On July 29, 2016, the Supreme Judicial Court decided Commonwealth v. Wade, 475 Mass. 54 (2016), which defined the reach of the DNA testing statute, General Laws Chapter 278A, enacted in 2012. Wade presented two key issues. First, could Wade obtain post-conviction DNA testing under Chapter 278A by demonstrating that the requested scientific/technical analysis had not yet been developed at the time of conviction without also proving the primary reason that DNA testing was not pursued at the time of trial? Second, by filing a request for DNA testing under Chapter 278A, did Wade waive the attorney-client privilege over his communications with trial counsel about DNA testing, thus permitting the judge hearing his Chapter 278A motion to require Wade’s trial lawyer to testify about those privileged communications? The SJC decided both issues in favor of Wade. In doing so, the SJC ensured that Chapter 278A would fulfill the legislature’s purpose of making DNA testing more readily available to those convicted of crimes who assert their innocence.
In 1997, Robert Wade was convicted of felony-murder where the underlying felony was aggravated rape. Wade did not seek DNA testing at the time of trial. When the Legislature enacted Chapter 278A in 2012, Wade promptly filed a motion under the new law (the “278A motion”) seeking post-conviction DNA testing of some physical evidence introduced at his trial.
The Legislature promulgated Chapter 278A “to remedy the injustice of wrongful convictions of factually innocent persons by allowing access to analyses of biological material with newer forensic and scientific techniques.” Wade, 475 Mass. at 55. Chapter 278A allows a person who has been convicted of a crime and who claims that he or she is factually innocent of the offense to seek forensic or scientific testing, including DNA testing, of evidence or biological material. To succeed, the movant must show that (1) the requested analysis would be admissible in court, (2) the analysis has the potential to result in evidence material to the person’s identification as the perpetrator of the crime, and (3) the evidence or biological material has not been subjected to the requested analysis on account of one of five grounds outlined in Section 3(b)(5) of Chapter 278A. Those grounds are:
(i) that the requested analysis had not been developed at the time of the conviction;
(ii) that the results of the requested analysis were not admissible at the time of the conviction;
(iii) that the movant and his or her trial attorney were not, and had no reason to be, aware of the existence of the evidence or biological material at the time of the underlying case or conviction;
(iv) that the movant’s trial attorney was aware of the evidence, the results of the requested analysis were admissible at the time of trial, a reasonably effective attorney would have requested the analysis, and either the movant’s attorney failed to do so or the court denied the request; or
(v) that the evidence or biological material was unavailable at the time of the conviction.
Under Section 7(b) of Chapter 278A, the court “shall” allow the requested analysis if the movant shows, among other things, that DNA testing had not been performed “for any of the reasons” enumerated in Section 3(b)(5).
In an earlier appeal of an order denying Wade’s 278A motion at a preliminary stage of review (Commonwealth v. Wade, 467 Mass. 496 (2014)), the SJC concluded that Wade had adduced enough information in the motion to meet the law’s threshold requirements and remanded the case to the trial court for an evidentiary hearing to determine, among other things, whether Wade could establish one of the five Section 3(b)(5) grounds enumerated above. Wade, 475 Mass. at 57-58. In the proceedings on remand, which led to the 2016 SJC decision, Wade initially claimed that two of the Section 3(b)(5) grounds entitled him to DNA testing: first, the requested analysis had not been developed at the time of the conviction (the “undeveloped analysis” argument) and, second, Wade’s trial lawyer had not sought DNA testing and a reasonably effective lawyer would have done so (the “reasonably effective attorney” argument).
Before the hearing on remand, the Commonwealth moved for leave to examine Wade’s trial counsel on the question of whether a “reasonably effective attorney” would have sought the requested testing at the time of trial. Wade opposed such testimony, asserting his attorney-client privilege. The trial court allowed the Commonwealth’s motion. Wade petitioned for relief before a single justice, who determined that examination of Wade’s trial counsel could proceed if trial counsel could testify “without revealing attorney-client communications.”
At the hearing on the 278A motion, the Commonwealth examined Wade’s trial lawyer. Wade again objected on privilege grounds. When Wade’s privilege objection was overruled, Wade waived his claim under the reasonably effective attorney prong and proceeded solely on the undeveloped analysis argument. Despite Wade’s abandonment of the reasonably effective attorney argument, the Commonwealth questioned Wade’s trial counsel about privileged pre-trial conversations with Wade concerning the reason for not pursuing DNA testing, arguing that even when a movant like Wade seeks relief solely on the undeveloped analysis argument, the “actual reason that the evidence was not tested” must be adduced, which can be done through the questioning of trial counsel. Wade, 475 Mass. at 59.
The motion judge agreed with the Commonwealth and required Wade’s trial counsel to reveal the substance of his pre-trial conversations with Wade about the crime and the wisdom of seeking DNA testing. The judge denied Wade’s subsequent motion to strike the privileged testimony and ultimately relied on that testimony, in part, to reject Wade’s request for DNA testing. Even though the motion judge found that Wade was correct that the requested analysis had not been developed at the time of conviction, the court rejected the claim that this was enough to satisfy Section 7(b). Rather, the judge concluded that “the proper inquiry” under Section 7(b) is “‘what was the primary “reason,” i.e., the primary cause, why the material was not previously subjected to the requested analysis.’” Wade, 475 Mass. at 59 (quoting the trial court). Although the motion judge found that Wade was correct that more sophisticated DNA tests were available in 2014 than were available at the time of trial, he concluded that the absence of such precise testing was not the “primary” reason Wade didn’t request a DNA test at that time. Instead, despite the fact that Wade had abandoned his argument under the reasonably effective attorney prong, the motion judge concluded that the primary reason DNA testing was not sought at trial was because a reasonably effective attorney would not have sought the requested analysis under the circumstances and, thus, Wade had not satisfied this Section 3(b)(5) factor.
On appeal to the SJC, Wade argued that he had satisfied Chapter 278A’s requirements and that the Superior Court had improperly intruded upon his privileged attorney-client communications. The BBA, which had advocated for the statute’s passage, agreed and filed an amicus brief in support of these arguments.
As to Chapter 278A, Wade argued that the motion judge misread the statute and that the showing Wade had made – namely, that the requested analysis had not been developed at the time of the conviction – was enough by itself to satisfy the requirements of Section 3(b)(5). The trial judge erred, Wade argued, by requiring Wade to establish the primary cause for not pursuing testing at the time of trial. Because the sole issue was why the evidence had not been subjected to the analysis requested in the 268A motion (which did not exist at the time of trial), Wade argued that it was irrelevant why his counsel did not seek a prior form of DNA testing at the time of trial and whether not seeking such testing was a reasonably effective strategy. Furthermore, Wade had expressly abandoned his reasonably-effective attorney argument, making any inquiry of his trial counsel irrelevant. Wade asserted that the trial court’s mistaken reading of Chapter 278A increased the burdens on a person seeking DNA testing under Chapter 278A on an undeveloped analysis claim by requiring a movant to place privileged communications with trial counsel at risk, thereby undercutting the legislative purpose to reduce the barriers to DNA testing. On the issue of privilege, Wade argued that requiring Wade’s trial counsel to reveal highly confidential, attorney-client communications was a grave error, as there was no express or implied waiver of the privilege by Wade under the facts of this case and none required under Chapter 278A itself.
The SJC’s Decision
The SJC agreed with both of Wade’s core arguments.
The SJC found that the Legislature’s goal in enacting Chapter 278A was “to remedy the injustice of wrongful convictions of factually innocent persons by allowing access to analyses of biological material with newer forensic and scientific techniques . . . [to] provide a more reliable basis for establishing a factually correct verdict than the evidence available at the time of the original conviction,” that Wade’s satisfaction of the undeveloped-analysis prong of Section 3(b)(5) alone was enough to merit relief under the statute and that the motion judge erred by requiring Wade to also show that this reason was the primary reason trial counsel did not seek DNA testing. Wade, 475 Mass. at 55.
The SJC found that a plain reading of Chapter 278A demonstrated that any one of the reasons enumerated in Section 3(b)(5) sufficed to satisfy the statute, as “[t]he language of the act plainly indicates the Legislature’s intent to provide a moving party with a choice among several, distinct reasons advanced by the moving party to explain why the material had not been previously subjected to the requested testing.” Wade, 475 Mass. at 61. As a result, there was no need for Wade to also show what a reasonably effective lawyer would have done.
The SJC also rejected the motion judge’s finding that a movant, in addition to proving one of the Section 3(b)(5) grounds, must also establish the “primary” or “actual” reason testing was not conducted at the time of the original prosecution. It found nothing in the act to suggest that the Legislature sought to impose such a burden on movants. The fact that the now-requested analysis did not exist at the time of Wade’s trial, alone, was enough to support Wade’s request. The SJC also noted that its 2014 Wade decision had foreclosed the argument that a party would be precluded from obtaining DNA testing under Chapter 278A if his or her trial counsel made a strategic choice not to seek DNA testing. Because even the reasonably effective attorney inquiry was objective, the actual reason a movant’s trial lawyer did not seek testing was irrelevant the analysis of any of the factors under Section 3(b)(5).
As to the privilege issue, the SJC rejected the Commonwealth’s contention that seeking a DNA test under Chapter 278A necessarily waives a movant’s attorney-client privilege with his or her trial counsel. Certainly, Wade’s reliance on a wholly objective ground – whether the requested DNA analysis existed at the time of his trial – did not put at issue any privileged attorney-client communications. Perhaps more significantly and as noted, the SJC found that even in cases where a party relies on the reasonably-effective-attorney prong, “that inquiry is also objective, and therefore does not require testimony or an affidavit from trial counsel.” Wade, 475 Mass. at 65. Finally, and regardless of the Section 3(b)(5) prong relied on, the 278A movant is not required to establish the “real” or “primary” reason testing was not sought at the time of trial, and thus it is error to invade the privilege in pursuit of that inquiry. Because Wade had not effected an “at issue” waiver by filing his petition, the SJC concluded that the trial court should have allowed Wade’s motion to strike all privileged communications disclosed by trial counsel.
The SJC’s decision in Wade restored the goal of Chapter 278A – to make DNA testing more readily available to convicted persons than it had been. Further, its clear rejection of the claim that filing a 278A motion necessarily waives the attorney-client privilege with trial counsel eliminates a major impediment to convicted persons seeking relief under Chapter 278A and prevents an improper invasion into the privilege.
Michael D. Ricciuti is a partner at K&L Gates where he co-leads K&L Gates’ global Government Enforcement practice. He is a member of the Boston Bar Association’s Council and Steering Committee for the Criminal Law Section and previously served as Secretary of the Boston Bar Association.
Kathleen D. Parker is an associate at K&L Gates where her practice focuses on complex civil litigation, internal investigations, and government enforcement.
Patrick C. McCooe is an associate at K&L Gates where he concentrates his practice in government enforcement, white collar criminal defense, and complex civil litigation.
The authors drafted and filed the BBA’s amicus brief on behalf of Wade before the Supreme Judicial Court.