Massachusetts Appellate Courts Must Do More To Protect Young Black People from Unreasonable Police IntrusionPosted: November 3, 2021
by Eva Jellison
No Massachusetts case has explicitly incorporated the combined effects of the race and age of a juvenile in its legal analysis. There are some cases that recognize the impact of a defendant’s youth and others that recognize the effects of societal racism. See, e.g., Commonwealth v. Perez, 480 Mass. 562 (2018) (non-homicide youth sentencing); Commonwealth v. Warren, 475 Mass. 530 (2016) (inference to be drawn from the flight of a Black man from police in an urban area). But there is undoubtedly something lost in not recognizing that youth and race can combine in a manner not adequately addressed by separate analyses. Recently, in Commonwealth v. Evelyn, 485 Mass. 691 (2020), the SJC missed an opportunity to incorporate this compound effect into its Article 14 search and seizure jurisprudence.
Article 14 of the Massachusetts declaration of rights provides protection against unreasonable search and seizure: “Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions.” The SJC has repeatedly interpreted Article 14 to be more protective than the analogous Fourth Amendment to the U.S. Constitution. See, e.g., Evelyn, 485 Mass. at 697; Commonwealth v. Stoute, 422 Mass. 782 (1996) (point of seizure). Seizure occurs when a reasonable person would believe that she is not free to leave a police interaction. Evelyn, 485 Mass. 696. The police may only legally seize someone whom they have reasonable suspicion to believe has committed, is committing, or is about to commit a crime. Id. at 704.
In Evelyn, the SJC declined to incorporate the combination of race and youth into its Article 14 jurisprudence, despite extending its recognition of the relevance of race and youth separately. Tykorie Evelyn was a seventeen-year-old boy at the time he was seized and pat frisked by Boston police officers. He was about a half mile away from a shooting that had occurred thirteen minutes earlier, he refused to engage with officers, and he made three movements that the officers identified as consistent with gun possession. Id. at 694–95. He made two arguments that relied on the combination of his youth and race: (1) that consideration of whether someone would feel free to leave must take into account the combination of the defendant’s age and race, and (2) that turning away from officers (labelled “blading”) should have been viewed as a nervous behavior informed by Tykorie’s race and youth, rather than relied upon as a characteristic of an armed gunman. An amicus curiae brief submitted by the Charles Hamilton Houston Institute for Race & Justice of Harvard Law School and the NAACP Legal Defense & Education Fund also alerted the Court to these issues.
As to Tykorie’s first argument, the SJC incorporated youth, drawing from J.D.B. v. North Carolina, 564 U.S. 261 (2011), which held that youth was relevant to the custody analysis under Miranda v. Arizona, 384 U.S. 436 (1966). The SJC noted that J.D.B. addressed an inquiry similar to the point-of-seizure analysis: whether “an individual has been compelled to interact with the police.” Evelyn, 485 Mass. at 698.
But the SJC declined to allow Tykorie’s blackness to add to the analysis. Id. at 700. More specifically, the SJC “agree[d] that the troubling past and present of policing and race are likely to inform how African-Americans and members of other racial minorities interpret police encounters.” Id. at 701. But the Court concluded that including race in the seizure analysis intruded upon the ability to “maintain an objective standard so that officers can determine in advance whether the conduct contemplated will implicate the Fourth Amendment or art. 14.” Id. at 702. In so doing, the SJC “attempt[ed] to focus attention on the issue of race, while not establishing bright-line rules that potentially could do more harm than good.” Id. at 703. It appears that the harm the SJC sought to avoid was imputing a particular set of life experiences and beliefs formed from those experiences to an individual with a different set of experiences and beliefs. Id. at 702–03, quoting United States v. Easley, 911 F.3d 1074, 1081–82 (10th Cir. 2018) (noting that members of racial categories do not all share the same experiences and beliefs).
This reasoning is unsatisfying. First, it appears to conflict with the Court’s prior reasoning in Warren, which it extended in Evelyn. In Warren, the SJC held, without any invocation of federal law, that any type of “nervous or evasive behavior” by a Black person in an urban area must be “significantly discount[ed].” Evelyn, 485 Mass. at 709. This is because “a long history of race-based policing likely will remain imprinted on the group and individual consciousness of African-Americans for the foreseeable future.” Id. at 708. Rather than looking to the Fourth Amendment seizure analysis to decide whether to incorporate race into the Article 14 seizure analysis, it would have been more consistent for the SJC to apply the analysis of race that it had previously adopted in Warren and maintained in Evelyn.
Second, by adopting age as a factor, but not race, the SJC missed an opportunity to “ensure that the justice provided to African-Americans is the same that is provided to white Americans.” Ralph D. Gants, et al., Letter from the Seven Justices of the Supreme Judicial Court (June 3, 2020). Primarily,
[e]xperience suggests that a child’s race would have as much impact on a child’s perception of whether he was free to leave as would his age. Throughout American history, blacks have had a tenuous relationship with police. In every critical era—slavery, Jim Crow, lynching, and the contemporary era of mass incarceration—blacks have perceived police to be proponents of discrimination and subordination through violence and intimidation. Today, it is difficult to imagine any black person who is immune from the persistent national coverage of police-on-black killings.
Kristin Henning, THE REASONABLE BLACK CHILD: RACE, ADOLESCENCE, AND THE FOURTH AMENDMENT, 67 Am. Univ. L. Rev. 1513, 1530 (2018). And, because of this history, “Black families have long been proactive in transmitting norms on dealing with the police to their children.” Id. at 1531. Further, children, and specifically Black children, are policed both in their schools and on their streets. Id. “These experiences, combined with developmental features of adolescence, leave black youth particularly vulnerable to the psychological pressures of police presence. As such, black youth are even less likely than other youth and adults to believe they are free to leave and decline police contact.” Id. at 1532–33.
Indeed, Black and brown children live in a different Massachusetts than white children. Data provided to CPCS by the Department of Youth Services indicated that, as of April 23, 2021, eighty-two percent of the children detained, confined, or committed did not identify as white. In the last ten years, Boston Police Department data indicate disproportionate stops of Black men, Evelyn, 485 Mass. at 700 n. 6 & 7, a trend which continued even during the unprecedented COVID-19 pandemic during which 30% fewer stops occurred than the previous year. Tori Bedford, While Boston Police Street Stops Decrease, Black People Are Still Stopped The Most, GBH News (April 18, 2021). A recent report about the City of New Bedford revealed that “[p]olice are clearly targeting young Black males[.]” We are the Prey; Racial Profiling and Policing of Youth in New Bedford, Citizens for Juvenile Justice (April 2021). Further, “[i]n Massachusetts, black female students are roughly 3.9 times more likely to be disciplined than their white counterparts.” Protecting Girls of Color from the School-To-Prison Pipeline, Appleseed Network (2019) (analyzing data from the 2015-16 school year). And the data from the 2018-19 school year evinces racial disparity in school discipline across communities with large populations of Black and brown children. These data indicate that race should be broadly considered in criminal law analyses.
Further, ignoring race but accepting age as relevant to the seizure analysis will only exacerbate the racial disparities in the juvenile system. People, including police officers, see Black children as older than they actually are. Phillip Atiba Goff, et al., The Essence of Innocence: Consequences of Dehumanizing Black Children, 106(4) Journal of Personality and Social Psychology 526, 532 (2014) (4.53 years older for Black boys suspected of felonies). This can mean that, unlike children of different races, Black children would lose the protection afforded by Evelyn well before they become adults and well before their white counterparts, perhaps as young as 13 or 14. Id. Evelyn is only helpful in reflecting young people’s developmental status when officers know or should know that these children are under the age of eighteen. Evelyn, 485 Mass. at 700 (not considering Tykorie’s age because he was six feet tall and his features were obscured by clothing and darkness).
The SJC’s rejection of Tykorie’s second argument was implicit. Nowhere in its “Evidence of a Firearm” section does the SJC mention the word race. Evelyn, 485 Mass. at 705–08. But the opportunity was there. At oral argument, Justice Kafker queried whether the police would have been able to stop a 75-year-old man, or a 75-year-old woman in the same circumstances. Implicit in Justice Kafker’s question is the idea that older people and women are less likely to be involved in crime, or at least less likely to be in possession of a firearm, and that assigning criminality to a seemingly innocent act might therefore be unreasonable as applied to an old man or woman.
Justice Kafker was on to something – but as applied to race in addition to age and gender. Social psychologists have observed that Black boys are perceived as less innocent than their white and Latino counterparts. See generally Atiba Goff, supra. Thus, when an officer sees the actions of a Black boy (or someone he perceives to be a Black boy), the officer could be seeing criminality simply because the boy is young and Black. This is especially important in the reasonable suspicion analysis, because officers frequently testify that things that a white woman in her thirties does all the time – clutching an object in her pocket on a cold day, adjusting her pants, or checking to see if her cellphone, which may be too big to fit in her pocket, is securely in her waistband – are an indication of firearm possession.
“[S]urely a stop based on race is an unreasonable seizure under art. 14,” Commonwealth v. Long, 485 Mass. 711, 754 (2020) (Budd, J., concurring), and the SJC is right to be concerned about how to apply an objective standard. It is very difficult to assess how an officer’s implicit (or explicit) bias may have operated in any given situation. But that does not mean that the appellate courts cannot or should not help to ensure that Black children are not stopped, grabbed, and harmed because of that bias. Warren and Evelyn provide a helpful framework for incorporating societal realities about race into legal analysis.
Additional solutions also exist. A recent dissent by Justice Milkey suggested that courts could increase the burden on the Commonwealth and police officers to demonstrate that the conclusions from their observations have robust non-race-based underpinnings. Commonwealth v. Karen K., 99 Mass. App. Ct. 216, 233 n.16 (2021) (Milkey, J., dissenting). For example, the Commonwealth could provide evidence of training based on scientific methodology, and not the mere recitation of talismanic words. Or the Commonwealth could provide an “empirical basis for judging the accuracy of [the officer’s] predictive abilities,” such as information about the percentage of persons stopped on suspicion of firearm possession who actually possessed a firearm. Id.
The SJC may have missed an opportunity in Evelyn, but the door remains open to move away from analyses that disproportionately burden Black children and strive toward more equal justice.
This article is dedicated to the late Chief Justice Ralph Gants for teaching Attorney Jellison to seek justice and treat people well.
Eva Jellison (she/her) is a criminal defense attorney and partner at Wood & Nathanson, LLP. She primarily represents adults and juveniles in appellate, post-conviction and post-adjudication matters.
by Ralph D. Gants, former Chief Justice of the Supreme Judicial Court, and Paula M. Carey, Chief Justice of the Trial Court
Voice of the Judiciary
View and share the pdf version of the article here.
Our beloved colleague and friend Ralph Gants was passionately committed to the ideal of providing equal justice for all and, in pursuit of that goal, as Chief Justice he worked tirelessly and persistently to eradicate racial and ethnic inequities from our legal system. His dedication to this cause is evident in the following essay and the circumstances surrounding it. In response to the call in our June 3, 2020 letter to members of the judiciary and the bar to “look afresh at what we are doing, or failing to do” to address bias and inequality, Chief Justice Gants undertook this essay with Trial Court Chief Justice Paula Carey to review what the Massachusetts courts have done, and to consider what more we must do, to tackle these problems. Despite his heart attack and subsequent surgery, he returned to revising this essay on the morning of September 14, 2020, shortly before his death. It was his last act on behalf of the people of Massachusetts. The text published here is the version that he was working on at that time, and it incorporates his last revisions, with minor additional edits for accuracy and completeness.
– the Justices of the Massachusetts Supreme Judicial Court
In a recent letter to members of the Massachusetts judiciary and the bar, the justices of the Supreme Judicial Court called for a far-reaching reexamination of our legal system to address the chronic problem of racial inequity:
“[W]e must look afresh at what we are doing, or failing to do, to root out any conscious and unconscious bias in our courtrooms; to ensure that the justice provided to African-Americans is the same that is provided to white Americans; to create in our courtrooms, our corner of the world, a place where all are truly equal. . . . [W]e must also look at what we are doing, or failing to do, to provide legal assistance to those who cannot afford it; [and] to diminish the economic and environmental inequalities arising from race. . . . [W]e need to reexamine why, too often, our criminal justice system fails to treat African-Americans the same as white Americans, and recommit ourselves to the systemic change needed to make equality under the law an enduring reality for all. This must be a time not just of reflection but of action.”
This is a journey with renewed urgency, a need to travel faster and farther toward the imperative of true equality for all persons of color, but it is important to recognize that this is a journey we began many years ago, and that we are far from where we need to be. So we look back at our successes and our failures for guidance as we look ahead. As Maya Angelou once said, “If you don’t know where you’ve come from, you don’t know where you’re going.”
More than 25 years ago, the SJC issued a 200-page report on racial and ethnic bias in the Massachusetts court system. It concluded that discriminatory behavior based on racial bias or stereotypes existed throughout the courts, and recommended, among other improvements, unification and standardization of interpreter services; making court forms more widely available in translation; ensuring that minorities are fairly represented in jury pools; studying sentencing patterns to determine whether there is any disparity related to race or ethnic bias; mandating diversity and cultural sensitivity training for all court employees; establishing a rule governing fee-generating appointments to improve access to opportunities for minority attorneys; and taking steps to increase hiring and appointment of minority candidates in the court system. Since that time, our court system has made substantial progress toward many of those goals, thanks in large part to the efforts and examples of many trailblazing court leaders of color, such as former SJC Chief Justice Roderick Ireland. And yet we must also acknowledge with humility that many of these recommendations still remain relevant today, and that much remains to be done to fulfill them.
In this article, we will endeavor to describe where we in the courts have come in the past five years in attempting to address racial bias, and where we intend to go in the immediate future. In describing our path forward, we recognize that we do not have all the answers, and we emphasize that we remain open to new ideas and to all points of view, particularly from our colleagues of color; our path is not written in stone. We intend to listen, to learn from our mistakes, and to adapt to changing circumstances on this journey.
Eliminating racial and ethnic disparities in our criminal justice system. Over the last decade, numerous studies have documented how racial disparities and high rates of incarceration in our nation’s criminal justice system have had a devastating impact on communities of color. Massachusetts has one of the lowest overall incarceration rates in the nation. But, as Chief Justice Gants pointed out in his 2016 State of the Judiciary speech, Massachusetts has some of the highest rates of disparity: as a nation, in 2014, the rate of imprisonment for African-Americans was 5.8 times greater than for Whites; in Massachusetts, it was nearly eight times greater. As a nation, in 2014, the rate of imprisonment for Hispanics was 1.3 times greater than for Whites; in Massachusetts, it was nearly five times greater. In that speech, he announced that he had asked Harvard Law School to convene a team of independent researchers to analyze the data and “find out why.”
The results of that study, after four long years of research and review, have recently been released. Based on the data available from 2014-2016, the Harvard study concludes that “Black and Latinx people sentenced to incarceration receive longer sentences than their White counterparts, with Black people receiving sentences that are an average of 168 days longer and Latinx people receiving sentences that are an average of 148 days longer.” Even after accounting for factors such as criminal history and demographics, charge severity, court jurisdiction, and neighborhood characteristics, “Black and Latinx people are still sentenced to 31 and 25 days longer than their similarly situated White counterparts.” This disparity is unacceptable; the length of a defendant’s sentence should not differ due to the color of a defendant’s skin or to a defendant’s national origin.
According to the Harvard study, the disparity in the length of sentences for Black and Latinx defendants is primarily explained by differences in initial charge severity. “[T]he evidence is most consistent with Black and Latinx defendants receiving more severe initial charges than White defendants for similar conduct.” “Black and Latinx defendants tend to face more serious initial charges that are more likely to carry a mandatory or statutory minimum sentence,” even though “Black and Latinx defendants in Superior Court are convicted of offenses roughly equal in seriousness to their White counterparts” and “Black defendants in particular who are sentenced to incarceration [in state prison] are convicted of less severe crimes on average than White defendants despite facing more serious initial charges.” The Harvard researchers conclude that “racially disparate initial charging practices lead to weaker initial positions in the plea bargaining process for Black defendants, which then translate into longer incarceration sentences for similar offenses.” The impact of this disparity is particularly significant for drug and weapons charges, which carry significant mandatory minimum sentences.
In short, prosecutors are more likely to charge Black and Latinx defendants with offenses that carry a mandatory minimum sentence, and use the threat of a lengthy mandatory minimum sentence to induce a defendant to plead to a lesser offense and agree to the prosecutor’s recommended sentence, which is less than the mandatory minimum sentence but still severe. A defendant who is charged with an offense with no mandatory minimum sentence can argue to the judge that the prosecutor’s sentencing recommendation is too harsh; a defendant who pleads to avoid a mandatory minimum sentence usually needs to agree to the prosecutor’s recommendation as the price for the prosecutor dismissing the offense with the mandatory minimum sentence.
The good news is that the Legislature can greatly diminish the racial disparity in the length of sentences simply by abolishing mandatory minimum sentences in firearm and drug cases, and for those with prior firearm and drug convictions or juvenile adjudications. The criminal justice reform legislation enacted in 2018 eliminated mandatory minimums for certain drug offenses, but many remain, and it did not touch mandatory minimum sentences in firearms cases. Abolishing these remaining mandatory minimums would allow judges in these cases to determine the appropriate length of a sentence based on an individualized evaluation of the circumstances of the crime and of the offender in accordance with the best practices we have established, which they cannot do when the sentence is determined by a statutory mandatory minimum.
The bad news is that, where prosecutors use the leverage they can gain from mandatory minimum sentences by agreeing to dismiss those charges only in return for an agreed-upon sentence, there is little that a judge can do other than accept that recommendation; rejecting the agreement would force the defendant to trial, where he or she would face a longer mandatory minimum sentence if convicted.
In cases where judges are free to exercise their discretion in determining an appropriate sentence upon conviction, we have taken steps to ensure that each sentence is appropriately tailored to the circumstances of the offense and the individual defendant. In 2014, we asked our criminal courts – the Superior Court, the District Court, the Boston Municipal Court, and the Juvenile Court – to convene working groups to develop sentencing best practices to guide our judges. These guidelines emphasized the importance of individualized, evidence-based sentences, taking into account the nature of the offense and the unique circumstances of each particular defendant. For example, the Superior Court’s report on best practices recognized that “[s]entencing practices over the last quarter century have led to a dramatic increase in incarceration without reducing recidivism.” It stated that imprisonment is certainly necessary and appropriate in cases involving serious crimes, but incarceration may be counterproductive if imposed for low-level offenses: “Studies show that, rather than reducing crime, subjecting low-level offenders to periods of incarceration may actually lead to an increase in crime based on the prisoner’s adoption of criminogenic attitudes and values while incarcerated, and based on the legal barriers and social stigma encountered after release.” The guidelines also highlighted the importance of setting individually tailored conditions of probation that consider the risk-levels and needs of each probationer.
Although the discretion of judges is limited where the Legislature has imposed mandatory minimum sentences, we will be reconvening our working groups on sentencing best practices to focus specifically on preventing any disparities that might arise from a defendant’s race, ethnicity, and class. We will take a fresh look at these sentencing best practices through the lens of race, ethnicity, and class.
We will also look at our bail practices with this same lens. Although bail was not the focus of the Harvard report, it noted that bail is set in a slightly higher percentage of cases involving Black and Latinx defendants as compared to White defendants, and that Black and Latinx defendants are slightly more likely than White defendants to be unable to pay bail for the duration of the case, thus increasing their time in jail. Additionally, a slightly higher percentage of Black and Latinx defendants are detained without bail as compared to White defendants.
Improving our data collection to identify and remedy racial and ethnic disparities in judicial decision-making. The Harvard study was limited by the data on race and ethnicity that was available from our court database in 2014-2016. Many of these limitations no longer exist because of improvements in our data collection, but we recognize that we can do better. For fiscal year 2019, we have race data for 82 per cent of criminal defendants and ethnicity data (Hispanic/non-Hispanic) for 59 per cent of criminal defendants. We will strive to continue making improvements as quickly as possible.
We are also beginning to keep data regarding race and ethnicity in show cause hearings and in certain types of civil cases, beginning with eviction cases in our Housing Court. This information is essential to determine whether racial and ethnic disparities exist in the outcomes of show cause hearings and civil cases.
Rooting out bias and promoting equity and inclusion within our court system. More broadly, we must strive to eliminate bias in all aspects of our court system, to ensure that all court users are treated respectfully and fairly, and to provide a supportive and inclusive work environment for all court employees.
Since 2015, the Trial Court, in collaboration with the SJC, has been engaged in a comprehensive initiative to address issues of bias in our court system. As a first step in this process, we held a mandatory day-long all-court conference in September 2015 to open a dialogue among Massachusetts judges to consider the impact of implicit bias on the work we do in courthouses across the Commonwealth. Based on what was learned at that conference, each Trial Court department developed implicit bias benchcards, which were shared with all judges and magistrates. Additionally, follow-up events were held by subject matter, such as civil or criminal matters where scenarios were reviewed to identify issues of bias.
Subsequently, the Trial Court established a Race and Implicit Bias Advisory Committee, which oversees related committees in each department, and created an Office of Diversity, Equity, Inclusion and Experience, headed by Chief Experience and Diversity Officer John Laing. The Trial Court also retained two nationally recognized consultants from Columbia Law School’s Center for Institutional and Social Change (CISC) to help develop strategies to address racial bias.
Working together, Trial Court leadership, the Trial Court Race and Implicit Bias Advisory Committee, the Office of Diversity, Equity, Inclusion and Experience, and CISC have sought to transform Trial Court culture by integrating diversity, equity, and inclusion efforts into all aspects of court operations, including recruitment and hiring, training, staff meetings, conflict resolution, and strategic planning; by developing and implementing a system-wide, evidence-based curriculum and methodology that bring together employees with different roles and identities, and build the capacity of employees throughout the court system to discuss race and bias openly and constructively, intervene constructively when issues involving race and bias arise, and hold each other accountable; and by building a self-sustaining infrastructure so that, going forward, the Trial Court continually trains employees and develops leadership in addressing race and bias.
The Trial Court has sought to implement these strategies through a number of programs administered by the Office of Diversity, Equity, Inclusion and Experience. More than 130 Trial Court judges and staff members have participated in Leadership Capacity Building Workshops designed to support judges and court staff in leading difficult conversations on race and identity and addressing issues involving diversity, equity, and inclusion when they arise. Approximately 90 percent of Trial Court personnel have engaged in Signature Counter Experience training — a customer service course that is designed to ensure that all court users are treated respectfully and professionally throughout the courthouse. The Office of Diversity, Equity, Inclusion and Experience has created a program entitled “Beyond Intent,” which seeks to educate court members about the harmful impact that words and actions can have on colleagues and court users even though no injury was intended. And Superior Court Judge Angel Kelley Brown and Chief Diversity and Experience Officer John Laing are also preparing a video for all judges and court staff urging them to be “upstanders” — to stand up against acts or words reflecting bias, conscious and unconscious, whenever they see them.
Another important step we have taken in our Trial Court is to promulgate a new and comprehensive anti-discrimination policy and establish a new Office of Workplace Rights and Compliance to enforce the new policy. This Office addresses and investigates concerns and complaints of discrimination, harassment, or retaliation involving protected categories such as race, gender, or disability.
We are also educating ourselves on the tragic history of racism in this country and how to combat it more effectively. In April 2019, 50 judges travelled together (paying our own way) to Montgomery, Alabama to visit the Legacy Museum and the National Memorial for Peace and Justice commemorating victims of lynching, both created by Bryan Stevenson’s Equal Justice Initiative. In October 2019, Bryan Stevenson in turn visited us and spoke to more than 140 judges at a forum sponsored by the Flaschner Judicial Institute. And in July 2020, more than 115 judges heard Professor Ibram X. Kendi, author of How to Be an Antiracist, via Zoom, again courtesy of the Flaschner Institute. The Flaschner Institute, through the leadership of its new Chief Executive Officer, retired Appeals Court Justice Peter Agnes, has also planned programs on race and the criminal justice system. The thirteen judges on the Superior Court’s Race and Implicit Bias Committee are participating in, and invited other judges to participate in, the “21-day challenge for racial equity,” which consists of reading, watching and/or listening to one or more pieces about racism every day, using a syllabus put together by a section of the American Bar Association.
Despite these efforts, we recognize that we still have much work to do to root out bias in all aspects of our court operations. For example, our recent discussions with attorneys of color have alerted us to the racial profiling they too often experience from our court officers when they attempt to enter our courthouses or our courtrooms, where they are not treated as attorneys doing their jobs, but are mistakenly profiled as criminal defendants, or the family members or friends of criminal defendants. The Trial Court Security Department has instituted implicit bias training to address this concern. And we have established a hotline in the Trial Court’s Office of Workplace Rights and Compliance – 617-878-0411 – that attorneys and members of the public can call either to lodge a complaint about acts of bias by judges and court staff, or simply to call out such conduct and request that it be corrected.
Increasing diversity in our court system. Another means of fighting racial and ethnic inequity in our legal system is by increasing the diversity of court personnel. A more diverse workforce brings a broader range of perspectives into the courts and thereby helps to educate us all about the experiences of people who are different from us in race and ethnicity, as well as gender identification, sexual orientation, or class background. A court workforce that mirrors the diversity of our Commonwealth also promotes litigants’ trust in the equity of our judicial system. As stated in the Trial Court’s Strategic Plan 3.0 (July 2019), “we want our workforce to reflect the diversity of our users and to be culturally competent and welcoming.” Accordingly, we have made it a strategic priority to increase the diversity of our workforce through recruitment, outreach, career development, and promotion.
Of course, many positions in the court system are not subject to the courts’ control. Judges and clerk-magistrates are appointed by the Governor, with the advice and consent of the Governor’s Council, while certain other clerks of court and registers are elected. But where the courts have the authority to make their own employment decisions, we can use this power to increase the diversity of our court personnel by hiring and promoting qualified candidates of color.
To measure progress toward this goal, the Trial Court has instituted an annual Diversity Report. The initial Diversity Report, issued for Fiscal Year 2017, showed that overall 23% of Trial Court employees were members of racial/ethnic minority groups, which was consistent with the overall race/ethnic percentage (21%) of the Massachusetts Labor Market as reported in the 2010 census. Since then, the Trial Court has continued to move forward, and as of Fiscal Year 2019, the percentage of race/ethnic minority Trial Court employees had increased to 26% of all Trial Court employees. The Trial Court has also made improvements in the percentage of race and ethnic minorities employed in its managerial ranks. Between Fiscal Year 2017 and Fiscal Year 2019, the percentage of race/ethnic employees has increased from 16.1% to 23.6% of officials and administrators, and from 23.2% to 24.6% of professionals.
Each year, we celebrate our increased diversity with annual cultural appreciation events that encourage court staff to share and learn more about each other’s cultural heritage. What began as a day of cultural appreciation events has evolved into a week of such events, celebrated throughout our courts.
But as in other areas, our efforts to improve the diversity of our workforce must continue. In particular, as Chief Justice Carey recently noted, “[t]he number of Black employees and employees of color is insufficient in the judicial and clerk-magistrate ranks.” While we do not have control over these appointments, we do have an “obligation to hire people of color in leadership roles and do more to mentor our diverse talent and create pathways that would enable them to move up in the organization” and “build the skills to obtain a judicial or clerk-magistrate appointment and other positions within the court system.”
Becoming “more proximate” with communities of color. We recognize the need, in the words of Bryan Stevenson, to get more “proximate” with communities of color, so that we better understand the experience of these communities with our courts and can attempt to address their concerns. Massachusetts was among six states chosen nationally by the National Center for State Courts to participate in a pilot community engagement program to increase public trust and confidence in the courts. Through this program, the Office of Diversity, Equity, Inclusion and Experience has worked with local court and community leaders to hold a variety of public forums designed to educate participants about court procedures, answer their questions, and address their concerns. Judges and justices have also participated in town halls and listening sessions, in person and virtually, in communities of color throughout the Commonwealth. And we shall continue to do so in the coming months.
Conclusion. We recognize that we have miles to go in addressing the effects of systemic racism and bias in our courts. But it is also important to recognize that we have already begun this journey and that we are deeply committed to continuing to make progress as quickly as we can, for failure is not an option. To paraphrase the old civil rights song, we will not “let anything turn us around” as we march down that road. And as we do so, we invite your observations, your suggestions, your engagement, and, yes, your constructive criticisms, to help us see the way forward more clearly.
 Equal Justice: Eliminating the Barriers, Supreme Judicial Court Commission to Study Racial and Ethnic Bias in the Courts, Sept. 1994.
 See The Sentencing Project, State-by-State Data(showing Massachusetts as having the second lowest rate of incarceration among all states, based on U.S. Bureau of Justice Statistics data for 2018).
 Annual Address: State of the Judiciary, Ralph D. Gants, Oct. 20, 2016, at 5, citing Selected Race Statistics,
Massachusetts Sentencing Commission, Sept. 27, 2016, at 2.
 Id. at 63.
 Id. at 64.
 Criminal Sentencing in the Superior Court: Best Practices for Individualized Evidence-Based Sentencing, March 2016; updated October 2019, at iv.
 Id. at v.
 Racial Disparities in the Massachusetts Criminal System, at 23-24.
 Altogether, we have we have data on the race or ethnicity, or both, of nearly 93 per cent of criminal defendants.
 See www.americanbar.org/groups/labor_law/membership/equal_opportunity/?fbclid=IwAR1lHvCxX9RzWp0u7FarSzDm3JhPEHS6GRK76uwtKSgL2pCOMSGcbqVkTZY or www.americanbar.org/groups/public_contract_law/leadership/21-challenge/.
 Massachusetts Trial Court Annual Diversity Report Fiscal Year 2018, at 12; Annual Diversity Report Fiscal Year 2019, at 12.
 Paula M. Carey, Reflections on a ‘particularly symbolic’ Juneteenth, Massachusetts Lawyers Weekly, June 25, 2020.
by Martin Murphy
Chief Justice Ralph D. Gants’ death on September 14 left a gaping hole in the fabric of the Massachusetts legal community. For many lawyers—myself included—the news we received that Monday afternoon seemed simply unworthy of belief. Chief Justice Gants was just too full of energy and optimism and life to be gone so suddenly. We knew, of course, that he’d suffered a heart attack ten days earlier. But we expected a full recovery. After all, we knew he had much left to do.
Now, nearly three months later, that terrible news has begun to sink in. And so we dedicate this special issue of the Boston Bar Journal—one the BBA wishes it had no need to publish—to Chief Justice Gants. Appreciating the full scope of anyone’s legacy, and certainly the legacy of someone so deeply dedicated to justice as Chief Gants, is no easy task only 90 days after his death. But we can at least begin to appreciate that legacy now, for there is no doubt he left an extraordinary mark on our law, our courts, and on the thousands of Massachusetts residents who feel their impact every day.
Nowhere was the Chief’s impact felt more deeply than in his work on the Massachusetts criminal justice system, particularly his outspoken advocacy against minimum mandatory sentences and systemic racism—issues that have also been at the center of the BBA’s work.
After being sworn in as Chief in 2014, Chief Justice Gants jumped into the controversy about minimum mandatory sentences with both feet. He made his first State of the Judiciary address on October 16, 2014—just 80 days after being sworn in as Chief Justice—and made his priorities plain, calling for “individualized, evidence-based sentences.” Mandatory minimum sentences, the Chief noted, interfered with sentencing judges’ ability to impose what he called “hand-crafted sentences.”
This was not about guarding judicial prerogative. The Chief Justice made clear that a primary concern was about the effects of mandatory minimum sentences. As he wrote: “Mandatory minimum sentencing in drug cases has had a disparate impact upon racial and ethnic minorities.” He marshalled the statistics, noting that racial and ethnic minorities accounted for less than one-third of convicted offenders, but comprised “75% of all those convicted of mandatory drug offenses.”
Chief Justice Gants’ 2014 address was remarkable, but it was only the beginning of his work on racial justice in the criminal justice system. First, he made sure the judiciary’s own house was in order by directing the Trial Court to develop and make public a comprehensive set of best practices in sentencing based on social science data and research. In 2015, he joined Governor Baker and the state’s legislative leaders in inviting the Council of State Governments to do what he described in his State of the Judiciary address that year as a “deep dive” into the State’s criminal justice system, and he committed publicly, “Follow the data and allow it to drive the analysis, letting the chips fall where they may.” And in 2016, Chief Justice Gants announced that he had asked Harvard Law School Dean to “gather an independent research team to explore the reasons for racial and ethnic disparity in the incarceration rate in Massachusetts.” “We need to learn the truth behind this troubling disparity,” the Chief said, “and once we learn it, we need the courage and commitment to handle the truth.”
Chief Justice Gants’ commitment to criminal justice reform has already produced results. In 2018, following the Council of State Governments report that Chief Justice Gants had called for—and a report by the BBA we were proud to see Chief Justice Gants praise in his 2017 State of the Judiciary address—Massachusetts eliminated a number of mandatory sentences in drug cases, reduced penalties for others, and enacted other reforms. But the Chief characteristically refused to rest on his laurels. “The landmark legislation enacted this year is an impressive beginning to criminal justice reform,” he said, “but it is only a beginning.”
On September 9, the day after Chief Justice Gants announced that he had had a heart attack, and less than a week before his death, Harvard Law School’s Criminal Justice Policy Program released the study of racial disparities in the Massachusetts criminal justice system Chief Gants had called for in 2016. The study paints an extraordinarily disturbing portrait of our criminal justice system in action. Here are five of the report’s key findings:
- “The Commonwealth significantly outpaced national race and ethnicity disparity rates in incarceration, imprisoning Black people at 7.9 times that of White people and Latinx people at 4.9 times that of White people.”
- “Among those sentenced to incarceration, Black and Latinx people sentenced to incarceration receive longer sentences than their White counterparts.” For Black people, the average is 168 days longer; for Latinx individuals, an average of 148 days longer.
- “[O]ne factor—racial and ethnic differences in the type and severity of initial charge—accounts for over 70 percent of the disparities in sentence length.”
- Black and Latinx people charged with drug and weapons offenses are more likely to be incarcerated and receive longer sentences than White people charged with similar offenses. “This difference persists after controlling for charge severity and other factors.”
- “Black and Latinx people charged with offenses carrying mandatory minimum sentences are substantially more likely to be incarcerated and receive longer sentences than White people facing charges carrying mandatory minimum incarceration sentences.”
Much of this comes as no surprise to anyone with experience in the Massachusetts criminal justice system. But, thanks to Chief Justice Gants, we now have data, not just anecdotes, to use as tools to fight minimum mandatory sentences and charging decisions that deepen the impacts of systemic racism.
Chief Justice Gants’ challenge to each of us as lawyers, and to organizations like the BBA, is simple: the data proves the system is broken; what will we do to fix it? To honor Chief Justice Gants’ legacy, we need to do more than spot the issues. It’s time for action.
Voice of the Judiciary
Human reason is beautiful and invincible.
No bars, no barbed wire, no pulping of books,
No sentence of banishment can prevail against it.
It establishes the universal ideas in language,
And guides our hand so we write Truth and Justice
With capital letters, lie and oppression with small.
It puts what should be above things as they are,
Is an enemy of despair and a friend of hope. . . .
Czeslaw Milosz, Incantation. Translated by Cseslaw Milosz and Robert Pinsky.
January 9, 2020: The question comes near the end of oral argument. “What is the obligation of the Court,” asks the Chief Justice, when defense counsel reports allegations of racism in jury deliberations that may have changed some votes to guilty? The Chief Justice repeats the question: “What’s a judge’s obligation” in such circumstances? The answer comes on September 24, 2020, ten days after his death. It is the obligation of a judge to address promptly any allegation that racial or ethnic bias may have infected the jury deliberations, the Chief Justice wrote. Commonwealth v. McCalop, 485 Mass. 790, 791 (2020). “A guilty verdict arising from racial or ethnic bias not only poses a substantial risk of a miscarriage of justice,” he continued, “but also, ‘if left unaddressed, would risk systemic injury to the administration of justice.’” Id. (quoting Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 868 (2017)).
Ralph D. Gants served as Chief Justice of the Supreme Judicial Court from 2014 to 2020. McCalop, and several more of his final opinions, are exemplars of the tenets he held for guiding the Massachusetts judiciary. Each opinion is beautifully written, carefully reasoned. Each holds in equipoise the resolution of the case at hand, and the articulation of broader principles, signposts to ensure future decisions will be fair, just, and sensible. Each is a painful reminder of how much we have lost by his untimely death. Chief Justice Gants wrote to establish universal ideas in language; human reason guided his hand to write Truth and Justice with capital letters.
In two of Chief Justice Gants’ last opinions, the Court recommended changes to the Model Jury Instructions on Homicide. In Commonwealth v. Castillo, 485 Mass. 852 (2020), released on October 6, the Court set aside a conviction of murder in the first degree and reduced the degree of guilt to murder in the second degree because, the Chief Justice wrote, the Model Jury Instructions on the meaning of “extreme atrocity and cruelty” did not adequately distinguish between murder in the first and second degree. Id. at 854. “The defendant’s conduct—firing a single shot into the victim’s back—was stupid, senseless, and cowardly,” he wrote. Id. at 867. “Indeed, where it tragically caused the death of a young man, it was atrocious and cruel. . . . But extreme cruelty means that the defendant caused the person’s death by a method that surpassed the cruelty inherent in any taking of human life . . . . Nothing about the facts of this case suggests that the defendant’s conduct met that standard.” Id. at 867–68 (emphasis in original) (quotation and citation omitted). The Court included a new provisionally revised model jury instruction to better distinguish conduct that warrants a conviction of murder in the first degree from conduct that should result in a conviction of murder in the second degree. Id at 865–66, 869.
In Commonwealth v. Dunphe, 485 Mass. 871 (2020), released on October 7, Chief Justice Gants again authored an opinion vacating a conviction of murder in the first degree because of inadequate jury instructions, this time regarding the defendant’s criminal responsibility for the killing. The defendant, suffering from hallucinations and a false belief that the victim was his abusive father, had killed a fellow patient in a psychiatric ward. Id. at 872. The trial judge instructed the jury in a way “that closely tracked” the Model Jury Instructions. Id. Nevertheless, the Chief Justice wrote, there was a “significant risk” that the jury could misunderstand those instructions. Id. at 889. “What our case law declares, but our model jury instructions do not, is that if a defendant has a mental disease or defect, its origins are irrelevant: it does not matter whether the disease or defect arose from genetics, from a childhood disease or accident, from lead poisoning, from the use of prescription medication, or from the chronic use of alcohol or illegal drugs. . . . A drug-induced mental disease or defect still constitutes a mental disease or defect for purposes of a criminal responsibility defense.” Id. at 880–81 (citation omitted). “Intoxication from alcohol or the high from drugs is not a mental disease or defect where the loss of capacity ends when the effects of the alcohol or drug wear off; a mental disease or defect is something more enduring, reflecting something about the person’s brain chemistry that, although perhaps not permanent, is more than the transient effect of the person’s substance use,” he wrote. Id. at 880. The Court again included provisionally revised model jury instructions “to address what we conclude is a potential and problematic risk of confusion.” Id. at 873, 884–89.
As a final example, a district court judge’s ruling that a defendant violated a condition of probation by reporting on a sex offender registration form that his work address was his home—without also reporting as a work address a home in Lynn where he was doing repair work—came under scrutiny in Commonwealth v. Harding, 485 Mass. 843 (2020), released on October 5. The Court reversed in an opinion authored by the Chief Justice, where his search for what he would term “sensible” outcomes is clear: “The interpretation [of ‘work address’] that the Commonwealth asks us to adopt would suggest that a registrant who is self-employed might not be self-employed at all, because each client for whom the registrant provided services for the requisite time period would be deemed the employer, whose address the registrant would be required to record. No reasonable registrant filling out this form would understand the form to ask for this information. Nor would the Commonwealth’s interpretation make practical sense.” Id. at 847. “[I]f the defendant, or other self-employed registrants like him, were required to provide a client’s address as a ‘work address,’” he continued, “many clients who might otherwise hire him might refrain from doing so because they might not want their home address listed on SORB’s website as the sex offender’s place of employment. As a result, the otherwise self-employed sex offender might soon be functionally unemployed.” Id. at 849.
Ralph Gants ended his tenure as Chief Justice as he began it. In remarks delivered when he took the oath of office on July 28, 2014 he said: “I firmly believe that our judicial system will be in a better place in the next three, five, ten years. My confidence does not rest in my belief in me, because I know that I can accomplish none of this alone. My confidence rests in my belief in we, in what I call our justice team. . . . If we are willing to search for new ways to solve old problems, if we are willing to put our egos aside and remember that it is not about us, if we are willing to work our tails off, if we are willing to work together, I know that we can build a justice system that will not only dispense fair, sensible, and efficient justice, that will not only help to address the formidable problems faced by so many of the residents of this Commonwealth, but that will be a model for the nation and for the world.”
Ralph Gants searched for new ways to solve old problems. He worked his tail off. He put aside his ego and worked with others to build a model judicial system. In oft-cited remarks, Oliver Wendell Holmes, Jr., then an Associate Justice on the Supreme Judicial Court, said: “The law is the calling of thinkers. But to those who believe with me that not the least godlike of man’s activities is the large survey of causes, that to know is not less than to feel, I say—and I say no longer with any doubt—that a man may live greatly in the law as well as elsewhere; that there as well as elsewhere his thought may find its unity in an infinite perspective; that there as well as elsewhere he may wreak himself upon life, may drink the bitter cup of heroism, may wear his heart out after the unattainable. . . .” Chief Justice Ralph D. Gants wore his heart out seeking to address the formidable problems faced by so many. He wreaked himself upon life. Why? He was simply being Ralph.
 The Justices first approved and recommended the use of Model Jury Instructions on Homicide in 1999. The Court issued revised Model Jury Instructions in 2013. In April 2018, the Supreme Judicial Court again released revised Model Jury Instructions on Homicide.
Margaret H. Marshall is Senior Counsel at Choate Hall & Stewart LLP. She served as Associate Justice (1996–1999) and as Chief Justice (1999–2010) of the Supreme Judicial Court.
Marina Pullerits is an Associate at Choate Hall & Stewart LLP. She served as a law clerk (2018–2019) to Chief Justice Ralph D. Gants.
Appreciation of Chief Justice Gants
by Abrisham Eshghi
“Imagine a world.” Some of the Chief’s greatest questions began with these three words. Sometimes, they prefaced a thought-provoking hypothetical where the Chief would alter the facts. Other times, they required thinking through the broader implications of a potential ruling that initially seemed straightforward. But, most often, these words were an invitation to imagine a world that is better than ours, and to imagine what we need to do to get there.
I had the extraordinary privilege of clerking for Chief Justice Gants in the 2017-18 term. It was a year spent trying to reason like him, react like him, probe like him, and simply keep up with him.
He welcomed disagreement. A cherished mantra of his was “when you point out that my reasoning does not make sense, there are only two possible outcomes: Either you have allowed me to avoid making a mistake, or you have identified that there must a better way to articulate this.” In fact, he assigned his clerks homework on this topic, such as a chapter from Malcolm Gladwell’s Outliers discussing a theory of why Korean airlines experienced a disproportionately high rate of plane crashes. The theory begins with the fact that when signs of danger appear during a flight, the pilot who spots the signs must alert the other pilots. Yet in cultures that value deferential communication styles with authority figures, this may translate to a cockpit where instead of the lower-ranking pilot unequivocally communicating imminent danger to the higher-ranking pilot, the lower-ranking pilot instead meekly suggests that something may not be quite right. My takeaway – yell at the Chief so he does not crash the plane!
He welcomed compassion. He truly never lost sight of the people that were governed by the cases that came before the Court. While other judges might start and end a case with the routine application of a statute or precedent, in the Chief’s hands, the case blossomed into an opportunity to examine how citizens of the Commonwealth live and experience the world around them. Standards of how a “reasonable person” would act or think are baked into almost every area of the law, and “common sense” is routinely invoked by courts as grounds for choosing one argument over another. But the Chief cautioned his clerks against blindly accepting words like “reasonableness” and “common sense,” as they were often shorthand for the convenient status quo. “Reasonable for whom?” he would ask. “Common sense for whom?”
He welcomed accessibility. The Chief never wanted to “hide the ball” in his work and habitually requested that his clerks craft judicial opinions so that “even an intellectually curious fourteen-year-old” could understand what he was trying to say. If, in the course of drafting an opinion, we encountered a tortuous precedent, he would insist that we “say it better” without replicating the difficulties. He had a knack for homing in on the occasionally muddled or misguided ways in which parties to a case framed issues, and then crafting a cleaner explanation of what the case was really about. The ease with which he exercised this last skill was particularly admirable.
It pains me to think about how much more he had in him to give. My only comfort is in sifting through my myriad memories of the time I was lucky enough to share with him. I will miss his brilliant questions, and his even more brilliant solutions. I will miss his antiquated cultural references that went over my head. I will miss his Red Sox metaphors that also went over my head. I will miss him addressing the trio of himself, my co-clerk Maia, and me as “us gals.” I will miss the intense swell of pride I felt during his 2015 speech at the Islamic Society of Boston Cultural Center when he said “[y]ou do not stand alone.” I will miss him spontaneously making up new lyrics to the song “The Impossible Dream” from Man of La Mancha. I will miss our rejuvenating “mental health walks” as we meandered through Boston Common. I will miss watching him absentmindedly devour an entire baguette in one sitting. I will miss seeing the two sizeable portraits of Justice Louis Brandeis and Justice Thurgood Marshall looming over his desk and thinking to myself that, with room on the wall for a third, a portrait of the Chief would complete this triptych of legal giants. I will miss the sparkle in his eye when he knew there was challenging work to be done. I will miss his infectious fits of giggles. And I will sorely miss him next year at my wedding, where he had promised to officiate.
I recently found the copy of The History of the Law in Massachusetts that the Chief gifted me on the last day of my clerkship. His parting words to me, penned on the front cover in his quirky doctor’s scrawl, were “believe in yourself as I believe in you.” Prior to his death, these words brought me great comfort. But in death, his words take on a different form. I feel them almost vibrating off of the page. Demanding that I believe in myself. Demanding that the time is now to take action. Demanding that I pick up the baton and continue his work.
Chief Justice Gants was inimitable. But we must now try our hardest to step into his magnificent mind so that we may carry on his extraordinary legacy.
I hope you’re still getting in good trouble, Chief.
Abrisham Eshghi is an Assistant Attorney General in the Civil Rights Division of the Massachusetts Attorney General’s Office. She clerked for Chief Justice Gants during the 2017-18 term.
Appreciation of Chief Justice Gants
We had the enormous privilege and pleasure of serving as law clerks to Chief Justice Gants during his first full year on the Supreme Judicial Court (2009-2010). He was an extraordinary teacher and mentor, and the year we spent in his chambers fundamentally shaped how we view the law and our role and responsibilities as lawyers.
Law clerks, when they are able to be helpful at all, tend to treat every case as a purely legal problem that can be solved by identifying the perfect case citation, judicial doctrine, or other legal tool. Chief Justice Gants took a broader view: all cases presented legal problems to solve, but most cases also required a judgment that weighed considerations of policy, administrability, and equity. In deciding a case, the Chief was always grateful for a clerk’s cogent legal analysis and the best citations available, but it was usually clear that — having been pretty sure from the start what the law was likely to provide — he had been spending his own time thinking through what the real-world consequences of the Court’s decision would be for lawyers, judges, and most particularly, everyday people.
He loved people — all sorts of people, including the two of us, a couple of strangers he found already hired and deposited with him even before he was confirmed. His law clerks were special to him, and he taught us with humor and affection. “You’re not a Jedi Knight yet, but you show great promise” is how he began his gentle review (and quiet wholesale restructuring) of the work we produced for him in the earliest months of the term, when we knew the least. He liked to take us on working walks across the Common to talk through cases that would be helpful to him as he worked out the shape of his decisions in his mind. This met his need for constant activity in days that were always too short for everything he wanted to get done: work, mentoring, and a little light exercise all combined in one outing. He was a brisk walker, but halfway across the street, we sometimes found we had left him on the corner: he never jaywalked, not even on the margin.
Every few weeks, the Chief would invite us to a sit-down lunch at his favorite Chinatown cafe. For the first few lunches, we expected that he had set the occasion to impart some great piece of wisdom or to let us know of some important development on the Court, but actually he just wanted noodles, a friendly chat, and a short break from his work. During our year at the Court and in all the years that followed, the Chief kept up with our personal and professional news and also with the accomplishments of our spouses and children. We never could figure out how he had the time or head space to manage this.
The Chief’s deep interest in people was at the heart of his work as a judge, and he was dogmatic only in his drive to deliver more justice to more people, inject more fairness into society, and bring more good to the world. The clearest expression of his judicial philosophy is the statement he made in a 25th anniversary Harvard class report, that deciding cases required him to balance the “sometimes conflicting obligations of following the law and ensuring fairness.” Worrying about the fairness of a legal rule requires a judge actually to see and consider the rule’s consequences for the individuals affected by it. The Chief put all of his intelligence and experience and wisdom into seeing those consequences clearly and weighing them fairly. First as an associate justice of the Court, then as its leader, the Chief believed the Court’s mission was not to hand down the law to the people but rather to make the law serve the people.
Early on, his decisions took on this mission in smaller cases like Papadoupolos, where he dispensed with the Commonwealth’s unique “natural accumulation” rule for liability claims involving snow and ice, a legal doctrine that gave no consideration for people injured in falls and that had long survived only on the basis of its repetition in the case law. Later, when he had reached the height of his own Jedi powers, he and the Court executed on this mission in much bigger cases, like Adjartey, which delivered a clear-eyed and comprehensive view of the systemic inequality and inequity that can arise in housing court, where most tenants are without counsel. The Chief’s opinion in Adjartey made the problems of people who must rely on the housing court seen and heard for the first time, and made the judicial system responsible for addressing those problems. Eleven years into our careers as lawyers, this challenge — to discern not only what the law allows, but also what fairness demands — is the most valuable, continuing lesson we take from our year working with the Chief.
The Chief never achieved his first great ambition, to play shortstop for the Red Sox, but as a judge, he had made it to the major leagues. That is what is so deeply tragic about losing him now. Six years into his role as the chief justice and with four years left before hitting the Court’s mandatory retirement age, he was really just rounding second base. He had established himself as one of the great jurists in the history of the Supreme Judicial Court, and he was focused on making permanent his mark on the justice system writ large. A hugely important report he had commissioned on racial disparities in the Massachusetts criminal justice system was published five days before his death. The morning he died, he was hammering out details of a statewide eviction diversion initiative, which aims to address the civil justice gap across the Commonwealth’s housing courts as they brace to manage the economic fallout from the COVID-19 pandemic. His heart was in the work of reform. As we grieve, it is in large part for the work he leaves undone.
Also, we miss him.
Larisa Bowman is a Visiting Associate Professor at the University of Iowa College of Law. She clerked for then-Associate Justice Ralph D. Gants during the 2009-2010 term.
Mike Kaneb is Deputy Chief Legal Counsel to Governor Charlie Baker. He clerked for then-Associate Justice Ralph D. Gants during the 2009-2010 term.
by Tad Heuer
Judges are often remembered for either their landmark opinions or their incisive dissents, and Chief Justice Ralph Gants wrote both. But over his twelve terms on the Supreme Judicial Court, he wielded adroitly a third option, more frequently than any of his fellow justices. On forty-three occasions — first as an Associate Justice and then as Chief — Justice Gants authored a concurrence.
Concurrences are a legal curiosity. Unlike a dissent, where a judge explains why his colleagues got it wrong, a concurring judge believes the opposite: that his colleagues got it right. Moreover, with each SJC justice writing roughly the same number of majority decisions each term, a concurring justice is voluntarily taking on additional and avoidable work. Yet it is precisely because concurrences are arguably unnecessary that they are so valuable. Concurrences can signal the potential limits of the majority opinion, indicate whether the majority reached the right result but for the wrong reason, or warn where a statute — while clear — creates an unintended result. And when used wisely, and unencumbered by the formal strictures of a majority opinion, a concurrence can illuminate a judge’s perspective on how the law could be more fair and more just.
With a nod to his beloved Boston Red Sox, Chief Justice Gants’ penchant for concurrences is best illustrated by turning to the SJC’s own box score. Chief Justice Gants served with fourteen other justices during his time on the Court and authored 260 opinions, 17 dissents, and 43 concurrences (including six instances when he added further nuance by concurring in part and dissenting in part). While Chief Justice Gants dissented on average about as frequently as his fellow justices (8% of his decisional writings, versus an average of 5% for his colleagues), 13% of his decisional writings were concurrences, compared with only 5% of those of his colleagues. With an average of nearly four concurrences per term, Chief Justice Gants nearly doubled the average of his next closest colleague, while more than tripling the one-concurrence-per-justice-per-term average of his colleagues generally. In raw numbers, he wrote 17 more concurrences than his next-closest colleague, Justice Robert Cordy, who served for four more years than Chief Justice Gants. Indeed, as of the time of his passing he had penned more concurrences than eight of his 14 colleagues combined.
While Chief Justice Gants concurred at least once in every year on the Court, his concurrences became more frequent in recent years with six each in 2017 and 2018, and eight in 2020. Yet he had a knack for attracting company. Of his 43 concurrences, only eleven were on his own: Thirteen brought along one other justice, sixteen brought along two other justices, and one even brought along three others. With 30 concurrences in criminal cases and 13 in civil, his topics ranged widely from homicide instructions and trial procedure to child custody and spendthrift trusts. But examining why he concurred so frequently provides a window into the jurist Chief Justice Gants was.
He used concurrences to point out where the Legislature may wish to revise statutes that compelled counterintuitive results that he perceived as unintentional. In a pair of cases involving the state wiretap statute, Commonwealth v. Tavares, 459 Mass. 289 (2011) and Commonwealth v. Burgos, 470 Mass. 133 (2014), he discussed the problematic practical consequences arising from the statutory requirement of a “connection with organized crime” as a prerequisite for its use, noting:
electronic surveillance is unavailable to investigate and prosecute the hundreds of shootings and killings committed by street gangs in Massachusetts, which are among the most difficult crimes to solve and prosecute using more traditional means of investigation.
“If the Legislature wishes to avoid this result,” he suggested, “it should amend [the statute] to delete those words.” Tavares at 305; Burgos at 149. Similarly, in Commonwealth v. LeBlanc, 475 Mass. 820 (2016), Chief Justice Gants used his concurrence to encourage the Legislature to harmonize contradictory statutory provisions (about when a driver needed to remain at the scene after causing an accident), while in Commonwealth v. Almonor, 482 Mass. 35 (2019) he wrote separately to “underscore the need for the Legislature to give careful consideration to amending G. L. c. 276, § 2B, to permit warrants to be applied for and approved remotely through reliable electronic means.” Id. at 69.
He used concurrences to signal the direction he felt the common law should go. This approach was most prominent in his four-member concurrence in Commonwealth v. Brown, 477 Mass. 805 (2017). In that case, the Court unanimously agreed that the felony-murder rule (permitting a conviction of murder in the first degree for the commission of an underlying violent felony resulting in a death) was constitutional. Chief Justice Gants nonetheless saw the opportunity through concurrence to narrow prospectively the scope of the rule to require actual – not constructive – malice inferred from the underlying felony:
When our experience with the common law of felony-murder liability demonstrates that it can yield a verdict of murder in the first degree that is not consonant with justice, and where we recognize that it was derived from legal principles we no longer accept and contravenes two fundamental principles of our criminal jurisprudence, we must revise that common law so that it accords with those fundamental principles and yields verdicts that are just and fair in light of the defendant’s criminal conduct.
Id. at 836.
This attention to ensuring that the development of the common law reflect the practical reality of the contemporary world pervaded other concurrences as well. In Commonwealth v. Berry, 466 Mass. 763 (2014), then-Justice Gants concurred to identify “an apparent inconsistency in our common law of homicide that we should confront when the issue next arises, i.e., whether a defendant’s state of mind must be considered in determining whether a murder is committed with extreme atrocity or cruelty.” Id. at 778. And in Miller v. Miller, 478 Mass. 642 (2018), involving a contentious child custody dispute, Chief Justice Gants concurred to argue that in future, the Court should consider discarding what he termed the “artificially binary decision-making framework” cobbled together from prior cases, and establish a “single, uniform standard — the best interests of the child — to be applied to all [custody] removal cases,” id. at 659. He expressed concern that the existing “formalistic approach” could have “serious consequences for the parties involved.” Id. at 662.
And in a technical mortgage foreclosure case, U.S. Bank National Association v. Schumacher, 467 Mass. 421 (2014), then-Justice Gants’ concurrence was arguably more important than the majority opinion. The Schumacher Court held that because the statutory pre-foreclosure requirement (notice and a cure period) was not part of the exercise of the power of sale and foreclosure, failure to comply with the statute could not be raised as a defense in a post-foreclosure eviction action. Justice Gants agreed that the statute controlled the facts of the case, but wrote separately to express his concern about the “practical consequences of this opinion.” Id. at 431. His concurrence laid out his view of when it was appropriate to raise the statute as a defense: if the failure to comply with the statute “rendered the foreclosure so fundamentally unfair that [the defendant] is entitled to affirmative relief, specifically the setting aside of the foreclosure sale.” Id. at 433. This “fundamental unfairness” standard is now applied routinely in post-foreclosure actions.
He used concurrences to provide guidance to the lower courts. Sometimes his concurrences signaled that lower courts should be cautious about applying a majority decision too broadly. For example, he concurred in Flagg v. AliMed, Inc., 466 Mass. 23 (2013), primarily to “emphasize the limited scope of [the majority] holding, because I fear that ‘associational discrimination’ might otherwise be interpreted more broadly than the court’s opinion intends.” Id. at 39. Similarly, he concurred in Commonwealth v. Lopez, 458 Mass. 383 (2010), to clarify the “distinction between a search of a home and entry into a home, which, although it does not affect the outcome of this case, may have bearing on the validity of consent in other search cases.” Id. at 399.
In other instances, his concurrences provided frameworks for how lower courts might evaluate rapidly-changing areas of the law, particularly involving technology. These ranged from offering detailed thoughts on “how electronic automatic license plate reader data could be used by law enforcement consistent with constitutional rights to a reasonable expectation of privacy” (Commonwealth v. McCarthy, 484 Mass. 493, 512-13 (2020)), to clarifying his view that the law provides no “safe harbor to conduct a search incident to arrest of text messages or electronic mail messages” found on a cell phone (Commonwealth v. Phifer, 463 Mass. 790, 799 (2012)). Chief Justice Gants used concurrences to encourage his former trial court colleagues — faced with applying existing laws to new and novel factual scenarios — to think thoughtfully about how the Court might view those efforts on appeal.
He used concurrences to give voice to both the challenges and humanity inherent in the complex work of getting justice right. In Schumacher, he began his concurrence by acknowledging that “many mortgage borrowers who will claim such violations will not have the benefit of legal representation, and that our jurisprudence in this area of law is difficult for even attorneys to understand.” 467 Mass. at 431. In Commonwealth v. Williams, 481 Mass. 443 (2019), concurring in a case involving race and jury selection, Chief Justice Gants admitted that from his own experience as a trial judge “there are times, with the benefit of additional thought and the wisdom of hindsight, in which a judge will recognize that a discussion with a juror could have been handled more artfully.” Id. at 458. And he concurred to urge the Court to ensure that its decisions would be understood by the public as being consonant with justice. As he wrote in his concurrence in Commonwealth v. Johnson, 461 Mass. 1 (2009), “[w]e neither ensure that we do justice in a case of murder in the first degree nor ensure the public’s confidence that justice is done where we fail to address on the merits an issue that was never fairly considered because the underlying facts were mistakenly presented by the court on direct appeal.” Id. at 9.
Perhaps most importantly, he used concurrences to highlight what he saw as unfairness. In Commonwealth v. Baez, 480 Mass. 328 (2018), he concurred “to encourage the Legislature to consider the wisdom and fairness of the mandatory minimum aspect of [certain] enhanced sentences, especially where the predicate offenses were committed when the defendant was a juvenile.” Id. at 332. In Deal v. Massachusetts Parole Board, 484 Mass. 457 (2020), he used his concurrence to levy forceful criticism of the failure of the Parole Board to provide “meaningful individualized consideration” to the “distinctive attributes of youth offenders” when making parole decisions. While concurring in the denial of parole because such guidance did not exist at the time of Deal’s hearing, he warned that in future, “we would expect meaningful individualized findings that are far less conclusory and perfunctory than here.” Id. at 470. While only a concurrence, it signaled a disapproval for the Parole Board to ignore at its peril. And it was not only litigants whom Chief Justice Gants sought to protect from unfairness. In Commonwealth v. Leiva, 484 Mass. 766 (2020), he agreed with the Court’s revision of the protocols governing the conduct of defense counsel when their clients intend to testify falsely, but took issue with the majority’s “assumption . . . that defense attorneys will not abide by their ethical obligations to the court when hard decisions have to be made. . . .” He concurred to emphasize that such an assumption “is unfair to the defense bar.” Id. at 798.
Chief Justice Gants concurred up to the very end. Indeed, his last concurrence came in Commonwealth v. Long, 485 Mass. 711 (2020), released just days after his passing. Long addressed the charged issue of racial profiling in traffic stops, and although unanimous, generated multiple concurring opinions. Chief Justice Gants used his four-paragraph concurrence in Long to do three different things. First, he wrote as a justice, to emphasize that the motive of a law enforcement officer matters, and to reiterate that an officer cannot conduct an “inventory” search as a pretext for a more invasive “investigatory” search. Id. at 736. In so doing, he signaled that he would be watching closely in future cases for whether form was being exalted over substance. Second, he wrote as a colleague, explaining why he agreed in part with the more expansive concurring opinion of a colleague, but felt it unnecessary for the Court to reach certain additional constitutional questions identified therein. Id. And third, he wrote as the Chief Justice, in an effort to prevent intramural disagreements over the details from clouding the legal importance of the majority opinion in the eyes of the public: “[D]espite our jurisprudential differences reflected in the various opinions in this case, the court is unanimous in concluding that a motor vehicle stop that arises from racial profiling is unconstitutional . . . .” Id. This keen awareness of the subtle power of the concurrence—from the legal to the practical—demonstrates Chief Justice Gants’ acumen for the form at its finest.
In 1822, Thomas Jefferson complained in a letter to Supreme Court Justice William Johnson that the trend of the collective majority opinion disguised “whether every judge has taken the trouble of understanding the case, of investigating it minutely, and of forming an opinion for himself, instead of pinning it on another’s sleeve.” Chief Justice Gants was never at risk of such remonstration: his numerous concurrences reveal a justice who took the trouble to understand cases, who investigated cases minutely, and who took seriously his responsibility to offer the bench, bar, Legislature, and general public his own insights on how to do better justice.
Tad Heuer is a partner at Foley Hoag LLP, where his administrative law practice focuses on appellate litigation and on advising clients regarding complex federal, state, and local regulatory matters ranging from land use to energy. He clerked for Supreme Judicial Court Chief Justice Margaret H. Marshall during the 2006-07 term, and is a member of the Boston Bar Journal Board of Editors.
by Radha Natarajan
The sudden loss of Chief Justice Ralph Gants shook this community, even in a year when we faced a deluge of losses. The number of people affected by the news and the outpouring of stories about his impact underscore the many dimensions of his work, commitments, and leadership. While there is so much I could say about Chief Justice Gants – including his kindness, accessibility, and humor – I want to focus here on his approach to correcting and preventing wrongful convictions. Specifically, Chief Justice Gants should be remembered not only for what causes he chose to champion but how he pursued change.
Eyewitness Misidentifications & Wrongful Convictions
Moved by stories of exonerations, such as that of Bobby Joe Leaster in Boston, Chief Justice Gants was troubled by the number of wrongful convictions caused by eyewitness misidentifications. Almost a decade ago (even before he was Chief Justice), he referenced the now-well-known statistic that over 70% of wrongful convictions overturned through DNA evidence involved at least one mistaken eyewitness identification.
Chief Justice Gants recognized that making progress toward reducing wrongful convictions caused by eyewitness misidentifications was more complicated than the Supreme Judicial Court simply setting down new rules. Real change would necessitate a diverse set of stakeholders, rigorous study, and ultimately consensus recommendations. He appreciated, probably because of his own humility, that even the seemingly awesome power of the Court was insufficient to initiate and sustain the kind of changes that were necessary to tackle such a complex issue. The creation of the Study Group on Eyewitness Identifications (Study Group) followed.
Through the Study Group, then-Justice Gants brought together people in traditionally adversarial roles to undertake research, come to a common understanding, and develop guidance for the Court. This two-year voluntary undertaking by judges, prosecutors, police officers, defense attorneys, and researchers led to a Report with consensus recommendations. The recommendations were comprehensive, addressing everything from techniques to interviewing witnesses without contaminating memory, to administering non-suggestive identification procedures, assessing an identification’s reliability, determining its admissibility, and considering what information jurors required for the adequate evaluation of identification evidence. Justice Gants then sought public comment on the Report, again ensuring that various perspectives were involved and heard. Like other reports or endeavors he directed, Justice Gants had no intention of leaving this Report on a shelf to collect dust. To the contrary, Chief Justice Gants took the Report’s findings and implications seriously: he diligently studied the research referenced, carefully considered its recommendations as well as the public comments, and then used the Report to guide the Court’s approach to addressing eyewitness identification cases in the future.
Chief Justice Gants was committed to following where the evidence took him, even if it meant that there needed to be a radical shift in the law. This commitment was especially important in this area because, as he often said, the law had previously been guided by misconceptions or “common sense” that was at odds with scientific study. As a result, Massachusetts became a national leader in its approach to eyewitness identification evidence. He spoke often at conferences about the changes heralded by the creation of the Study Group. He was proud that the process involved so many people, recommended such transformational changes, and had the potential to avert the injustice of wrongful convictions. He had hoped that the Study Group would not only impact real people, and prevent tragedies like what happened to Bobby Joe Leaster, but that the process could be replicated to tackle other seemingly intractable issues within the criminal legal system. In short, it represented the culmination of so many of his deeply held values.
Tried & True
The Study Group was not the only example of how Chief Justice Gants chose to tackle issues of injustice. He believed that bringing people together toward a common understanding, based on diligent research and data, was necessary for change. He understood that education was an essential, but not sufficient, part of the process. It is why he held a mandatory implicit bias training for the judiciary, why he commissioned Harvard’s Criminal Justice Policy Program to undertake an in-depth study on the stark racial disparities found in the Massachusetts criminal legal system, and why he tasked a Standing Committee to develop science-based jury instructions on implicit bias. In each instance, he brought people together to study carefully and thoughtfully the issues that required the most significant changes, and in each instance, it was meant to be only a starting point. He did not want to push people to accept change; he wanted to bring people along until there was momentum behind change.
Chief Justice Gants was committed not only to raising the awareness of, and bringing evidence and data to, the bench or bar generally; he was committed to learning himself. For example, in 2018, he accepted an invitation to attend a dinner of faculty who had recently presented at a New England Innocence Project Litigation conference. The faculty included judges, prosecutors, defense attorneys, scientists, and “innocence advocates.” Despite suffering from a recent concussion, Chief Justice Gants attended the gathering and gave a few remarks, mostly to emphasize his commitment to correcting and preventing wrongful convictions. He also expressed his gratitude to the faculty for creating such an incredible opportunity to hear from so many people who, despite playing adversarial roles in litigation, had come together for this purpose. The rest of the night he spent listening, one by one, to what everyone had to say and to our ideas for creating meaningful change. Subjects ranged from the more mundane evidentiary questions to the profound areas of judicial culture and finality. And last year, when the New England Innocence Project held an event at which exonerated men and family members told stories about the impact of their wrongful convictions, Chief Justice Gants came to listen then too. He never tired of learning.
Chief Justice Gants believed that change was possible by bringing people together, having them learn together, and asking them to build toward consensus. In that way, he was a great leader because transformational change did not depend on him alone. It was his inspiration and vision, more than his position, that laid the foundation for these efforts, and there are others who share that same commitment. What Chief Justice Gants started does not need to end with his passing; that was the true genius of his process and the true measure of his humility. We must sustain and continue the things he started, and with him in mind, we must do them together.
Radha Natarajan is the Executive Director of the New England Innocence Project (NEIP), an organization whose mission includes correcting and preventing wrongful convictions and supporting exonerees upon release. Prior to joining NEIP in 2015, Radha spent twelve years as a public defender, most recently at the Roxbury Defenders. She teaches a seminar on Wrongful Convictions at Boston University School of Law.
by Hon. Karen F. Green
Voice of the Judiciary
When I think of Ralph Gants, I think “giver.” Ralph made this world a better place by giving everything he had to everyone and everything he touched. From my perspective, that’s his lasting legacy.
Ralph’s predisposition to give all that he had was reflected in his impressive resume. I suspect that you are familiar with that, so I would like to focus on the man I knew behind the resume.
I knew Ralph both personally and professionally for more than thirty-five years. Our personal friendship remained constant as our professional paths repeatedly crossed.
We first met in 1984, when we were both working for Bill Weld as Assistant U.S. Attorneys. Ralph was handling a high-profile arson case. He also had fallen hopelessly in love with my best friend, Debbie Ramirez. Unfortunately, Debbie had not yet been bitten by the same bug. Ralph enlisted my assistance in helping Debbie to appreciate his finer qualities. Suffice it to say that he did not need much. Ever a zealous advocate, Ralph gave it his all, Debbie fell hard, and my husband, Mark, and I smiled widely as the two joyously wed three years later.
Mark and I had children and Debbie and Ralph had children, first, Rachel, and then, Michael. Life whirred as the four of us sought mightily to balance our personal and professional lives. Debbie, our friend, Joy Fallon, and I started a tradition of walking on Saturday mornings and sharing birthdays together. I still fondly remember a 1993 call I received from Ralph suggesting that I take his wife away. It’s not nearly as bad as it sounds. Rachel was about a month old and the ever-thoughtful Ralph thought Debbie could use a long girls’ weekend for her birthday. Debbie, Joy and I headed to Florida, where we did nothing but enjoy each other’s company, while Ralph assumed full responsibility for Rachel.
Eventually, each of us left the U.S. Attorney’s Office. Debbie entered academia and Ralph and I went to the DPS, that is, the “dreaded private sector.” I got to work with Ralph again, first as a fellow member of Governor-Elect Weld’s transition team, and later, defending corporate clients in federal criminal investigations. I was struck by his intellect, tenacity, and pragmatism. When I wrestled with a particularly thorny problem, I called Ralph, we talked, and the path forward seemed obvious. It was never about Ralph and always about solving the problem.
Debbie, Joy and I continued to walk on Saturdays whenever we could. In 1997, Mark was nominated to the Land Court. He requested Ralph’s help in the confirmation process. As always, Ralph immediately stepped up to the plate. Several months later, Ralph’s nomination to the Superior Court was confirmed. We celebrated with him and Debbie then, when Ralph was appointed to the SJC in 2008, and again when he was named Chief Justice in 2014. With family and friends, we also cheered when Ralph threw the first pitch at Fenway Park after his swearing in.
Fast forward more years. After Mark’s 2017 appointment as Chief of the Appeals Court, he and Ralph worked closely together on a myriad of challenges, including the pandemic confronting the court system. I continued to admire Ralph’s capacity to dig in and to solve whatever problem came his way. And Debbie and I talked, on our walks, about how we never would have predicted, when we were still in law school, that life would turn out the way it did.
Others have already described Ralph, now affectionately known as RDG, as a brilliant jurist and empathetic leader. He certainly was. The Ralph I knew was a leader who listened carefully and put the interests of others before his own. He had high standards that he applied most rigorously to himself. He cared deeply about the rule of law and equal access to justice. He was a judge’s judge who wrote clear and concise opinions on significant legal issues that others could follow. He got things done by working hard and collaboratively with others. He worked to provide equal access to justice right up until the moment he died.
For me, though, Ralph’s most endearing quality was the unconditional love he gave to his family while shouldering all of his other responsibilities. One of the best measures of a man’s character is the way he treats those closest to him. When his own Dad died swimming at age 90, Ralph immediately flew to New York to take care of his mother. He then personally moved her and all of her belongings to Massachusetts. When Helaine’s health declined, Ralph visited her nearly every weekend at the assisted living facility he found for her. At Helaine’s memorial service, Ralph lovingly delivered a tribute to her that made me cry.
Together with Debbie, Ralph also saw his children through serious medical challenges when they were younger. By his daily example, he showed Rachel and Michael what it means to be a “giver” rather than a “taker.” Today, both are paying it forward by giving their best to others. Rachel spent the past summer at the Harvard Legal Aid Bureau assisting tenants threatened with evictions and took the Bar exam in October. Michael returned to Massachusetts from Stanford Business School in September and, like his father, is now focused on helping his mother.
Ralph was an equally thoughtful and caring friend. He, Debbie, Mark, and I shared many happy moments, as well as a few sad ones, over the years. We were fellow travelers in life. We traveled along the same roads not only to judges’ conferences, but also to swim at the beach, to ski in New Hampshire (including during one very scary snowstorm), to bicycle in Italy, and to learn about civil and human rights in places like Israel and Alabama. Ralph took the time to get to know our parents and children, to share in our traditions and celebrations, and to provide a listening ear and comforting words when they were most needed. Whenever I called to request his help, he quickly responded, no matter what else he had on his plate.
And Ralph made me laugh. When Ralph was still in the DPS, I laughed when he delivered an impassioned closing argument in defense of Sweeney Todd at a mock trial at a Boston theater. I recall being struck then by the obvious care that Ralph had devoted to crafting Todd’s defense and the skill with which he had delivered his remarks. Ralph cracked a joke as I nervously joined him in a waiting room outside the White House Counsel’s Office in 2003 that instantly put me at ease. And, in 2013, he sang and danced with a tambourine so unabashedly before all of the patrons at an Italian restaurant that I laughed so hard, I cried. (No, Ralph was not impaired at the time, he rarely drank; he was just once again giving it his all.)
Like many others, I will miss Ralph’s friendship and unfailing kindness, as well as his keen intellect and extraordinary leadership. To paraphrase the poet, Mary Oliver, Ralph died “not simply having visited this world,” but “hav[ing] made of [his] life something particular, and real.”
Let us honor his memory by continuing to be “givers,” rather than “takers” and by continuing to ensure equal access to justice. And just as Ralph would, let us hold ever close to us the people we love.
 “These remarks were originally given orally by Judge Karen F. Green on November 10, 2020. They have been edited minimally for formatting purposes.
Karen F. Green is an Associate Justice of the Massachusetts Superior Court. She handles serious felonies in criminal trial sessions and complex civil disputes in the Business Litigation-1 Session. She also is a member of the Executive Board of the American Bar Association’s Center for Human Rights, the Advisory Board of UMass Law School’s Justice Bridge, and a Criminal Justice Task Force chaired by Professor Deborah Ramirez of Northeastern Law School. Prior to her 2016 appointment to the bench, Judge Green was a litigation partner at WilmerHale.
by Eric A. Haskell*
This article represents the opinions and legal conclusions of its author and not necessarily those of the Office of the Attorney General. Opinions of the Attorney General are formal documents rendered pursuant to specific statutory authority.
On February 6, 2009, eight days after then-associate Justice Ralph Gants joined the Supreme Judicial Court, the court heard argument in Commonwealth v. Silva-Santiago, an appeal from a murder conviction in which the defendant challenged the reliability of photographic arrays that had led several eyewitnesses to identify him as the killer. Although not apparent at the time, Silva-Santiago marked the first step of an effort that would transform the relationship between scientific knowledge and the law of identification evidence in Massachusetts. That effort was the work of Chief Justice Gants, and it forms a remarkable part of his legacy.
The rudiments of that effort were visible in Justice Gants’s opinion for the court in Silva-Santiago, which was released later that spring. That opinion rejected the defendant’s contention, for which there had been expert evidence at trial, that the identifications were unreliable and should not have been admitted into evidence because the photographs used in the arrays were shown to the eyewitnesses simultaneously rather than sequentially. Citing two law review articles and an article published by the American Psychological Association, Justice Gants acknowledged a “debate among scholars and practitioners [as to] whether the sequential showing of photographs leads to greater accuracy” over a simultaneous showing, and concluded that, “[w]hile that debate evolves,” identifications produced through either procedure would be admissible.
This rationale was both curious and significant. The legal issue in Silva-Santiago was whether the identifications were so “unnecessarily suggestive” as to offend due process. Why look to an academic debate to resolve that legal issue, especially when expert evidence bearing on the answer was present in the record? And why seek conclusiveness in that academic debate before declaring an answer as a matter of law? In retrospect, Justice Gants’s reasoning in Silva-Santiago hinted at his ambition to align the law with the science behind identification evidence.
Two years later, in Commonwealth v. Walker, Justice Gants wrote for the court to again reject the argument that the court had rejected in Silva-Santiago. But Justice Gants’s opinion in Walker also took the next step: characterizing identification evidence as “the greatest source of wrongful convictions but also an invaluable law enforcement tool in obtaining accurate convictions,” it announced that a study group would be charged, among other things, with considering a new model jury instruction on “evaluating eyewitness testimony.
The SJC had adopted a model instruction on identification evidence in 1979, and had periodically modified it thereafter. That instruction exhorted the jury, when evaluating whether the government had proven the defendant’s identity as the perpetrator, to take into account certain abstract and neutral considerations such as the identifying eyewitness’s opportunity to observe the perpetrator, the circumstances surrounding the identification, and the eyewitness’s overall credibility.
The study group created after Walker returned its report in the summer of 2013. The report urged the SJC to take “judicial notice” of certain “psychological principles” concerning the mechanisms of memory and recall, as well as of factors that were said to diminish the reliability of those mechanisms. It also proposed a new jury instruction that, beyond reciting abstract considerations, would instruct the jury as to many of the same scientific principles and factors of which judicial notice was urged.
It is important to appreciate the nature of the study group’s proposal. Juries, of course, deal with science all the time, in the form of expert evidence that the court has deemed likely to be helpful in determining the facts of the particular case. But what the study group proposed was qualitatively different: its proposal was, in effect, to adopt certain scientific knowledge as legal precepts to be applied in all cases. That the scientific principles urged by the study group were well-established in the literature perhaps obscured a lurking tension: while scientific knowledge is factual in nature, iterative, and falsifiable, jury instructions are legal in nature, immutable, and to be accepted by the jury as true.
Justice Gants was promoted in the summer of 2014 and, on September 2 of that year, presided over his first arguments as Chief Justice. Featured on the calendar that day were four appeals concerning aspects of eyewitness identification. Chief Justice Gants wrote the opinion of the court in each of them.
Three of those opinions invoked and relied upon the science urged by the study group. But it was the fourth opinion, in Commonwealth v. Gomes, that transformed the relationship between the science and the law of eyewitness identification evidence, for Gomes presented the issue of what jury instruction ought to be given concerning such evidence.
In Gomes, Chief Justice Gants adopted a highly modified version of the study group’s proposal. The resulting jury instruction, which was appended to the Gomes opinion, continued to exhort the jury to consider things such as the witness’s opportunity to view the perpetrator and the quality of the witness’s perception. But it additionally limned a three-stage scientific “process of remembering,” and identified situation-specific factors—such as “the visible presence of a weapon . . . if the crime is of short duration,” “high levels of stress [felt by the eyewitness], compared to low to medium levels,” and “information the [eyewitness] received between the incident and the identification, as well as after the identification”—that, juries were to be instructed, would diminish the reliability of the identification. Chief Justice Gants explained that it was appropriate to incorporate these precepts into the “judge’s instructions of law, which the jury generally must accept,” because “there is a near consensus in the relevant scientific community . . . .”
The Gomes instruction represented an unprecedented infusion of scientific principles into the judge’s instructions of law. But it could not be said to perfectly align the science with the law because, as noted, science is dynamic and is susceptible of being disproven. Chief Justice Gants was mindful of these limitations, acknowledging that “even a principle for which there is near consensus is subject to revision based on further research findings, and that no principle of eyewitness identification should be treated as if set in stone.” Anticipating the possibility that the principles embodied in the Gomes instruction might be disputed or overtaken by later research, his opinion authorized litigants to offer expert evidence to challenge, and potentially supersede, the instruction. And, acknowledging that, “as the science evolves, we may need to revise our new model instruction,” his opinion reconstituted a committee on eyewitness identification to monitor the development of the science and recommend updates.
The influence of Chief Justice Gants’s efforts to align the law with the science of identification evidence is visible in later SJC decisions that:
- Presumptively required an instruction that “people may have greater difficulty in accurately identifying someone of a different race than someone of their own race,” unless all parties agreed that no such instruction is appropriate;
- Going beyond identification evidence, deemed advances in scientific understanding of the “shaken baby syndrome” as potential grounds for granting a new trial; and
- Looked to “the latest advances in scientific research on adolescent brain development and its impact on behavior” to inform the definition of cruel and unusual punishment vis-à-vis late-teenaged offenders.
Chief Justice Gants’s efforts on this score not only changed the law, they changed the relationship between science and the law in the Commonwealth. As the influence of these changes continues to reverberate, they showcase Justice Gants’s wisdom in recognizing both the promise and the limitations of science in helping to improve justice.
Eric A. Haskell is an Assistant Attorney General whose practice encompasses both civil and criminal matters. He recalls fondly his argument before Chief Justice Gants in Boston Globe Media Partners LLC v. Chief Justice of the Trial Court, No. SJC-12681. That argument lasted approximately forty minutes, despite having been scheduled for fifteen—and it was not the longest argument presented in that case that morning!
*This article represents the opinions and legal conclusions of its author and not necessarily those of the Office of the Attorney General. Opinions of the Attorney General are formal documents rendered pursuant to specific statutory authority.
 453 Mass. 782 (2009).
 460 Mass. 590 (2011) (“[I]t is still too soon to conclude that sequential display is so plainly superior that any identification arising from a simultaneous display is unnecessarily suggestive and therefore must be suppressed.”).
 Commonwealth v. Rodriguez, 378 Mass. 296 (1979).
 Commonwealth v. Cuffie, 414 Mass. 632 (1993); Commonwealth v. Santoli, 424 Mass. 837 (1997); see also Commonwealth v. Pressley, 390 Mass. 617 (1983).
 See generally Mass. G. Evid. § 702.
 Commonwealth v. Crayton, 470 Mass. 228 (2014); Commonwealth v. Collins, 470 Mass. 255 (2014); Commonwealth v. Johnson, 470 Mass. 389 (2015).
 470 Mass. 352 (2015).
 Commonwealth v. Bastaldo, 472 Mass. 16 (2015).
 Commonwealth v. Epps, 474 Mass. 743 (2016).
 Commonwealth v. Watt, 484 Mass. 742 (2020).
by Chief Justice Judith Fabricant
Voice of the Judiciary
Ralph Gants took the oath as a judge of the Superior Court on November 12, 1997. At age 43, he had outstanding educational achievements and an extensive background in high-level federal law enforcement and large firm practice, but relatively little experience in the more rough-and-tumble environment of state court. His new colleagues were ready to welcome him as we do everyone who joins us. At the same time, some may have wondered what mindset he would bring, and how he would make the transition. Chief Justice Robert Mulligan conducted Ralph’s induction ceremony on November 13, 1997, in the high-rise building on Thorndike Street in Cambridge later known as the Edward J. Sullivan Courthouse. The Chief recited the standard induction speech, pledging to our new colleague “our collective and individual fellowship, assistance and cooperation,” and reciting that “each of your colleagues stands ready to assist you in any way you may need, and we know that we can depend on your help when we need it.”
I never had occasion to talk with Ralph about that ceremony, but I know that he heard those words and took them seriously – or that his natural inclinations led him to do exactly what those words call for. When I was ill for several months, he called regularly, and sent me his favorite novels, which provided comfort through both the mental diversion of reading and the expression of his caring. When the media criticized any judge’s decision, Ralph was among the first to call. Long before we had our current structured orientation program, Ralph would offer new judges support and consultation, including the fruits of his remarkably well-indexed resource library. Ralph would consult colleagues as well, always doing his own research first, so that his questions reflected full awareness of established law and focused on what remained open to interpretation or discretion.
From the beginning, Ralph recognized the value of showing up, in times of celebration and fellowship, as well as times of loss. He came to retirement receptions, birthday parties, wakes, and funerals, not just for judges, but also for assistant clerks, court officers, court reporters, and others who were part of our day-to-day work family. He played softball; recited baseball statistics; told funny stories at his own expense; sang silly songs; asked about family members; and, more generally, was good company.
He did all of that while handling the most challenging cases in every field, civil and criminal, jury and non-jury, all smoothly and skillfully. His opinions were thorough, scholarly, wise, and witty, sprinkled with references to sports, classic movies, and Broadway musicals. He wrote a lot, but his writing never carried a whiff of showing off. He wrote to grapple with complex issues, to explain his reasoning, and to assure the parties that he had heard and considered their positions. When writing would not serve those purposes, he would instead announce decisions orally from the bench, with remarkable clarity and organization, in the manner pioneered by Martha Sosman.
Ralph’s collegiality, along with his humility and good humor, quickly earned him good will, while his towering intellect and conscientious devotion to the law earned him universal respect. He needed both, because from very early in his tenure, Ralph demonstrated his independence, his systemic thinking, and his willingness to express his views to those in positions of power without concern for consequences.
Ralph had no fear of public criticism, or of reversal. When he found that police errors required dismissal of a charge, or that a police witness’s misrepresentation required suppression of evidence, he said so unequivocally, and sent a copy of his findings to the police commissioner. When presented with expert testimony about a sex offender, he found and read the scientific literature himself, surely cognizant that reversal might follow, as it eventually did. He enjoined thousands of mortgage foreclosures founded on predatory loans, knowing there was little precedent for his ruling, but believing it was right. As Ralph himself acknowledged at his swearing-in to the SJC in 2009, these decisions put his nomination at some risk. He accepted that risk.
Ralph also had no fear of court hierarchy. When he arrived at his first assignment in Middlesex County in 1997, he brought his own laptop computer, just as the court was beginning to issue standard equipment, with standard policies for its use. Barely two years into his judicial service, he sent a letter to the then Chief Justice proposing a process of setting goals and objectives for such matters as case management, long-range planning, and legislation. In 2002, when court leaders announced measures to manage a budget crisis, Ralph wrote a series of eloquent, respectful, and persuasive letters explaining why those measures were misguided. In about 2005, when he sat for the first time in the Suffolk First Criminal session, he proposed to the Regional Administrative Justice a comprehensive revamping of case-flow processes.
From my current perspective as Chief, I can easily see how Ralph’s constant suggestions for improvement might have ruffled feathers, especially early in his tenure. But that was not the reaction he elicited. To the contrary, colleagues and court leaders loved and valued him, even though the court did not always adopt his ideas. I attribute that to his humility. Ralph never thought he was smarter or more capable or more committed than anyone else, although many of us thought he was. He respected all of us, and sought to enable all of us together to serve the public as well as we possibly could.
After Ralph left the Superior Court in early 2009, he came back regularly to speak at our educational conferences and at what we call “New Judge School.” He seemed to feel that he was coming home, and we felt that we were welcoming a returning family member. One tip he gave, which I try to pass on, was this: If the law seems to be telling you to do something absurd, don’t do it. Think longer. Consult others. Find a solution that makes sense.
Ralph showed us a way to think about the law so that it makes sense, and it serves. His memory is a blessing to all of us and to the public.