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 JusticePosted: October 25, 2016
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.
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 (email@example.com). 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 (firstname.lastname@example.org ) 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 (email@example.com). 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.
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.
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.
Voice of the Judiciary
Trial lawyers and I have not always seen eye-to-eye on the purposes or methods of juror voir dire. As a trial judge, I view the overarching objective of juror voir dire as the selection of an impartial jury, with a corollary need to make sure peremptory challenges are exercised constitutionally. Many trial attorneys admit freely that they are interested in as partial a jury as possible, with the subsidiary goal of learning as much as possible about the selected jurors so that they might later tailor arguments and present their case more persuasively.
With the advent last year of attorney-conducted voir dire in Massachusetts, we now have an array of mechanisms for conducting voir dire of prospective jurors: (1) traditional, judge-controlled questioning of prospective jurors; (2) attorney-conducted voir of individual jurors (each examined one at a time by the attorney or self-represented party at sidebar or in the absence of the rest of the venire); or (3) panel voir dire (the questioning by counsel or pro se litigant of jurors as a group). There has been much recent discussion within the Superior Court and the bar about which of these methods, alone or in combination, is more effective generally or in a particular case.
I am here to say that, whatever your goals in selecting a jury and whatever mechanism you select, if you want “to learn whether [a juror] . . . has . . . formed an opinion . . . or is sensible of any bias or prejudice,” G. L. c. 234, § 28, it is the phrasing of the voir dire questions themselves that matters most. The simple truth is that questions do more than solicit information; “[q]uestions put words in answerers’ mouths.” Kellerman, Kathy, “Persuasive Question-Asking: How Question Wording Influences Answers” (2007). The slightest differences in a question’s form, phrasing, terminology, and presumptions can alter the answer the prospective juror gives. Id. If a universal aim of jury selection is to elicit truly honest answers from prospective jurors, then we trial judges and lawyers alike should be mindful of and seek out training on the type of questions that could best accomplish this shared goal.
Questions shape answers in many ways. A “suggestive question,” for example, is one that implies that a certain answer should be given in response, Copeland, James M., “Cross Examination in Extemp,” National Forensic League (2010), or includes an assumption as accepted fact, Loftus, Elizabeth F., “Eyewitness Testimony,” Harvard University Press, Cambridge, MA (1996). Asking, “Don’t you think this was wrong?,” subtly influences the respondent into answering in the affirmative, whereas a one-word variant of that question, “Do you think this was wrong?,” does not. “Repeated questions” may make interviewees think that their first answer was wrong, leading them to change their answer. See Lyon, Thomas D., “Questioning Children: The Effects of Suggestive and Repeated Questioning,” Electronic Publishing, Inc. (1999). A “forced-choice question,” e.g., “Is this yellow or green?,” forces people to choose between two options when neither choice may be true or might need more explanation. See Peterson, Carole, & Grant, Melody, “Forced Choice: Are Forensic Interviewers Asking the Right Questions?,” Canadian Journal of Behavioural Science (2001).
“Confirmatory questioning” during voir dire can be particularly risky. Confirmatory questions are those posed to support a preexisting perception. For example, if a questioner assumes a hypothesis about a respondent, such as being extroverted, he/she may slant the questions to confirm that hypothesis, e.g., “What would you do if you wanted to liven up a party?” or, “In what situations are you most talkative?” Snyder, M., & Swann, W. B., “Hypothesis Testing Processes in Social Interaction,” Journal of Personality and Social Psychology (1978). Conversely, if the interviewer wanted to make the interviewee look introverted, he/she would ask questions like, “Have you ever been left out of a social group?” or, “In what situations do you wish you could be more outgoing?” Id. In both instances, the questioner simply finds what he/she expects to find. Such an intentional or unintentional strategy can produce non-representative answers that are shaped by the questions asked. See Swann, W. B., Guiliano, T., & Wegner, D. M., “Where Leading Questions Can Lead: The Power of Conjecture in Social Interaction,” Journal of Personality and Social Psychology (1982).
Moreover, many people have a tendency to say what they believe is acceptable or appropriate. This is the so-called “social desirability bias.” Fisher, R. J., “Social Desirability Bias and the Validity of Indirect Questioning,” Journal of Consumer Research: 20, 303-315 (1993). Whether questioning jurors individually or in a group, there is a great danger that venirepersons will tell the judge, attorney, or litigant what he/she wants to hear. In addition, prospective jurors who experience difficulty discerning “desired” answers may choose not to answer at all. Marshall, L. L., & Smith, A., “The Effects of Demand Characteristics, Evaluation Anxiety, and Expectancy on Juror Honesty During Voir Dire,” The Journal of Psychology (1986).
Several states, including Texas, North Carolina, and Maryland, have adopted rules prohibiting improper “commitment” (or “stake-out” or “precommitment”) questions in juror voir dire, see, e.g., Standefer v. State, 59 S.W.3d 177, 183 (Tex. Crim. App. 2001); Hyundai Motor Company v. Vasquez, 189 S.W.3d 743, 756 (Tex. 2006); State v. Parks, 324 N. C. 420, 423 (1989); Stewart v. State, 399 Md. 146, 162 (2007); some other federal and state jurisdictions have addressed the issue in the context of “death-qualifying” juror voir dire in capital cases, see Morgan v. Illinois, 504 U.S. 719, 735-736 (1992); U.S. v. Tsarnaev, U.S. District Court No. 13-CR-10200-GAO (Dist. Mass. 2014). A commitment question is one that “commit[s] a prospective juror to resolve, or to refrain from resolving, an issue a certain way after learning a particular fact.” Standefer, 59 S.W.3d at 179. “[A]n improper commitment question seeks to create a bias or prejudice in the panelists before they have heard the evidence.” Rodriguez-Flores v. State, 351 S.W.3d 612, 621 (Tex. App. 2012). An example of an improper commitment question (asked by the prosecutor in a drug case) would be the following: “If the evidence, in a hypothetical case, showed that a person was arrested and he/she had in his/her pocket a crack pipe with residue in it, is there anyone who could not convict a person based on that?” Standefer, 59 S.W.3d at 179. This question asks the jurors whether they would resolve a person’s guilt based on his/her possession of a residue amount of cocaine in a crack pipe. Id. By contrast, the question, “If the alleged victim is a nun, could you be fair and impartial?,” is not an improper commitment question because it does not ask the panelist to resolve any issue in the case based on the fact that the victim is a nun, only to commit to what the law requires, i.e., being fair and impartial. Id. at 180, 181.
Not all case-specific questions are inappropriate, of course. “[T]he proper tests for whether a question is a ‘stake-out’ question are the following: (1) Does the question ask a juror to speculate or precommit to how that juror might vote based on any particular facts? or (2) Does it seek to discover in advance what a prospective juror’s decision will be under a certain state of the evidence? or (3) Does it seek to cause prospective jurors to pledge themselves to a future course of action and indoctrinate them regarding potential issues before the evidence has been presented and they have been instructed on the law?” U. S. v. Johnson, 366 F. Supp.2d 822, 845 (N.D. Iowa 2005). The line between a proper and an improper commitment question is not always a bright one.
This discussion of framing voir dire questions only scratches the surface. I am concerned that trial judges and attorneys are not well informed about or skilled at asking questions during juror voir dire. I strongly urge the courts and the bar to develop training programs on the topic of questioning prospective jurors. By learning to keep our words out of the jurors’ mouths, we can achieve a more effective, trustworthy way of choosing a jury.
Judge Linda Giles has served as an Associate Justice of the Superior Court since 1998. She is an adjunct professor of law at Suffolk University Law School and a member of the Board of Editors of the Boston Bar Journal. Judge Giles is a graduate of McGill University and New England School of Law.
Voice of the Judiciary
As the most newly-minted judge in the Federal District of Massachusetts, I have been asked to reflect on my experience through the selection process while it is still relatively fresh in my mind. At least in this district, in my round (and as I learned at baby judge school, there is a wide variety between districts), the two Massachusetts senators formed a selection committee, headed by Judge Nancy Gertner (ret). The committee solicited applications. The application itself was long and detailed. It collected a lot of information which I am sure was helpful to the committee, but also required me to dig up long forgotten personal information (like addresses, phone numbers and jobs) going back to when I was 18 years old. Harder than it sounds. This likely served the dual purpose of providing information, but also sorting out who was truly committed to the process. The names of the approximately 12 committee members and the application itself were publicly available.
The front end of the process moved very quickly. Once the application deadline had passed (late January, 2014), I was asked to interview with the committee (approximately February). The interview questions were as wide ranging and diverse as the interests of the committee members and included topics such as temperament, role of a judge, reasons for wanting to be a judge, substantive legal questions, experience with various sorts of cases, views on discovery and professional and personal background. The next step was an interview with the two senators (approximately March). In my case, they interviewed me together, but I am not sure that is always the case. At some point thereafter (approximately April), I was notified that my name was being forwarded to the White House. This was the single most exciting moment of the process and one that I will always remember. I was in the lobby of a hotel, on vacation with my family, when my cell phone rang. I didn’t recognize the number and let it go to voice mail. It turned out to be Senator Warren herself, asking that I return the call. Needless to say, I returned the call very promptly. I have kept that voice mail – truly one of those calls you don’t really ever expect and certainly don’t forget.
After that, my primary contact with the process was through the Justice Department Office of Legal Policy rather than the Senators. My application, resume, background and professional qualifications were vetted by the FBI – which I know only because of the number of calls I got from people who had been contacted. There was an interview in the Old Executive Office Building that included White House Counsel staff and people from the Department of Justice, among others (but not the President). During this same time frame, I was also vetted by the ABA which traditionally has been given the opportunity to review candidates prior to their nomination and to share with the White House its opinion of an applicant’s qualifications. The vetting process is an odd thing to experience, in part because it can be awkward to interact with people that you realize are likely being interviewed about you. It’s also disquieting to know that you are being judged by committees of people whom you have never met and who don’t know you. At various points, I had the chance to respond generally to things that were said about me and my qualifications. On the one hand, some people are very generous in their assessment of others. That being said, there were also comments that seemed unfounded, but that were, in some instances, hard to defend against. It was also humbling and somewhat surprising to realize that strong endorsements could come from unexpected constituencies, but that the opposite was also true.
In approximately May, I was informed by the Office of the Legal Policy that the President was going to nominate me. Surprisingly, this moment was much less climactic than learning that my name was going to be forwarded to the President – largely because it was the culmination of a process that I knew was going on, rather than a surprise call. I was formally nominated on July 31, 2014. On September 17, I had my confirmation hearing which involved the Senate Judiciary Committee questioning a panel that consisted of me and 3 other nominees from other districts (3 Article III judges and 1 Article II judge). The hearing was not attended by all of the committee members and was shorter than I anticipated. The questioning was done by one Senator from each party. The Senators who attended and the ones that did not then had the opportunity to follow up the hearing with written questions. These were quite substantive and covered topics such as the death penalty, my view of precedent, appropriate judicial temperament, gay marriage, equal protection and the reach of the Commerce Clause.
On November 20, I was voted out of committee (which I learned from the Senate Judiciary website). This meant that my nomination could proceed to the Senate floor for a vote. I was given very little information about when the floor vote might happen, if at all. In my case, the votes for the group of judicial and other presidential nominees in which I was included took place on December 16, 2014, right before the Senate recessed for the year, and in literally the last series of votes before the recess. This was fortuitous given the less hospitable make-up of the new Senate for presidential nominees; I was aware that it was at least possible that my nomination might never be brought forward for a vote if it did not occur before the recess. I did not know the vote was going to happen beforehand, but I did know it was likely the last night of the session. I was able to watch the vote only because I had the television set turned on to CSPAN. Hearing my name called for a Senate vote was one of the other very big thrills of the process.
Once a nomination is voted on by the Senate, the President has to sign your commission which generally takes no more than a couple of days. At that point you are IN! I took a few weeks to wind up my practice. I was officially sworn in January 2015 (almost exactly a year after I submitted my application) and then had a more public ceremonial swearing in July – oddly enough a year to the day from my nomination.
Although that largely sums up my active participation in my nomination and confirmation, I am sure there were many machinations behind the scenes – not about me exactly, but more about the challenges of getting a large group of pending nominations (not just judicial) through the Senate as quickly and efficiently as possible. I appreciated and was repeatedly impressed throughout the process with how generously and selflessly various people worked to make sure that my nomination and confirmation continued to move forward, and I remain grateful for their encouragement and support.
Now that I am on the bench, I continue to feel very honored and lucky to have this job. I spend a lot of time thinking about how to do it right – in terms of correctly applying law to facts, but also in making sure that I treat litigants and their lawyers with respect and in trying to ensure that people, win or lose, feel like they were heard and their views fairly considered. A few other random thoughts:
I think about I Love Lucy, even if fleetingly, almost every day. This job is so much like the bon bons on the conveyor belt episode. The paper just keeps coming. For those of you (like my law clerk) too young to understand what I just said – find the episode. It’s a classic.
As a judge, I have repeatedly offered young associates in court the opportunity to make a brief argument on a motion once the lead attorneys have finished their presentations. Not once has anyone taken me up on this offer. I suspect that is because the young attorneys are wary of partner or client response. I will keep making the offer and hope that litigants will see it as an opportunity to make their points one more time, rather than as a potential pitfall for the young and unwary. Just as I would like to see more young lawyers with speaking roles, I have also been struck by the relative paucity of female litigators and would similarly like to see more women in court.
I am aware that the women on the bench, particularly the few of us with younger children, are, to some extent, role models for other women and that we may have a unique perspective on some of the challenges facing women in the legal profession. I have been experimenting with a 10-4 trial day instead of the more usual 9-1, thinking that this might benefit parents who do school drop off, as well as resulting in fewer trial days for the jurors. I am also finding that as a judge, rather than a partner in a law firm with client and practice development responsibilities, I have much better control of my schedule (except for those times when I have no control over it at all). As a result, I am more likely to make it home for dinner with my family. That being said, the volume of work is huge and unrelenting and I almost always work for several more hour later in the evening.
Finally, for those who have asked, yes, some people treat me differently. Most people treat me the same, which I appreciate. That being said, the job has required me to give significant thought to personal relationships. All of the other judges have been incredibly welcoming and generous with their time and advice, but there is the adjustment of thinking of them as peers and the resulting reordering of my prior relationships with many of them. Similarly, many legal conflicts are easily identified and resolved, but determinations about the appearance of unfairness based on personal and past professional interactions can be much more nuanced. I believe that a judge should remain a part of the legal community, but there are challenges in maintaining those connections without compromising confidence in the fairness of the process. I pay a great deal of attention to this obligation, and am becoming more comfortable with the balancing as time goes on.
Judge Burroughs was sworn in as a United States District Court Judge for the District of Massachusetts in January 2015. Prior to joining the bench, she was a partner in the Boston law firm of Nutter McClennen & Fish. Before entering private practice, she served for sixteen years as an Assistant United States Attorney in Boston and Philadelphia.