a dinner party. The simple rule for judges who use social media is to keep this in mind and not to say anything on Facebook or Twitter that they could or would not say in any other public setting.

Hon. Robert B. Foster is an Associate Justice of the Massachusetts Land Court.  Before his 2011 appointment, he practiced with Rackemann, Sawyer & Brewster, P.C.  He is a graduate of Haverford College and Harvard Law School.


Virtually There: e-Filing Becomes a Reality in the Massachusetts State Courts

doylekenneallystantonwright

by Hon. Maura S. Doyle, Francis V. Kenneally, Joseph Stanton and Kim J. Wright

Voices of the Judiciary

In the spring of 2014, the Massachusetts Judicial Branch contracted with Tyler Technologies, Inc., to pilot e-filing through Tyler’s Odyssey File and Serve platform.  Although the Federal PACER system is well established, it is not available to states, necessitating that Massachusetts develop its own system.  Three departments of the Trial Court, and each of the appellate courts, designated certain case types – and in the case of the Trial Court departments, pilot locations – for their respective e-filing pilots.  Over the next 18 months, pilot court personnel teamed with the Courts’ Judicial Information Services Department and Tyler Technologies to establish both a general e-filing system for the Judicial Branch and specific systems tailored to each pilot court’s particular filing requirements.  After extensive testing and training of volunteer attorneys for each pilot court, attorneys who regularly filed pilot case types in those pilot courts were invited to e-file.  The e-filing system allows a user registered with Tyler to remotely upload a pdf for a court filing in a specific case, select the appropriate court description of the filing from a dropdown menu, electronically serve it on other parties, and file it electronically with the court, generating an appropriate entry on the docket and a link to the pdf in the court’s document management system, without any paper original or duplicate being filed.  Tyler charges a modest convenience fee for civil filings that the courts can waive for indigent parties and government filers.

Beginning in the fall of 2015 and continuing through the spring of 2016, the various pilots were conducted on a phased basis.  In June 2016, participants conducted an assessment of the pilots, toward a decision whether to proceed with Tyler beyond the pilots to full implementation.  Attorneys were asked specifically for input on the registration process, the value of any assistance received from the vendor and specific questions about the e-filing process, including adding service contacts, serving documents through the Odyssey File and Serve, uploading pdfs and making payments.

Overall, responses to the survey were positive.  The overwhelming majority of attorneys indicated that they did not encounter problems in registering as a filer, found filing cases to be “easy” or “moderately easy,” had little difficulty uploading PDF documents, and did not encounter problems with making a credit card payment.  Comparatively modest concerns were identified for adjustment and improvement during continued implementation.  Based on the positive results of the assessment, the Supreme Judicial Court, the Appeals Court and the Trial Court decided to move forward with Tyler Technologies and expand e-filing.

A Closer Look

Appellate Courts

Before describing the current – and future – state of e-filing in the Appellate Courts it is worth taking a brief look back at the foundation the Courts built over the past decade, in preparation for e-filing.  During that time, the Courts have adopted a number of paperless practices, including:  scanning decision-related documents (e.g., briefs, transcripts, and record appendices); coordinating with the Trial Court for production of transcripts in PDF; adopting standing orders for court notices and filings by e-mail; permitting electronic signatures and service; encouraging Judges and court personnel to utilize PDFs and electronic editing features in their daily work, and equipping them with the necessary software and hardware to do so; storing PDFs in the Courts’ document management system for access by all court personnel; electronic distribution of, and remote access to, case documents by Justices; and, within the Appeals Court, reducing the number of required paper copies from 7 to 4.  Briefs in non-impounded cases scheduled for argument are made available to the public on the Courts’ website.  For the past year or two, the overwhelming majority of judges on the Appeals Court, and a majority of the Justices on the SJC, have prepared for, and participated in, oral argument working exclusively from PDFs on an iPad, and iPads also are used by staff attorneys and other personnel to assist in their paperless practice.  The Reporter of Decisions electronically edits and publishes the Courts’ opinions, and has transitioned to a completely paperless release of advance sheets.

In addition, the SJC for the Commonwealth has transmitted briefs and transcripts to the U.S. Supreme Court via cloud-based technology.  Within the SJC for Suffolk County, more than 3,000 annual petitions for admission to the bar are scanned and electronically stored, before being digitally reviewed by the Board of Bar Examiners, single justice decisions are electronically transmitted upon request, and most written communication between counsel and the clerk’s office occurs by email.  More than 4,000 annual filings of required bar admission data from law schools and the National Conference of Bar Examiners, formerly in hard paper copies, now are filed in digital format and are stored in the court’s case management system, and partial electronic processing has led to a reduction by more than fifty percent in hard copy paper filings incident to requests for Certificates of Admission and Good Standing.  Finally, the Appeals Court stored over 17,000 pdfs of court filings in 2016.

In sum, the paperless foundation and experience developed over the past decade has prepared the Appellate Courts for the advent of electronic filing.

The Supreme Judicial Court for the Commonwealth launched its e-filing pilot on November 2, 2015.  For the first time, attorneys e-filed applications for direct and further appellate review, a significant departure from past practice where the appellate rules require 18 paper copies – on average over 1000 pages per application. The build-up to the launch required extensive planning by the clerk’s office and assistance from attorneys, civil and criminal alike, who beta-tested and provided critical feedback that led to improvements in the e-filing system.  On  October 14, 2015, Clerk Kenneally conducted a free e-filing seminar sponsored by MCLE and attended by hundreds online and in Boston.  MCLE continues to offer the archived program free of charge on its website. Perhaps the most telling statistic to illustrate the success of e-filing to date is the high rate of attorney participation particularly in light of national averages where e-filing is not mandatory.  Tyler Technologies, the project’s e-filing vendor, estimates that participation rates in states where e-filing is not mandatory is about 15%.  The clerk’s office for the Commonwealth presently has an estimated 80% participation rate that has led to substantial savings in time and money for attorneys who no longer have to worry about the burden of printing paper, delivering applications, and rushing to the courthouse by closing time.  For the Justices of the Supreme Judicial Court, accustomed to reviewing over 100 paper applications monthly, e-filed versions are now loaded onto iPads that provide portability and ease of use.  At present, expansion from applications to briefs and appendices in full court cases is under review and the clerk’s office hopes to offer further relief from paper production in the future.

In January, 2016, the Supreme Judicial Court for the County of Suffolk initiated its e-filing pilot, encompassing all bar docket cases filed on and after January 1, 2016.  This required extensive training of the staff at the Clerk’s Office, Office of Bar Counsel and the Board of Bar Overseers (BBO).  Because bar discipline actions are initiated by only two entities, the Office of Bar Counsel and the BBO, all such actions are now filed electronically.  Any responsive pleadings that are not e-filed are scanned by the County Clerk’s Office, thereby making all pleadings entered in any bar docket cases filed on or after January 1, 2016, entirely electronically available.  In 2017, Clerk Doyle will be implementing the e-filing of petitions for admission to the bar on motion and, thereafter, petitions for admission to the bar by examination.

Among all the Courts, e-filing is perhaps furthest along at the Appeals Court.  The Appeals Court launched its e-filing pilot in March 2016, allowing attorneys to initiate and file most documents electronically in civil, non-impounded panel appeals, without any paper original or duplicate filing.  The court has since expanded its program to include criminal appeals, self-represented litigants (SRLs), andimminently, the single justice (“J”) docket (e.g., interlocutory petitions).  The Appeals Court now accepts electronic filing of nearly every type of document from attorneys and SRLs in all non-impounded cases, with no paper required.  Thus, briefs, record appendices, transcripts, motions, status reports, and payment of entry fees may be filed electronically.

Attorneys and SRLs are enthusiastic and e-filing at high percentages, with participation tripling over the winter as several hundred e-filings are submitted monthly.  E-filed briefs already exceed the number of paper briefs filed each month and the parties–including CPCS and government filers–are saving significant costs by not providing multiple paper copies of record appendices.  To file and serve electronically, filers first need to become familiar with new procedures and software programs.  Creating a PDF with optical character recognition, merging a word-processed brief with a scanned addendum into a single PDF, or creating an e-filing account and identifying service contacts for each submission involve new steps–but once completed are easily reproduced the next time.  The Appeals Court’s website provides detailed e-filing explanations and user guides about the court’s procedure and format requirements.

Upon entry of every new case in all three appellate courts, the clerk’s office notifies the parties in writing about the availability of e-filing and includes information on how to become a registered user and to view information on e-filing, including court rules and training videos, through Tyler Technologies.   The Clerk’s Offices in all three appellate courts also provide daily telephone assistance to e-filers and have held several public training seminars.

The Appellate Courts’ e-filing programs have increased access to justice by providing SRLs the opportunity to e-file and substantially reducing their copying and shipping costs.  Further, indigent parties may obtain waiver of e-filing related costs.  Additionally, the Clerks’ Offices provide a public computer with a scanner where any litigant or attorney can scan and e-file documents.  In addition, the Appeals Court has launched a pilot program allowing Trial Courts to electronically transmit the assembly of record on appeal, and the SJC and Appeals Court send electronic notices of orders and decisions to lower court clerks, judges and counsel (in the case of the SJC for Suffolk County, Bar Discipline orders and decisions similarly are sent electronically to the Board of Bar Overseers, the Office of Bar Counsel, respondent, and counsel).

Trial Court

The Trial Court piloted the program at three separate courts – Worcester District Court in September 2015, the Brighton Division of the Boston Municipal Court (BMC), and the Essex Division of the Probate and Family Court in early 2016.  The Quincy District Court became an additional site in March 2016.  In the District and Boston Municipal Courts, the pilots included civil case types, while the Probate and Family Court designated Estate Cases to be e-filed.

For the past several months all Trial Court departments have been actively engaged in planning expansion and implementation, with the pilot court departments taking the lead.  In those departments, the expansion includes additional case types and locations.  Over the next six months, the District Court and BMC will work to provide e-filing for all civil cases, including small claims and supplementary process in all locations.  The Probate and Family Court will expand to all locations and will increase available case types from the designated Estate Matters to Divorce complaints filed pursuant to G. L  c. 208, § 1B, and adult  guardianship matters.

The expansion of e-filing in these departments will be done through a series of phases beginning in the spring and continuing throughout the year until the opportunities for e-filing are available at all of those court locations throughout the state.  The expansion is being planned by geographical regions in order to provide attorneys with the opportunity to use the electronic filing in the various courts they frequent.  In March, Probate and Family Court locations in Bristol, Norfolk and Duke Counties and District Courts in Fall River, Attleboro, Taunton, New Bedford, Edgartown Brookline, Dedham, Stoughton and Wrentham all went live.  The second phase, scheduled for early May, will bring e-filing to Probate and Family Courts in Plymouth, Barnstable and Nantucket, and District Courts in Barnstable, Falmouth, Orleans, Nantucket, Wareham, Brockton, Hingham, Plymouth, Milford and Uxbridge.

Plans are also underway to expand e-filing to the Land, Housing and Superior Court Departments.  Implementation teams are meeting and plans for intricate code set up and integration and testing are in place.  A comprehensive effort to train employees across the state is planned and Tyler Technologies will provide materials and free training opportunities for the bar.

The Superior Court pilot will offer e-filing for all tort actions.  The Superior Court will begin by piloting the process in Middlesex and Barnstable Counties and then expand to the remaining County locations.

The Housing Court pilot will make e-filing available in Small Claims and Summary Process matters.  The initial pilot site will be the Boston Housing Court.

The Land Court is in the early planning stage but its singular location will ensure a quick roll out once set up, testing and training is completed.

Tyler Technologies has also provided the Trial Court with access to its online guided interview tool, Odyssey Guide and File, for self-represented litigants.  The Guide and File technology provides the opportunity for the Trial Court to improve Access to Justice for self-represented litigants through the creation of on line interviews that populate the court form that will eventually be e-filed into the system.  The first such interview technology has been designed for use in Small Claims actions.  The Trial Court also plans to use this tool to develop a similar instrument for Summary Process matters, another case type of interest to a large percentage of self-represented litigants.

Interim Electronic Filing Rules for Pilot Courts were approved by the Supreme Judicial Court in February 2015 with accompanying Standing Orders in each of the pilot court departments.  As the courts move ahead with the expansion of e-filing, proposed amendments to the interim rules, and adoption of Rules of Electronic Filing Procedure, are posted for public comment until May 31, 2017, and thereafter will be submitted to the SJC for approval.

The Trial and Appellate Courts have established a listserv to provide updates and information as e-filing progresses.  If you would like to receive periodic updates on e-Filing as they become available, you are welcome to join the e-filing news list serve.  To join, just send an email to efilenews-join@jud.state.ma.us

The e-filing pilot courts appreciate the efforts of the court personnel, the Judicial Information Services Department, Tyler Technologies, and participating attorneys in establishing the e-filing system.  The Judicial Branch welcomes the commencement of electronic filing in the Massachusetts state courts, and invites you to begin e-filing at efilema.com.

The Honorable Maura S. Doyle is the elected Clerk of the Supreme Judicial Court for the County of Suffolk, an attorney and a member of the Supreme Judicial Court’s Standing Advisory Committee on Civil and Appellate Rules, Information Technology Steering Committee for the Appellate Courts, and Standing Advisory Committee on Professionalism.

Francis V. Kenneally is clerk of the Supreme Judicial Court for the Commonwealth and is an attorney admitted to practice in Massachusetts, Maryland and the District of Columbia.

Joseph Stanton is Clerk of the Massachusetts Appeals Court.  He serves on numerous Trial Court and Supreme Judicial Court committees, including as co-chair of the e-filing rules subcommittee.

Kim J. Wright is the Senior Assistant for Judicial Policy in the Executive Office of the Trial Court working closely with the Chief Justice of the Trial Court and the Court Administrator to ensure the integration and coordination of judicial policy planning and initiatives. She is a graduate of Suffolk Law School.


First Court Administrator Reflects on Five Years of ‘Collaborative Partnership’

spence_harryby Harry Spence

Voice of the Judiciary Guest Contributor

In the last three and one-half years, Chief Justice Paula Carey and I have established that collaborative leadership of the Trial Court, a Massachusetts peculiarity, can work. Perhaps more important, the judges and staff of the Massachusetts Trial Court have convincingly demonstrated that they are anxious to modernize the judicial system. The result has been that together we in the Trial Court have accomplished considerable modernization of the system, and have set the stage for even more dramatic progress in coming years. I approach the end of my five-year term as Court Administrator with a great deal of confidence that the Trial Court will continue to improve the delivery of justice in future years, despite the near certainty that the competition for state resources will grow increasingly desperate in the foreseeable future.

It is important to recognize that prior to the reform legislation of 2011, there was little chance that the operations of the Trial Court could improve. Most important, Massachusetts had never granted to the Judicial Branch the most elementary condition of good management: the power to hold employees accountable for their performance. Until 2011, every employee of the Trial Court had lifetime tenure and could only be terminated “for cause”—violation of the law or “moral turpitude,” whatever that might mean. The Trial Court had 8000 employees in 2007 because if an employee performed his or her tasks poorly, the Court’s only option was to hire another employee to do the recalcitrant employee’s work.

In addition, the Massachusetts judicial leadership, unusually among their colleagues nationally, had rarely taken advantage of a statutory provision permitting the hiring of a court administrator.  The Massachusetts judiciary had a court administrator, reporting to the Chief Justice for Administration and Management (CJAM), from 1978 to 1992. Since that time, no CJAM had elected to appoint a court administrator.  This choice was extremely rare among judicial leadership nationally.

The reform legislation of 2011 profoundly changed all that. The new statute eliminated the “for cause” provision, providing instead that an employee of the Trial Court could be terminated so long as the termination was not “arbitrary or capricious.” Additionally, the hiring of a court administrator was no longer optional with the Trial Court leadership, but became a mandatory appointment of the Supreme Judicial Court.  The Court Administrator was to partner with the renamed Chief Justice of the Trial Court in the leadership of the Trial Court.

It was obvious from the outset that the successful implementation of the new governance structure required above all that there be no daylight between the Chief Justice and the Court Administrator. That necessary condition was facilitated by the staggered appointments of the Court Administrator and the Chief Justice. With staggered appointments, the Supreme Judicial Court can confer with whichever of the two is an incumbent on the appointment of his or her partner. This greatly increases the likelihood that the requisite chemistry between the partners will prevail.

In theory, each of the two partners has a clearly defined domain: judicial policy for the Chief Justice and management and administration for the Court Administrator. In reality, of course, the great majority of issues confronting the leadership of the court are a complex tangle of judicial policy and administration. The opportunities for territorial dispute are legion. Recognizing this, Chief Carey and I resolved upon a flexible joint leadership in almost all matters. In essence, neither of us would make a decision that the other wasn’t fully supportive of—a resolve that could prove either liberating or paralyzing.  In short order, it became clear that our shared values, our common posture towards risk, and, soon enough, our genuine friendship and pleasure in each other’s colleagueship assured that the resolve was liberating.

In fact, the relationship between the Chief Justice and the Court Administrator is simply a microcosm of the entire court system: the relationship requires constant negotiation about power and authority. That negotiation, which quickly became easy second nature to the two of us, is symptomatic of the entire system. For the allocation of power and authority in the system is so complex; so ridden with independent, statutory mandates, often held by persons with lifetime tenure; so fraught with vetoes; that progress in the system depends on the ability of its protagonists to deliberately and consistently put mission before ego and power in the thousand microtransactions that move the system.  Never have I encountered an organization that requires such maturity and forbearance from so many actors.

And so the relationship between Chief Justice and Court Administrator models exactly the qualities that must be emulated throughout the system. It is the creation of a culture of collaboration and comity that is the primary work of the leadership team. The structure only works if all parties extend trust and respect to all others.  For example, when I arrived at the Trial Court, I was struck by the constant reference to the “war between the clerks and the judges.” There is much evidence that the system has put that largely mythical conflict behind it. We need to move beyond all the old myths of internal conflict.

If the court system is to nurture a culture of genuine collaboration, it must constantly emphasize that the effective delivery of justice is a team activity, which requires that every actor in the system carry out his or her assigned task to the best of their abilities. That belief permeates the Judiciary today: the work of the custodian in a courthouse contributes as surely to the dignity of the proceedings as the work of a judge.

Forty thousand people in Massachusetts enter a courthouse every day, coming with their most acute fears, their fondest hopes, their most aggravated controversies, their most profound conflicts. That their thousands of conflicts and controversies get resolved day in and day out with so little crisis or public furor is nothing short of astonishing—and it is an extraordinary credit to our judges, our clerks and their staffs, our Probation Service, our security staff, and innumerable others who operate this system. I retire honored to have served with such persons and confident that they will continue to exercise the moral qualities necessary to the progress already evidenced in the work of the past four years.

Harry Spence, Massachusetts’ first Court Administrator, oversees a $630 million budget, 6,300 court staff and 100 court facilities, in concert with the Trial Court Chief Justice.


Mental Health Courts: Providing Access to Treatment, Restoration of Human Dignity and Recovery with Justice

coffey_kathleenby Hon. Kathleen Coffey

Voice of the Judiciary 

A mental health court is a specialty court whose purpose is to serve mentally ill criminal offenders in the early stages of the criminal process by offering a diversionary program of treatment and strict supervision instead of arrest and detention. It is a collaborative effort between the criminal justice and the mental health treatment systems intended to improve the quality of life of individuals with severe mental illness by providing access to comprehensive services instead of incarceration and to improve public safety by reducing recidivism.

Although it is undisputed that mental Illness rarely leads directly to criminal behavior, many mentally ill people  find themselves in court facing criminal complaints when their behaviors become threatening, aggressive or dangerous to themselves or others.  The use of substances such as alcohol and illegal drugs to self-medicate by the mentally ill populace  further increases the likelihood of  court involvement.

Experience shows that for individuals with severe mental illness, brief periods of custodial detention tend to exacerbate symptoms associated with depression, paranoia and anxiety. Often individuals have difficulty complying with standard reporting requirements imposed by probationary terms or conditions of release while awaiting trial. Those individuals can be disorganized and overwhelmed by the demands of daily living due to their mental illness.  The end result often is a cycle of arrest, incarceration, release and re-arrest with little hope of recovery or successful integration into the community. National and state evidence reveals a disproportionate number of individuals with some form of mental illness within the justice system as compared with the general population.

The creation and development of mental health courts in the Commonwealth is due in large part to the vision of retired Judge Maurice Richardson coupled with a generous private grant from the Sidney Baer Foundation (http://www.baerfoundation.com).  Judge Richardson recognized the cycle of court involvement for those suffering from a mental illness and the overriding need for a collaborative approach between the behavioral health system and courts to effectuate improved outcomes. The importance of the role of the Sidney Baer Foundation in combating mental health issues cannot be overstated.  Sidney Baer was a member of a wealthy and prominent family from the Midwest. While studying at Yale University, Sidney suffered a nervous breakdown and was diagnosed with schizophrenia. He never graduated from Yale due to the challenges and obstacles that his mental illness presented.  With the help and advice of his friend and personal lawyer, Attorney George Handran, he established the Sidney Baer Foundation for the purpose of alleviating the suffering and loss of opportunities endured by the mentally ill. In 2007, in concert with the Boston Medical Center, the Trial Court received initial funding from the Baer Foundation and established the first mental health court in the Commonwealth in the Boston Municipal Court. http://www.baerfoundation.com/

There are presently seven mental health courts operating in the Commonwealth.  The Boston Municipal Court Department holds weekly  sessions in the Central, Roxbury and West Roxbury Court Divisions.  The District Court Department operates  mental health courts  in Springfield, Cambridge, Plymouth and Quincy Courts.

Each court utilizes a team based and problem solving approach. The judge, probation officer, mental health clinician, prosecutor and defense attorney maintain their distinct roles, but work in a collaborative effort to monitor the individual participant’s progress in adhering to the terms of probation, in securing and maintaining treatment and in achieving recovery.

Eligibility for participation differs to a small degree among the mental health courts in the Commonwealth. Some Courts will accept defendants pre-trial with untried open matters. Several courts require a post disposition probationary status.  Participation is voluntary. The Judge has authority to return the case to the traditional court system when there is a breach by the defendant of the program’s policies.

The process begins by a referral to the mental health court session. After consultation with a mental health clinician and the probation officer, eligibility is determined based upon the nature and circumstances of the offense, a psychiatric diagnosis, history of mental health treatment and the willingness of the participant to accept treatment and participate in the session. The clinician will then make a recommendation to the judge.  Once accepted, each participant receives an individualized treatment plan. The participant is required to return to the court session regularly for a remedial review of the effectiveness of the participant’s individualized treatment plan and an evaluation by the court of any obstacles and impediments that interfere with the participant’s ability to receive and maintain mental health treatment.  This ‘holistic’ approach is an important component to the session and it reinforces the message of the court to all participants that their lives have value and that the court is an invested partner in their recovery efforts.

CPCS Attorney David Shea, a public defender and mental health court practitioner maintains that,  ”Criminal cases often implicate serious collateral consequences-apart from potential incarceration-including housing, employment, education, and child custody problems…….Many clients find this holistic approach novel to a courtroom setting and the result is a dynamic that often engenders a powerful motivator; hope.”

Presently, there are over 200 defendants participating in mental health courts in the Commonwealth. 25 % are female and 75% are male. Over 60 % of the participants report a co-occurring substance use disorder and over 50% report a history of homelessness.   The most common mental health diagnoses are bipolar, schizophrenia and schizoaffective disorder.  The racial breakdown of participants is 47% white and 37% black. From June 2015 to June 2016, 40% of the participants successfully completed the mental health court program. The average length of participation in a mental health session is 9-12 months.

It is evident that the future of mental health courts in the Commonwealth will see increased participation due to the Trial Court’s recognition of the importance of addressing the unique and specialized needs of the mentally ill. To that end, the Trial Court has engaged in a state wide ‘Community Justice Project’  to identify resources and programs that will divert individuals diagnosed with a mental illness or substance use disorder at key events or ‘intercepts’ from the justice system and direct them to behavioral health treatment. By acknowledging the benefits of treatment and rehabilitation in lieu of incarceration, the mental health courts extend a compassionate alternative and instill a sense of hope in a vulnerable population.

The success of mental health courts can best be summed up by the words of a recent graduate from the West Roxbury Court’s ‘Recovery with Justice Program’. He told the court, “This program has broken the chains that kept pulling me back to jail. Thank you for giving me back my life. With the treatment you have helped me get, I now have hope that I will be able to work and be a part of my daughter’s life and I will stay out of trouble. “

Appointed to the bench in 1993 b y Governor William Weld, Judge Kathleen Coffey has been First Justice of the West Roxbury Court for the past nineteen years. She is the Director of Specialty Courts for the Boston Municipal Court Department. In 2007, she established the first Mental Health Court, and in 2010, the Homeless Court held at the Pine Street Inn.


Boston Veterans Treatment Court: A Team Dynamic

sinnott_eleanorby Hon. Eleanor C. Sinnott

Voice of the Judiciary 

Our country has been at war for almost 15 years. Deployments take a toll on soldiers and their families. Some get arrested because they suffer from Post-Traumatic Stress or traumatic brain injury and they self-medicate with alcohol and/or drugs. If those defendants are within the Boston Municipal Court Department (BMC) jurisdiction, the Boston Veterans Treatment Court (BVTC) may be an alternative to the regular court trial track.

I served as a Navy Intelligence Officer and had the honor of being attached to Special Operations Command, Korea (SOCKOR). My husband Richard Sinnott, a private attorney practicing in Boston, is a Lieutenant Colonel Judge Advocate in the Army Reserve. He deployed to Kuwait in 2003. My familiarity with military culture both by being a military officer and the spouse of a deployed soldier, and having worked with combat veterans, helps in my interactions with and understanding of veterans as the presiding judge of the BVTC.

Why do I say BVTC “may” be an alternative?

The BVTC focuses on high risk/high needs veterans facing serious charges where there is a nexus between their current problem and their military experience. Individual treatment plans are created for them and each veteran is assigned a mentor. Because the program is usually about

18 months of probation and involves intensive treatment and monitoring, it may not be appropriate for a veteran facing less serious charges.

Probation (which is often pretrial probation), consists of weekly court appearances that taper as the veteran progresses through five phases. Once a treatment plan is established, each week the veteran is tested for drugs and alcohol, must attend three Alcoholics Anonymous or Narcotics Anonymous meetings each week, meet weekly with a probation officer and have mentor contact.

How does a veteran get considered for the BVTC?

If a veteran is arraigned in the BMC Central Division, the case is automatically scheduled for the earliest Friday in the BVTC, for assessment of eligibility. If a veteran is arraigned in one of the other BMC divisions, the veteran’s attorney submits a referral and the case is scheduled for a status date in that same division 4 weeks later. During that time, the veteran is told to visit a BVTC session, given the participant handbook, and a clinical evaluation is scheduled to assess whether there is a nexus between their military service and current case and whether the BVTC can provide the appropriate treatment.   (http://www.mass.gov/courts/docs/specialty-courts/veterans-treatment-court-referral-form-boston.pdf)

Because the BVTC session is a voluntary program, the veteran then has the option to opt in or go the normal trial track.

What are the benefits to the veteran?

For most defendants, their cases will resolve by dismissal. Suffolk District Attorney Daniel Conley supports such resolutions because, in his own words: “Veterans are asked to fight and die in defense of their country.  But many aren’t given the tools to readjust to peacetime lives.  As a result, they’re at a much greater risk of unemployment, substance abuse, and untreated mental illness, which all contribute to increased contact with the criminal justice system.  So with Veterans Court, our goal is to help defendants overcome those challenges rather than be overcome by them.” Dismissals give them a better chance at employment and other opportunities. Most importantly, the veterans receive treatment monitoring and support in areas such as housing, employment, possible upgrades in military discharge status, and legal assistance in civil matters.

Who is on the treatment team and why should I trust that they would know what is best for the veteran?

Most team members have extensive military backgrounds and are committed to the BVTC mission: To provide veterans whose underlying service related challenges brought them into the justice system – with a tailored but flexible supervised treatment program that restores their dignity and pride and returns them to being law abiding, productive members of civilian society.

A unique and essential aspect of veterans courts is peer mentoring, described by Judge Robert Russell of New York, as the “secret sauce” for the success of veterans courts.  Don Purington is the peer specialist/mentor coordinator for the BVTC and oversees mentoring for all five veterans courts in Massachusetts. Although he is the assigned mentor to several BVTC veterans, he is an unofficial mentor to them all.

Mr. Purington’s story is one of redemption. He is a combat veteran who served in the United States Marine Corps from 2005 – 2009 as a fire team leader and squad leader during combat operations in Iraq in 2006. Upon discharge, Mr. Purington was addicted to opiates and began breaking the law to obtain drugs. After detoxing in a jail cell, he was offered the opportunity for treatment and help putting his life back on track. He received inpatient treatment for more than a year and was able to move past his legal issues. A veteran served as a mentor to Mr. Purington, which started him on his path to working with veterans.

Mr. Purington connects with BVTC veterans by sharing his journey, which is a source of strength for them. As he explains: “Some of the most comforting words to someone who is at rock bottom are ‘I understand what you are going through.’ Had I not gotten the mentor that I did and the opportunity to get the help I needed I would be either dead or in jail. It has been 6 years since I started my journey of sobriety and I will continue to use my mistakes to try and help others.” A BVTC veteran described him as “… the most inspirational and biggest positive influence of them all. He is truly like a big brother to me, blood or not. I sincerely love and appreciate this man for everything! … I really hated disappointing him more than anyone.”

The gateway to the BVTC is through probation officer Geri Jurczak (bvtc@jud.state.ma.us). After receiving the one page referral, the eligibility assessment begins.  As part of that process, the veterans are drug and alcohol tested and must abide by the program requirements. Ms. Jurczak conducts home visits and offers referrals to the veterans’ families as needed. A veteran described his experience with Ms. Jurczak like this:

… I have been on probation once before and it made me feel  as if I was being set-up for failure … [Ms. Jurczak] was the complete opposite of what I believed a probation officer to be… She was there for me whenever I had struggles or problems. … She was a huge part of my success and I owe her more than I can give. BVTC is very unorthodox compared to conventional courtrooms because they recognize the need to help veterans returning home from combat. It takes a very special person … to work with combat veterans. … I will forever be grateful for her help in bettering my life.

Suffolk Assistant District Attorney Brett Walker (brett.walker@state.ma.us ) is assigned to the BVTC.  A West Point graduate and a Ranger, who was awarded  two Bronze Stars, ADA Walker has served for 12 years as a light infantry officer in the U.S. Army and the Massachusetts National Guard. An Army Major, he has deployed to Afghanistan and Iraq.  He makes a habit of shaking hands with the defendants at each session.

Attorney Vanesa Velez of the Committee on Public Counsel Services (CPCS) regularly represents BVTC veterans (vvelez@publiccounsel.net). While providing zealous advocacy she understands the BVTC treatment approach.

Thomas Palladino, a licensed social worker, is the BVTC Veterans Justice Outreach Coordinator.  He creates the treatment plans and is responsible for the initial assessments and continuing case management. The team meets weekly before the regular Friday session. Because the BVTC is a high risk, high needs court, Mr. Palladino frequently makes last minute changes to treatment plans. He has found immediate placement in detox or residential treatment programs when veterans have been in crisis.

All combat veterans can obtain VA benefits through the Boston Vet Center.  Amy Bonneau, a Captain in the Massachusetts National Guard, who deployed to Kabul, Afghanistan in 2010, is a licensed social worker and works as a readjustment counselor at the Boston Vet Center.

John Quinn is a Veteran Outreach Coordinator for the Home Base Program (http://homebase.org) – a partnership with the Red Sox Foundation and Massachusetts General Hospital, which provides eligible veterans with world-class clinical care, fitness, wellness and family counseling. Mr. Quinn proudly served in the 101st Airborne Division, U.S. Army Military Police.

Paul Connor, a Captain in the Army National Guard, assists the BVTC with veterans who suffer a severe relapse.  Early this year, Mr. Connor was asked by Sheriff Peter Koutoujian to implement the first Massachusetts correctional unit for incarcerated veterans or pretrial detainees. The Middlesex County Sheriff’s Housing Unit for Military Veterans (HUMV) allows veterans to share experiences and offers programs tailored to them.

The final team member is Assistant Clerk Magistrate Christopher Phillips, who served in the Marine Corps from 1984 –1997 and is currently a judge advocate major in the Army Reserve.

Judge Eleanor C. Sinott is the presiding judge of the Boston Veterans Treatment Court.


Chatting With Jurors in Jury Rooms

Kaplan_Mitchellby Hon. Mitchell Kaplan

Voice of the Judiciary

Before I was appointed a judge, if someone had asked me to list the most interesting things that a trial judge does, I doubt that I would have included chatting with jurors after they have rendered their verdict. However, over the last seven years I have found those post-verdict conversations to be enlightening, reaffirming, and frequently entertaining.

In each county, Superior Court judges are assigned on a rotating basis, each week, to welcome the day’s pool of prospective jurors, as required by law.  See G.L. c. 234A, § 65.  Depending on the county in which you are sitting, your turn comes up every couple months.  Judges take different approaches in their greetings. Part of my approach is try to convince my audience, some of whom are usually skeptical, that most people find jury service an interesting and rewarding experience. I go on to say that when we (judges) speak to jurors who have been seated on juries after they have returned their verdicts, we find that sometimes they have made new friends, they have learned something more about our criminal or civil justice system, and they always feel that they have made an important contribution to their community.  I say this to encourage our potential jurors to serve, and also because I believe it is true.

While I have had the good fortune to speak to a great many juries over the past seven years, these are just personal observations and, therefore, only anecdotal.  After I receive a verdict (or declare a mistrial) and formally thank the jurors for their service, I always tell the jurors in open court that I would like to thank them in a less formal setting in the jury room.  I make it clear that this isn’t an order and they are free to go, but if they have time I hope they will stay a few moments.  I don’t think that any juror has ever left before my court officer escorted me to the jury room.  While some juries are polite, but clearly anxious to disperse and go on about their business, the majority of juries have questions they want to ask, suggestions they want to offer, or generally want to chat about their experience.  I think that juries that have “bonded” during their service are more likely to linger.

After explaining that I do not want to know anything about what jurors said to one another or the course of their deliberations, which I hope they will hold confidential (although having returned their verdict they are freed from any legal obligations not to speak to others), I ask if any juror has any question, comment or observations.  Sometimes that prompts a number of jurors to speak up and sometimes I have to prod with a few questions of my own before a conversation ensues.  Here are some general observations.

Jurors take their responsibilities very seriously–they truly understand that they have been the judges of the facts of the case. Obviously, the subject matter of cases varies.  Some cases are clearly more difficult to decide; some are more emotional; and in some the consequences of the verdict are clearly enormous. Frequently, jurors are physically exhausted at the end of their deliberations.  It is not uncommon to find jurors in tears or fighting them back.  I suspect sometimes that may be because a juror has been convinced to change his or her view of the evidence or a fact.  Sometimes, it is because they have had to make an emotionally difficult decision.

I believe that jurors take very seriously their oath to apply my instructions to the facts as they find them.  Personally, I don’t think that I have ever witnessed jury nullification.  To the contrary, I have had jurors in tears in a personal injury case because they had found for the defendant, even though the plaintiff was very sympathetic or had suffered a debilitating injury.  They had concluded that the defendant just was not negligent.  On a number of occasions in criminal cases, it has been clear that the jurors thought that the defendant was probably guilty of the crime, but the prosecution had not proven guilt beyond a reasonable doubt.  Conversely, jurors have found defendants guilty, but expressed concern over the potential length of the sentence.

Frequently, jurors ask me if there was any additional evidence that had been excluded from trial.  More often this comes up in criminal cases, but sometimes in civil cases as well.  I don’t have the sense that the jurors are angry that evidence was not presented, they just wish that they had more material on which to base their decisions.  I think that collectively juries are very good at figuring out where the missing pieces are in the chain of evidence or events.

A recurring comment is that jurors do not want the lawyers to repeat the same point, over and over.  Innumerable times juries have told me that they got it the first time, certainly the second time, and by the fifth time they really didn’t want to hear about it again. Indeed, some juries find the repetition condescending not convincing.  Often juries will point out that the trial bogged down over “stuff” that was not relevant to their decision making.  It was as if the lawyer was afraid to leave something out.  I think that jurors appreciate charts and graphs that make data understandable, although they will do their best to sort through materials themselves if they have to. In one case in which critical evidence was on a surveillance video, a technologically savvy juror displayed the video frame by frame during deliberations.  Juries tell me that they try to get past which lawyer they liked the best, but obviously they appreciate lawyers who make their job easier.

I think that even in an informal setting there is a tendency for jurors to tell judges what they think the judge would like to hear.  Nonetheless, when I ask, jurors overwhelming tell me that their jury service has been a rewarding experience and they would like to do it again—but not too soon (especially when the trial takes more than a week).

I truly believe that if lawyers, or the public, were flies on the wall when judges chatted with jurors after a trial, it would make them believe what I believe, that while jury trials may not be the perfect way to resolve disputed issues of fact, they are the best way so far devised.

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


The Road to Race and Implicit Bias Eradication

Desmond_Kennethby Hon. Kenneth V. Desmond, Jr.

Voice of the Judiciary

Throughout the past several decades, State and Federal appellate courts have candidly acknowledged the implicit biases of litigants and jurors.  Although social science research has found that judges are just as susceptible to unconscious bias as the rest of the population, the paucity of case law acknowledging judicial bias underscores the need for introspection.  Since confronting subconscious attitudes and stereotypes is challenging for many, the process of eradicating the influence of race and implicit bias on the Massachusetts judicial system is likely to take many years.  Chinese philosopher Lao-Tzu said “the journey of a thousand miles begins with one step.”  With that in mind, the Trial Court recently took the first step of its “thousand mile journey” to eliminate the influence of implicit bias by establishing the Departmental Race and Implicit Bias Advisory Committee.

The Committee was formed in response to feedback from attendees of the September 2015 All Court Conference on Race and Implicit Bias.  According to Chief Justice Ralph Gants, the decision to hold the All Court Conference was prompted by recent events in Ferguson, New York, Baltimore, and Cleveland that “raised important questions about the intersection of race and justice in our country.”  The Supreme Judicial Court recognized the value of examining the court’s role in “addressing race as it affects the pursuit of justice,” and “resolved to open a dialogue among Massachusetts judges” to consider the way implicit bias impacts the Commonwealth’s courts.  The subsequent formation of the Committee was a way for the Trial Court to continue that dialogue at the departmental level.

In the most basic sense, implicit bias is “thoughts about other people you didn’t know you had.”  Consequently, it is often difficult for individuals who do not fall victim to the impact of certain biases to identify the ways they are manifested.  Within the Trial Court, however, implicit racial, cultural, gender and other biases have opportunities to exhibit themselves in myriad ways.

Implicit racial bias, for example, can manifest in the form of erroneous assumptions that a person of color is not a judge, attorney, or officer of the court.  Implicit racial bias may also explain the disparity between the number of non-Hispanic whites and persons of color given the opportunity to participate in Drug Court, which offers offenders an opportunity for rehabilitation instead of incarceration.  Indeed, while non-Hispanic whites in Massachusetts use illicit substances at slightly higher rates than members of racial and ethnic minorities, incarceration rates for distribution offenses that do not carry mandatory minimum sentences are six times higher for persons who identify as black.  Juveniles are not exempt from the subconscious biases that fuel these trends.  Of all the youths arrested for weapons offenses in 2010, white youths were arrested at approximately double the rate of black youths.  However, of all the youths that were held in custody for weapons offenses, black youths comprised 52% while white youths represented a mere 16%.

Implicit cultural biases can lead Trial Court staff members to erroneous conclusions about a constituent’s demeanor.  A judge or clerk interpreting a lack of eye contact as representative of disinterest may be less patient with a litigant who avoids eye contact than a judge or clerk who knows that in many cultures, eye contact is a sign of disrespect.  Implicit gender biases have the potential to impact the outcome of familial disputes, such as the distribution of assets in a divorce or the likelihood of a male obtaining a protective order from an abusive partner as compared to the chances of a female requesting one on the same basis.  One study found that 65% of transgender Massachusetts residents had experienced discrimination in an area of public accommodation.  Discriminatory, or even preferential treatment may also arise from implicit biases concerning sexual preference, age, weight, disability, and religion, among others.

By way of the Committee, the Trial Court seeks to create a system that embraces and understands all people regardless of their identity.  The Committee is comprised of Chief Justice Paula Carey and Court Administrator Harry Spence as well as one or more individuals (mostly judges) from each Trial Court Department who have been appointed by their respective chief justices.  Committee members are charged with initiating a dialogue about implicit bias within their department and encouraging others to get involved with the effort to help all Trial Court staff members recognize that an egalitarian judicial system is the only way to build and promote public confidence and trust that the Trial Court will administer justice impartially to everyone that it serves.

The Committee recognizes that the implicit associations we hold “do not necessarily align with our declared beliefs,” and seeks to implement checks and balances that give Trial court staff members pause before they make a decision.  Already, the Committee has created bench cards to be distributed all Trial Court justices and clerks that encourage them to engage in “more deliberative, effortful processing” when making a decision, and thereby discourage low-effort decision-making that relies on intuition informed by stereotypes or prejudice.

The Committee also understands that exposure to stigmatized group members “can help individuals negate stereotypes . . . and ‘unlearn’ the associations that underlie implicit bias.”  Accordingly, the Committee intends to identify and encourage the use of diverse recruiting resources, and advance staff members’ cultural awareness through workshops and other forms of training.  This fall, the Committee plans to introduce a resource bank on the Trial Court’s intranet to ensure that the materials distributed at these trainings are accessible to all.  To create a judicial system that is user-friendly for everyone, the Committee also plans to assess the experiences of Trial Court users through surveys and focus groups, and is considering the implementation of educational opportunities for pro se litigants who are struggling to comply with their legal obligations.

If you are interested in assessing your own implicit biases, Harvard University’s Project Implicit has free online tests available that allow you to assess subconscious preferences based on race, gender, and sexuality, among others.

Chief Justice Paula Carey recognizes that “issues related to race, bias and power are among the most difficult to confront, discuss and address since they are embedded in an organization’s structures and practices, they are often invisible to many, and they prompt defensive reactions.”  She believes that taking these issues on will be “a challenging journey but well worth the effort.”

Judge Kenneth V. Desmond, Jr. has served on the Massachusetts Judiciary for eleven years. He was appointed to the Massachusetts Superior Court in December 2012 and prior to that served on the Boston Municipal Court. He is a Trustee of the Flaschner Judicial Institute and Chair of the Trial Court’s Departmental Race and Implicit Bias Advisory Committee. Judge Desmond is a graduate of Tufts University and Boston College Law School.