Our Steadfast Commitment to Justice

by Martin Murphy

President’s Page

For lawyers—indeed, for anyone who values the rule of law, cares deeply about civil rights, and envisions our legal system as a force to protect the most vulnerable among us—September 2020 was an extraordinarily cruel month. On September 14, we were shocked and deeply saddened to learn of the sudden death of Supreme Judicial Court Chief Justice Ralph D. Gants. And only four days later, Supreme Court Associate Justice Ruth Bader Ginsburg, finally lost her long battle with pancreatic cancer.

The next issue of the Boston Bar Journal will be dedicated to Chief Justice Gants and his legacy. I’ll have much more to say there about his loss, which so many of our members felt deeply and personally.

But as I write this—less than two weeks after Election Day, and only a few days after the BBA’s 2020 Annual Meeting—my thoughts turn to a New Yorker essay paying tribute to Justice Ginsburg, written by our Annual Meeting keynote speaker, Harvard history professor Jill Lepore. Professor Lepore summed up Justice Ginsburg’s life this way: “Aside from Thurgood Marshall, no single American has so wholly advanced the cause of equality under the law.” One example: Justice Ginsburg’s dissent in Shelby County v. Holder , criticizing the Court’s decision to read the critical pre-clearance provisions of the Voting Rights Act of 1965 out of the statute. “Throwing out pre-clearance when it has worked and is continuing to work,” Justice Ginsburg wrote, “is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Justice Ginsburg’s opinion quoted Martin Luther King’s familiar statement: “the arc of the moral universe is long, but it bends toward justice.” But, as Professor Lepore pointed out, when Justice Ginsburg read her dissent in open court, she added her own coda: “The arc of the moral universe is long,” she said, “but it bends toward justice if there is a steadfast commitment to see the task through to completion.” (You can hear Justice Ginsburg read her dissent here).

A “steadfast commitment to see the task through to completion” has long been part of the BBA’s DNA. Living up to that commitment remains as important now as ever.

At the end of May, we watched in horror as George Floyd called out “I can’t breathe” over and over and over. In the weeks and months that followed, we saw the possibility of a national reckoning on the question of race—and the prospect that here in Massachusetts we might take concrete steps to ensure that all police officers protect and serve everyone, including Black men and women and other people of color. The BBA’s Task Force on Police Accountability—chaired by former Suffolk County District Attorney Ralph Martin, now General Counsel of Northeastern, and Natashia Tidwell, a partner at Saul Ewing and the Court-appointed monitor in the Ferguson case—is hard at work on this issue, and we believe the BBA can make a meaningful contribution to public debate.

As the election approached, the BBA sponsored programs that trained dozens of volunteers to protect voters’ rights as we prepared for what we expected—for good reason—would be one of the most contentious elections in our lifetimes.

BBA programs also trained dozens more to represent the many tenants affected when the eviction moratorium was lifted in October, and we are assisting the Governor’s Office and legal-services stakeholders in their Eviction Diversion Initiative—all to try to prevent a tsunami of evictions and resulting surge in homelessness.

And at our Annual Meeting last week, I was honored to present the BBA President’s Award to the many lawyers who put aside the personal challenges we all faced when the pandemic hit to think, not of themselves, but about the more than 14,000 individuals detained at Houses of Correction and prisons—thousands of whom had not yet been convicted of any offense. Their work changed the standard for release of non-violent offenders (something the BBA has long advocated), secured mandatory COVID-19 testing for individuals detained on civil immigration charges at the Bristol County House of Correction, and led to the release of thousands of individuals.

But, as recent COVID-19 outbreaks in the Essex County jail and at the MCI-Norfolk state prison remind us, much work remains to be done on this issue. So too does much work remain on the BBA’s other priorities: ensuring police accountability, addressing the school to prison pipeline, supporting civil legal aid (particularly following the end of the eviction moratorium), protecting the rule of law, among others. And, most of all, much more work remains if we are to be serious about dismantling the system of structural racism that that has worked itself so deeply into the fabric of our country and its laws.

I know I speak for my predecessors, for the BBA’s volunteer leaders, and for its extraordinary staff, when I say that I am optimistic—indeed, confident–that our members will meet Justice Ginsburg’s challenge and continue to prove their steadfast commitments to each of these tasks.  

Marty is a partner at Foley Hoag LLP where he represents individuals, companies, educational institutions, non-profits, and law firms in complex civil litigation, criminal investigations, and regulatory proceedings. He is President of the BBA and has chaired a number of BBA Committees, including the COVID-19 Response Working Group, Immigration Working Group, Working Group on Criminal Justice Reform, Death Penalty Working Group and the Task Force to Prevent Wrongful Convictions.


In the Matter of a Grand Jury Investigation, 485 Mass. 641 (2020)

by Victor Hansen

Case Focus

In one of his last opinions before his untimely passing, Chief Justice Ralph Gants addressed the unique and important responsibility of the criminal prosecutor to do justice.  In fulfilling this responsibility, the prosecutor acts not as an extension of law enforcement but as an important check against corrupt and abusive practices.  These reminders came in the Matter of a Grand Jury Investigation involving two police officers (the petitioners) who admitted filing false police reports regarding the use of force by a fellow officer.

While on duty, the petitioners observed, but did not participate in, the arrest of a citizen charged with, among other things, resisting arrest.  The arresting officer, Michael Pessoa, claimed that the arrestee was noncompliant and threatening, and that force had to be used to subdue him, as a result of which the arrestee was injured.  The petitioners supported Pessoa’s version when they completed an internal departmental report of the arrest.  However, video evidence revealed that the arrestee had not resisted.  Rather, Pessoa had struck the compliant arrestee with his head and shoulder, knocking the arrestee to the ground “in a violent manner.”

During an ensuing grand jury investigation into Pessoa’s conduct, the petitioners testified under grants of transactional immunity and admitted to lying in their departmental reports.  The district attorney sought permission from the Superior Court to disclose this information to criminal defendants in other cases where the petitioners could be potential witnesses, asserting that due process required the disclosure of this potentially exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972).  The petitioners sought to prevent the disclosure of their testimony.

In its decision, the Supreme Judicial Court addressed three questions: (1) whether Brady requires disclosure of this information in unrelated cases; (2) whether, if there is such an obligation, the district attorney could disclose the evidence even if it was obtained pursuant to a grant of immunity and order to testify before the grand jury; and (3) whether, if there is a Brady obligation, the prosecutor must seek prior judicial approval before disclosing the evidence.  The Court concluded that the prosecution had an obligation to produce the discovery at issue without a court order.  Writing for the Court, Chief Justice Gants powerfully reaffirmed that prosecutors do not serve a narrow constituency and are not merely an arm of law enforcement. Rather, the prosecution has the unique and important responsibility to seek justice.

First, the Court took a broad view of the type of evidence that falls within the scope of Brady. Brady covers not merely direct evidence of a defendant’s possible innocence, but equally information that challenges the credibility of key prosecution witnesses (the type of evidence at issue in this case).  The Court also noted that the prosecution’s disclosure obligations are broader than Brady, the Massachusetts Rules of Criminal Procedure, and the Rules of Professional Conduct require prosecutors to disclose all evidence or information that tends to negate the guilt of the accused or mitigate the offense.  The Court thus included within Brady not only the constitutional obligation to disclose exculpatory information but also the broader obligation to make disclosure under Massachusetts rules.

Second, the petitioners argued that the failure to disclose this evidence in other criminal cases would not automatically require new trials in those cases because, even if a defendant were convicted, the information is not exculpatory.  The Court rejected this argument for two reasons: it reflected a too narrow view of the scope of a prosecutor’s Brady obligation, and because such an approach would encourage prosecutors to game the system and only consider how much exculpatory information they could safely withhold. Chief Justice Gants reminded us that we expect more from prosecutors than gamesmanship: rather than operating close to the ethical sidelines, prosecutors must operate in the middle of the field.  According to the Chief Justice, “once the information is determined to be exculpatory, it should be disclosed – period.” And if the prosecutors are at all in doubt about the exculpatory nature of the evidence, they should err on the side of caution and disclose it.

Applying this standard, the Court had little difficulty determining that, when police officers lie in official reports, such information is exculpatory and must be disclosed to any criminal defendant in whose case those officers may testify.

The petitioners also argued that the immunity grant they had received in exchange for their grand jury testimony should be applied broadly.  They contended that, if their falsehoods were disclosed to defendants in other cases, it would penalize the police officers for invoking their privilege against self-incrimination and violate the protections they received from the immunity grant.  The Court concluded, however, that, while the evidence was compelled, that did not affect the prosecutors’ Brady obligations.  Even though the disclosed exculpatory information might paint the petitioners in a bad light and reveal their “dirty deeds,” the grant of immunity protected the petitioners only from prosecution and not embarrassment. Chief Justice Gants reminded prosecutors that complying with their Brady obligations might be inconvenient, uncomfortable, embarrassing or worse, but that prosecutors cannot fail to disclose Brady material out of a misplaced sense of duty or loyalty to law enforcement, or to prevent embarrassing themselves or members of their office, public officials or potential witnesses.  Although avoiding needless or gratuitous embarrassment is worthwhile, that interest never outweighs a criminal defendant’s due process rights. Disclosure is always the correct choice, even when it may have a short term impact on the relationship between prosecutors and others, including law enforcement officials.

Finally, the Court addressed whether prior judicial approval is required before disclosing Brady material that was part of a grand jury proceeding.  The Court again referred to the duties of the prosecutor.  While maintaining grand jury secrecy is important, the Massachusetts Rules of Criminal Procedure governing grand jury secrecy provide that prosecutors may disclose matters occurring before the grand jury doing so is within the official performance of their duties. Just as prosecutors have an official duty to present inculpatory evidence to a grand jury, they have an equally important duty to disclose exculpatory information that may enable defendants to prove their innocence.  Accordingly, the prosecution can disclose this Brady information without a court order as part of their official duties. Chief Justice Gants again emphasized that prosecutors represent not an ordinary party, but of a sovereignty whose obligation is to govern impartially.

Many familiar with the role and functions of the prosecutor may not find the Court’s ruling surprising. The ethical and constitutional obligations of the prosecutor are broad and, to its credit, the lawyers in the district attorney’s office recognized those obligations and proactively complied with them.  One might wonder, then, why Brady violations continue to be a persistent problem in the criminal justice system, both nationally and in Massachusetts. Indeed, one of the most egregious Brady violations in the Commonwealth’s recent history occurred not long ago, when prosecutors failed to disclose the breadth of an Amherst drug lab technician’s substance abuse problems, which affected many hundreds of criminal cases.

The reasons why Brady violations persist are complicated and varied, including confirmation bias, the difficulty of prosecutors policing themselves, the desire of prosecutors to have good working relationships with law enforcement, job security, and even racial bias.  It is a fitting testament to Chief Justice Gants’ legacy that he clearly recognized that none could outweigh a criminal defendant’s right to a fair trial. The Chief Justice’s opinion serves as a poignant and important reminder that our criminal justice system is far from perfect, and that prosecutors, when they are motivated and guided by a sense of doing justice, have a critical role to play to ensure it is just.

Professor Victor M. Hansen, Professor of Law, directs the Criminal Practice and Procedure certificate program and teaches Criminal Law, Criminal Procedure, Evidence, and Prosecutorial Ethics at New England Law | Boston. He is the author of several articles and books on criminal and military law, evidence, and national security issues, and is an elected member of the American Law Institute.