Truth and Justice with Capital Letters

by Hon. Margaret H. Marshall and Marina Pullerits

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.[1] 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.

[1] 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.


Aligning Science and Law in the Realm of Eyewitness Identification Evidence

by Eric A. Haskell*

Legal Analysis

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.[1]  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.[2]  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,[3] and had periodically modified it thereafter.[4] 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.[5]  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.[6] 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.[7]  But it was the fourth opinion, in Commonwealth v. Gomes,[8] 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;[9]
  • Going beyond identification evidence, deemed advances in scientific understanding of the “shaken baby syndrome” as potential grounds for granting a new trial;[10] 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.[11]

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.

[1] 453 Mass. 782 (2009).

[2] 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.”).

[3] Commonwealth v. Rodriguez, 378 Mass. 296 (1979).

[4] Commonwealth v. Cuffie, 414 Mass. 632 (1993); Commonwealth v. Santoli, 424 Mass. 837 (1997); see also Commonwealth v. Pressley, 390 Mass. 617 (1983).

[5] https://www.mass.gov/files/documents/2016/08/ql/eyewitness-evidence-report-2013.pdf.

[6] See generally Mass. G. Evid. § 702.

[7] Commonwealth v. Crayton, 470 Mass. 228 (2014); Commonwealth v. Collins, 470 Mass. 255 (2014); Commonwealth v. Johnson, 470 Mass. 389 (2015).

[8] 470 Mass. 352 (2015).

[9]    Commonwealth v. Bastaldo, 472 Mass. 16 (2015).

[10] Commonwealth v. Epps, 474 Mass. 743 (2016).

[11] Commonwealth v. Watt, 484 Mass. 742 (2020).


Effective Advocacy in a “Virtual” World

by Hon. Hélène Kazanjian

Voice of the Judiciary

We find ourselves during these difficult times trying to operate court business without parties actually coming to court. This is likely the “new normal.” In the short term, while we have begun to open courthouses for some in-person business, the court still encourages virtual hearings for most matters. In the longer term, it is possible that we will continue to handle some court business virtually for quite some time, if not forever.

Courts throughout the Commonwealth have been conducting virtual hearings for several months. It has unquestionably been an adjustment for everyone. Lawyers and judges have had to be flexible and patient as we have grappled with video and audio problems. Many have had to learn how to use virtual conferencing programs such as Zoom. We most certainly have had to keep our sense of humor as the occasional cat, dog, or young child makes a fleeting appearance at a hearing.

In light of these challenges and the limitations of the technology, how can lawyers most effectively advocate for their clients in a virtual environment?

First, it is important that lawyers understand how hearings are being conducted at the courthouses. The short answer is that it differs throughout the Commonwealth because technological capabilities vary. Despite these differences, in all instances, hearings have to be officially recorded, which generally requires the presence of a clerk in the courtroom. Judges will either be physically present in the courtroom or joining the hearing virtually. In some courtrooms, the clerk is able to connect the in-court For the Record (“FTR”) recording system to the virtual platform. Where that technology is not available, FTR will record the sound in the courtroom, which will ordinarily come out of small computer speakers built in or connected to the judge’s or clerk’s laptop.

With this backdrop, here are some suggestions to enhance your ability as lawyers to effectively advocate during a virtual hearing:

  1. Technology, technology, technology: First and foremost, make sure you have working technology. Minimally you need a computer or tablet with a camera, microphone, and speakers. You also need fast and reliable Wi-Fi. It is not ideal to be calling into a hearing from your cell phone. Cell phone callers often cannot join by video or cannot be heard well enough. You also may not be able to see all of the participants on your phone.
  2. Settings: Once you sign into a hearing, make sure the correct microphone is selected on your device. For example, if you are using an external webcam, you have to select the webcam as your operating microphone. The audio settings on your microphone and speakers must be loud enough. In Zoom, there are microphone and audio settings within the Zoom program. That means that in addition to checking the settings on your device, you need to check the program’s audio settings.
  1. Virtual workspace: Make sure you have a workspace that is conducive to a virtual hearing; that is, a place that allows you to participate without distraction. Trying to join a hearing from a cell phone in your car or from a computer in a room where there is other activity is not effective. Look directly at your camera and speak loudly into the microphone. Make sure your background, whether it is real or virtual, is presentable. Likewise, if you use a pin photo, which is an image that appears on your account when you shut down your video feed, make sure it is court appropriate. We know that many of you are juggling a lot. You may be working at home with other family members present who need your attention. That being said, do your best to set aside the scheduled time to focus on the hearing.
  2. Practice: Practice before you appear for your first virtual hearing. Find out in advance if your equipment and Wi-Fi work. Learn how to sign in with both video and audio, and how to adjust the microphone and speaker settings. Because the sound is sometimes better when the parties who are not speaking are muted, make sure you know how to mute and unmute yourself quickly.
  3. Identify yourself: So the record is clear, you should identify yourself each time you speak during the hearing, unless the court addresses you by name.
  4. Documents: If you have documents, pleadings, photographs or other items that you would like to use or “hand” to the judge during the hearing, or if you are planning to offer exhibits into evidence, make sure to get them to the clerk and the other participants in advance. Check with the clerk several days before the hearing about how he or she will accept these items (e.g. email, e-file, mail). Screen sharing can be an effective way to display documents during a hearing. Attorneys should check with the clerk in advance to make sure the host (the judge and/or clerk) is comfortable with that aspect of the technology.
  5. Other participants: In criminal cases, defendants will be present, or virtually present, unless their presence has been waived. Victims, witnesses, clients in civil cases, and members of the public should also be able to attend proceedings virtually, and, in some instances, give testimony. It is advisable to check with the clerk in advance if others want to attend a hearing. Make sure the individuals wanting to attend have the required technology to sign into the virtual call. If you are going to be questioning a witness about documents, pleadings, photographs, or other items, make sure the witness and all parties have copies of those items in advance. Speak to your client and/or witnesses before the hearing about how they should conduct themselves during the hearing so as to not distract from your arguments. It is not helpful to your case if your clients are rolling their eyes or shaking their heads during the hearing.
  6. Breakout rooms: If you and your client are in different locations and you need to speak privately during the hearing, if the court has the capacity you can ask the judge to send you to a virtual breakout room, where you can have a private/unrecorded conversation. This also can be done when multiple lawyers representing a single party or lawyers of different parties want to consult privately during a hearing. Alternatively, parties can mute themselves and briefly communicate with each other off-line.
  1. Demeanor: Conduct yourself in the hearing just as you would if you were in court. Address the judge not the other parties. The usual back and forth is not as easy so be prepared with a short presentation. At the same time, there is sometimes a sound delay, so be aware if the judge is trying to ask you a question. Finally, wear court appropriate attire.

The sudden switch to virtual hearings has required patience and a touch of ingenuity. In the end, virtual hearings can only work if we all accept and adjust to this new way of conducting court business, and if we commit to taking the necessary steps, including technology upgrades and individual training.

 

Judge Hélène Kazanjian has served as an Associate Justice of the Superior Court since 2016. Previously she served as the Chief of the Trial Division at the Massachusetts Attorney General’s Office, and as an Assistant United States Attorney in Washington, D.C. and Maine.  


Categorically Counterintuitive: Pre-Trial Imprisonment Based on Dangerousness

by Reyna M. Ramirez

Case Focus

Dangerousness hearings have huge stakes for defendants: if the Commonwealth proves by clear and convincing evidence that there are no conditions that can assure the safety of the community, a defendant can be incarcerated for up to 120 days in a district court case, or 180 days in a Superior Court case. G.L. c. 276, § 58A. However, pretrial detention based on “dangerousness” is counter-balanced by the presumption of innocence that undergirds our entire criminal justice system, and criminal defendants have recently mounted successful challenges to certain applications of the statute.  This article reviews the challenges, the Supreme Judicial Court’s rulings, and responsive proposed legislation.

“Dangerousness” Hearings Under G.L. c. 276, § 58A

Under General Laws c. 276, § 58A, a court may order pretrial detention of a criminal defendant if the prosecution shows, by clear and convincing evidence, that no conditions of release will reasonably assure the safety of any other person or the community. But the Commonwealth can seek such pretrial detention only if the defendant is charged with: (a) one of several predicate enumerated crimes; (b) a misdemeanor or felony that involves “abuse” (the “abuse clause” of § 58A); (c) a felony that has as an element the use, attempted use, or threatened use of physical force against another (the “force clause”); or (d) a felony that, by its nature, involves a substantial risk that physical force against the person of another may result (the “residual clause”).

The abuse clause defines “abuse” with reference to the definition of abuse contained in Chapter 209A, that is, where the charged crime is against the defendant’s “family or household member,” including somebody who is or has been in a substantive dating or engagement relationship with the defendant, and involves: 1) attempting or causing physical harm; 2) putting others in fear of imminent serious physical harm; or 3) causing another to participate in sexual relations involuntarily through force, threat, or duress (i.e., rape).

The force clause focuses on whether the elements of the charged offense involve the use of force. A “categorical approach” is used to determine whether a non-enumerated felony qualifies as a predicate under the force clause. Commonwealth v. Young, 453 Mass. 707, 712 (2009). This approach assesses the elements of the felony “independent of the particular facts giving rise to a complaint or indictment.” Id. In other words, to determine whether a charge qualifies as a predicate under the force clause, the court asks not whether the defendant’s conduct involved the use of force, but rather whether the elements of the crime necessarily always involve the use of force.

Finally, the residual clause asks whether a felony “by its nature, involves a substantial risk that physical force against the person of another may result.” G. L. c. 276, § 58A.

Commonwealth v. Barnes / Scione v. Commonwealth

In January 2019, the Supreme Judicial Court ruled on the consolidated appeals of David Barnes and William Scione, each of whom had been detained following a finding of dangerousness under § 58A. Scione v. Commonwealth, 481 Mass. 225 (2019). Barnes was charged with statutory rape in violation of G.L. c. 265, § 23A, based on an allegation that he had sexual intercourse with a 15-year-old girl at a hotel after the two met online. Scione, on the other hand, was charged with using an incendiary device in violation of G.L. c. 266, § 102A, based on an allegation that he created a homemade improvised explosive device and placed it at the bottom of the driveway of his former girlfriend’s home (the record indicated that the device could have caused serious harm if it had not failed to explode). Neither of the charged crimes is an enumerated predicate charge under § 58A.

The SJC first ruled that statutory rape under § 23A is not a predicate charge under the force clause. Using the required categorical approach to analyze the elements of statutory rape under § 23A, the SJC observed that the crime requires proof that: (1) the defendant had sexual or unnatural intercourse with (2) a child between 12 and 16 years old where (3) there was a greater than 10-year age difference between the defendant and the child. Thus, force is not a required element of proof for statutory rape. The SJC noted that forcible rape of a child is its own crime under G.L. c. 265, § 22A, and that“[t]he fact that the Legislature saw fit to create two separate statutory rape offenses – one that includes the use of force and one that does not” – supported its decision to find there is no force element with respect to § 23A. Scione, 481 Mass. at 230. Justice Lowy wrote a separate concurrence “because such a counterintuitive result requires further discussion and consideration by the Legislature,” signaling to the Legislature to fix what he termed an “unfortunate” decision mandated “under the law as currently written.” Id. at 239.

The SJC next ruled that statutory rape under § 23A cannot be a predicate charge under the residual clause, because the residual clause is unconstitutionally vague. Scione, 481 Mass. at 230. To reach this conclusion, the SJC relied on the decisions of the United States Supreme Court in Johnson v. United States, 576 U.S. —, 135 S. Ct. 2551 (2015) and Sessions v. Dimaya, 548 U.S. —, 138 S. Ct. 1204 (2018) which, respectively, held that similarly-worded residual clauses in the federal Armed Career Criminal Act and the federal statutory definition of “crime of violence” were each vague because they failed to set out how to determine which crimes triggered the statute’s application. Noting that it had already followed Johnson in interpreting the Massachusetts Armed Career Criminal Act, see Commonwealth v. Beal, 474 Mass. 341 (2016), the SJC ruled that the residual clause of § 58A is unconstitutionally vague under Article 12 of the Massachusetts Declaration of Rights and, therefore, cannot be used to justify dangerousness proceedings in any case.

Turning to Scione’s case, the Court analyzed whether his charge of using an incendiary device under § 102A could trigger a dangerousness hearing under the abuse clause (which, the Commonwealth argued, applied because the alleged victim had previously been in a substantive dating relationship with the defendant). The Court held that, unlike the force clause, the abuse clause does not require use of the categorical approach. The SJC reached this conclusion in part because only one Massachusetts statutory crime—assault and battery on a household member (G.L. c. 265, § 13M)—explicitly includes abuse as an element. Id. at 236. Using statutory interpretation principles to presume that the Legislature intended to act logically, the Court opined that, “had the Legislature intended that only one crime be captured under the abuse clause,” it would have enumerated that crime rather than enact a separate “abuse” clause. Id. Instead, the SJC found, abuse “is best described as a characterization of an action or actions” and, therefore, a judge can look at the details of the defendant’s underlying conduct to determine whether the charge involves abuse. Id. Applying those principles to Scione, the SJC found that his alleged acts of placing a potentially-harmful IED on the property of his former girlfriend indeed involved abuse.

Commonwealth v. Vieira

The SJC’s decision in Barnes paved the way for its October 2019 decision in Commonwealth v. Vieira. 483 Mass. 417 (2019). There, the defendant was charged with indecent assault and battery on a child under 14 years old, in violation of G.L. c. 265, § 13B, based on allegations that he had engaged in sexual activity with a thirteen-year old boy he met online.  Indecent assault and battery on a child under 14 is not an enumerated charge under § 58A, and the Commonwealth sought to treat it as a predicate charge under the force clause.

At the outset of its opinion, the SJC reminded practitioners that “pretrial detention is a measure of last resort,” and that the presumption of innocence always applies. Applying the categorical approach, the SJC observed that indecent assault and battery on a child under § 13B does not have statutory elements, but rather incorporates the common law definition of battery, including to the extent that an assault is simply a threatened or attempted battery. The SJC explained that, at common law, there were three types of battery: (1) harmful battery, involving touching with such violence that bodily harm was likely to result; (2) reckless battery, involving a wanton, willful, or reckless act that results in injury; and (3) offensive battery, requiring “only that the defendant, without justification or excuse, intentionally touched the victim, and that the touching, however slight, occurred without the victim’s consent.” Although the first two types, the SJC found, necessarily involve the use of physical force, offensive battery does not. And, because a court evaluating bail and pretrial detention does not look to whether the charged conduct involves harmful, reckless, or offensive battery, application of the categorical approach means that a statutory crime incorporating all three types of battery does not necessarily always include force. Applying those principles, the SJC concluded that indecent assault and battery under § 14B is not a predicate charge under the force clause of § 58A.

Looking Forward

Two days after the SJC’s decision in Barnes, Governor Charles Baker submitted House Bill No. 66, An Act to Protect the Commonwealth from Dangerous Persons, which sought to change the dangerousness statute to include sex offenses involving children by adding those crimes – along with others – to § 58A’s list of enumerated crimes. This bill retains the force clause but completely removes the unconstitutional residual clause. Adding more enumerated crimes would have the effect of subjecting more individuals to dangerousness hearings and pre-trial detention. However, this approach does not address the issue that battery may not always include force, but commonly does. See, e.g., G.L. c. 265, § 13A (assault and battery). Instead, this legislation only addresses the specifics of the cases the SJC has adjudicated and misses an opportunity to draft legislation that looks forward and targets only the most dangerous of offenses and individuals.

Reyna M. Ramirez is a Partner at Ramirez and Sunnerberg, a criminal defense and prisoners’ rights practice on the South Shore. She is also an Associate at the firm J. W. Carney, Jr. and Associates, where she litigates complex criminal defense cases.


Boston’s Way Forward on Housing

by City Councilor Lydia M. Edwards

Viewpoint

Boston’s economy is thriving. Why then are so many residents of the City and Commonwealth struggling to find and afford housing, remain in the communities they love, become homeowners and build wealth? A shortage of housing that serves the needs of all economic classes and family structures is certainly part of the problem. But simply building across the region will not solve our state’s persistent housing affordability crisis. To house our diverse, growing population, we will need a multi-pronged approach that balances growth and prosperity with protection of all residents during both recession and economic booms and addresses the widening wealth gap that plagues our City and the Commonwealth. As Boston City Council Chair of the Housing and Community Development and Government Operations Committees, my view is that Boston can lead through housing policies that raise revenue for affordable housing, shape new inclusive neighborhoods through planning and zoning that affirmatively furthers fair housing, and stabilize communities through protections against involuntary displacement and equitable opportunities for home ownership.

Revenue for Affordable Housing

With the decades-long decline in  federal funding, localities must look to other sources to finance the preservation and production of housing that is affordable to low- and moderate-income residents. Boston recently passed a home rule petition to collect a transfer fee of up to 2% on high-value real estate transactions that exceed $2 million dollars, subject to exemptions (“Transfer Fee Home Rule”). Enacted, the Transfer Fee Home Rule could generate as much as $169 million per year for affordable housing in Boston, vastly outstripping current  resources at the City’s disposal. Municipalities as different as Somerville, Concord and Nantucket have also  proposed transfer fees to fund their affordable housing, and 38 states and localities already have excise taxes on property sales.

Boston also has a pending home rule bill to authorize the City to update its existing Development Impact Program (“Linkage”) and Inclusionary Development Policy (“IDP”) which are each intended to mitigate the increased demands for affordable housing and job training attributable to large-scale developments. HB 4115. Enacted, HB 4115 would permit the City to make its own decisions to adjust the linkage fees to enable Boston to align more efficiently with changing market conditions and local needs without waiting for approval of the full General Court as currently required by statute; extend the IDP requirements (e.g., to create 13% of development as income-restricted units or contribute equivalent funds) which currently apply only to market-rate housing developments with 10 or more units and are in need of zoning relief, to all large projects regardless of whether zoning relief is needed; and codify the IDP into Boston’s Zoning Code.

Inclusive Zoning and Planning

Several “large projects” subject to Boston’s Article 80 Development Review and Approval process–including the former Suffolk Downs race tracks in East Boston, the Bunker Hill public housing in Charlestown, and the Mary Ellen McCormack public housing in South Boston–provide the City with unprecedented opportunities to shape entire new neighborhoods that provide an inclusive range of housing options to accommodate the City’s diverse population, while disrupting historic concentrations of poverty and patterns of racial and cultural segregation and providing access to employment and training opportunities for affected residents.

For public housing redevelopments, this may mean ensuring that income-restricted units are integrated with the market-rate units, whereas in purely private developments like Suffolk Downs, it may mean planning to ensure sufficient “affordable units” of the right bedroom size to house families and a community benefit agreement to mitigate meaningfully against adverse development impacts and hardships. I have proposed a zoning change for Boston to systematically ensure that all developers undertake deliberate and “meaningful actions, in addition to combating discrimination, that overcome patterns of segregation and foster inclusive communities free from barriers that restrict access to opportunity based on protected characteristics.” This change would amend the text of Boston’s Zoning Code to expressly incorporate our preexisting federal Affirmatively Furthering Fair Housing obligations. Seattle and Portland, for example, already review their plans with a lens for racial equity and displacement risk along with opportunities for economic growth, to inform their choices.

The City also recently strengthened its comprehensive planning under the Climate Ready Boston Initiative by passing an Ordinance Protecting Local Wetlands and Promoting Climate Change Adaptation in the City of Boston to ensure the equitable protection of all residents from the effects of climate change.

Community Stabilization

Boston has been taking aggressive steps to address the chronic housing crisis since October 2014 when the mayor’s Housing Advisory Task Force issued Housing a Changing City: Boston 2030, which was updated in 2018. The original Plan called for the production of 69,000 new housing units by 2030 with specific targets for different affordability levels in an effort to create a more equitable and inclusive City. Beyond production, the City also dedicates funds to support the acquisition and deed-restriction of properties as affordable housing, regulates and restricts short-term rentals, protects against condominium conversions, and supports a right to counsel in eviction proceedings––all measures intended to protect residents, especially long-time, low-income, elderly, and disabled tenants, against involuntary displacement. The City also created the Office of Housing Stability (“OHS”) in 2016, the first of its kind in the nation, to work across City departments and with external partners to promote policies, practices, and programs that are effective in achieving housing stability for tenants at risk of eviction, which is also critical to stabilizing communities like Boston where the majority of the population is renters.

Other high-cost cities also have passed right to counsel legislation, and some states such as Oregon, California and New York are moving towards rent stabilization policies which would allow rent increases but prohibit increases as high as those experienced by many Boston residents. These states, as well as Boston, have also looked to “just cause eviction” policies in efforts to protect tenants current with rent and who otherwise have not broken their lease agreements.

Additionally, to encourage home ownership, Boston has expanded the availability of low-interest loans to moderate-income families through the ONE+ Boston program and approved zoning to allow for accessory dwelling units. Other policies which support resident-controlled housing, such as cooperatives, cohousing and community land trusts; the co-ownership of such housing by residents; and a resident’s right of first refusal  to purchase, would each promote community stability, as well as individual opportunity to gain equity and build wealth.

Conclusion

Boston’s housing affordability crisis is not abating, and our response has not scaled up to protect all residents. With bolder action, we can create lasting stability in neighborhoods and reverse historic patterns of discrimination and dispossession in our real estate market, as well as in zoning and planning decisions. To achieve community stability we need a multifaceted approach to the housing shortage that is responsive to the diverse needs of all residents and to historic inequities and barriers to enabling them to remain in place and housed in their communities of choice.

Lydia Edwards has spent her entire career as an advocate, activist, and as a voice on behalf of society’s most vulnerable. She served as the deputy director within the Mayor’s Office of Housing Stability, as a public interest attorney with Greater Boston Legal Services focusing on labor issues, and she currently represents District One on the Boston City Council. For the 2020-2021 council session, she serves as Chair of the Committees on Housing and Community Development and Government Operations.


Not Just the Facts: Commonwealth v. Walczak Tells Prosecutors When to Instruct Grand Juries on the Law in Juvenile Murder Cases

by Alex Philipson

Case Focus

Philipson_AlexIn the mid-1920’s, in one of America’s most sensational cases of juvenile homicide, teenagers Nathan Leopold and Richard Loeb bludgeoned a neighbor to death in Chicago. At about the same time, a thousand miles away in Boston, the Supreme Judicial Court declared that a prosecutor seeking an indictment should, in appropriate instances, do more than present evidence to the grand jury; he should also give advice on the law. See Attorney Gen. v. Pelletier, 240 Mass. 264, 307 (1922). Nearly a century later, the concerns of these seemingly unrelated cases—juvenile murder and grand jury instructions—came together in ways never before seen in Massachusetts.

In Commonwealth v. Walczak, 463 Mass. 808 (2012), in a plurality opinion, the SJC held that a prosecutor must instruct the grand jury on the law in any case where he or she seeks to indict a juvenile for murder, and where there is substantial evidence of mitigating circumstances or defenses other than lack of criminal responsibility. Specifically, the prosecutor has a duty to inform the grand jury of the elements of murder and the significance of mitigating circumstances or defenses for reducing or eliminating the juvenile’s criminal liability—using the model homicide instructions, modified for grand jury proceedings. In no other case had the SJC ever held that a prosecutor was required to instruct the grand jury on the law absent a request from the grand jury. See Commonwealth v. Noble, 429 Mass. 44, 48 (1999).

Unlike Leopold and Loeb, who set out to commit a thrill killing, Walczak had no intention of killing anyone when, embroiled in a fight with two other teenagers, he allegedly stabbed one of them to death. One night in August, 2010, Walczak, then sixteen years old, agreed to meet the victim and another youth on a street corner to sell them marijuana. The purported buyers had actually planned to rob Walczak of his drugs. When the three met, the victim and his friend told Walczak they were going to take his marijuana, and one poked him in the head. Punches were thrown and Walczak stabbed the victim several times in the neck and torso with a knife, killing him.

The Commonwealth sought and obtained an indictment for murder in the second degree. Walczak moved successfully to dismiss the indictment on grounds of insufficient evidence. See Commonwealth v. McCarthy, 385 Mass. 160 (1982). The judge ruled that the Commonwealth had failed to disprove that Walczak acted on reasonable provocation or sudden combat—mitigating circumstances that negate malice and reduce a homicide from murder to voluntary manslaughter—and that, as a matter of law, the evidence supported at most an indictment for manslaughter.

On appeal by the Commonwealth, the SJC unanimously held that the judge erred: the evidence was sufficient to show probable cause for murder in the second degree; the Commonwealth bore no burden to disprove mitigation in the circumstances; and the grand jury was free to believe or disbelieve the evidence of mitigation. Nothing about those conclusions was particularly surprising. The excitement began when the justices considered an alternative ground for affirming the dismissal of the indictment: the Commonwealth’s failure to instruct the grand jury on the legal significance of the evidence of mitigation—i.e., that if someone kills another based on reasonable provocation or during sudden combat the offense would be manslaughter rather than murder. On the need for these instructions the justices differed markedly, but a plurality concluded that the Commonwealth should have given the instructions.

In dissent, Justice Spina, joined by Chief Justice Ireland and Justice Cordy, argued that, regardless whether mitigating circumstances surround a homicide, the Commonwealth has no obligation to instruct on mitigation absent a request from the grand jury. But according to the plurality opinion, at least where there is “substantial” evidence of mitigation—evidence “so strong” that “concealing it would impair the integrity of the grand jury” because the evidence concealed probably would have influenced the grand jury’s decision about what charge, if any, to indict—the legal significance of that mitigating evidence must be explained. Presumably a reviewing court would examine the facts de novo to decide whether the evidence of mitigation was substantial enough to require the instructions, but Walczak is silent on this point.

Justice Gants, in his concurrence, joined by Justices Botsford and Duffly, thought the instructions should be given in all murder cases, juvenile and adult. For him, what made the instructions necessary were “due process” interests not limited to juveniles.

By contrast, Justice Lenk, who wrote her own concurrence, did not speak in terms of due process. Rather, she thought that what necessitated the instructions were “prudential” concerns arising from the special status of adolescents. For example, unlike an adult, a juvenile indicted for manslaughter rather than murder faces trial in Juvenile Court, which affords special protections for adolescents. That difference, and the generally reduced culpability of minors as compared to adults, were the reasons Justice Lenk thought the instructions were required in juvenile murder cases. But the instructions that Justice Lenk thought essential were those concerning such traditional mitigating circumstances as reasonable provocation and sudden combat; she did not say that a grand jury should also be instructed that a juvenile’s youth itself constitutes a mitigating circumstance. (She did think that, in addition to instructions on mitigating circumstances, the grand jury should be told that a juvenile indicted for murder would be tried in Superior Court, but she was alone in that view.) For purposes of resolving Walczak’s case, Justice Lenk, unlike Justice Gants, thought it unnecessary to go so far as to require mitigation instructions (on reasonable provocation and sudden combat) not only for juveniles but for adults too. As the narrower view—requiring the instructions only in juvenile cases—hers prevailed in the plurality opinion.

But this reader, at least, sees no reason why the instructions should not be given in both juvenile and adult cases, as Justice Gants suggested. Although Justice Lenk wanted to ensure that a grand jury would take into account a juvenile’s youth, mitigation and self-defense are not concepts unique to adolescents. Adults can act out of reasonable provocation, sudden combat, or self-defense just as much as adolescents can. Thus, regardless whether the subject of a murder charge is a juvenile or an adult, it would seem fair in either case for the grand jury to be instructed on mitigating circumstances and self-defense, where the evidence warrants it. But the plurality concluded that the instructions are needed only in juvenile cases.

Besides instructions on mitigation and self-defense, Justice Gants suggested that the grand jury “may even be instructed that the prosecution is entitled to an indictment of the crime charged if it is supported by probable cause based on the credible evidence.” Walczak, 463 Mass. at 841. In this way, he agreed with Justice Spina that the grand jury is not permitted simply to choose between murder and manslaughter if credible evidence of the greater offense has been presented. But, as Justice Gants explained, even if the evidence of malice is legally sufficient, the grand jury is still free to decide that the evidence of mitigation is more reliable and return an indictment for the lesser offense.

Questioning the wisdom of the plurality’s view, Justice Spina pointed out that the decision did not address how one may pursue judicial review of a grand jury’s “gatekeeper” decision (i.e., whether the juvenile will be tried in Superior or Juvenile Court) or the applicable standard of review. More fundamentally, Justice Spina saw the plurality’s position as an “improper judicial exercise of the legislative function.” He believed that where the Legislature, in the 1996 Youthful Offender Act, removed power from Juvenile Court judges to determine in which court a juvenile would be tried, it was not up to the SJC to give similar power to the grand jury. Any legislative response to Walczak remains to be seen.

A postscript to this story is worth telling. After the SJC affirmed the dismissal of Walczak’s murder indictment, the Commonwealth returned to the grand jury to present the case again. This time, with the benefit of instructions on the legal significance of the mitigating circumstances, the grand jury indicted Walczak for voluntary manslaughter. As a result, Walczak will be treated as the juvenile he was in August, 2010, when that botched robbery turned tragically into a fatal fight.

Alex G. Philipson is founder of the appellate boutique Philipson Legal, providing appellate representation and consulting services in civil and criminal matters. He was Senior Staff Counsel to the Supreme Judicial Court from 2003 to 2011.