by Hon. Peter B. Krupp
Voice of the Judiciary
Many times a day in a criminal session judges decide whether setting an affordable bail will be sufficient to ensure a defendant will appear for future court dates. I have set or reviewed bail in hundreds of cases. I have rarely set bail with great certainty and almost always have had to decide based on woefully imperfect information.
There are serious risks of getting it wrong. If a defendant flees, justice for a victim may be substantially delayed or denied; releasing a violent or drug addicted defendant may create a risk to public safety; and setting unaffordably high bail for a defendant may have long-term effects on the defendant, even if an acquittal follows. Compounding the problem, bail decisions usually must be made quickly, so they are disproportionately susceptible to explicit and implicit biases; and the popular press does not help, usually reporting bail as a judicial critique on the severity of the crime rather than an individualized assessment of the defendant’s likelihood of appearing on the charges.
Given these challenges, much depends on effective advocacy by lawyers who must marshal relevant facts and information. Enter the Supreme Judicial Court in Brangan v. Commonwealth, 477 Mass. 691 (2017), which trained a fresh spotlight on the reasons for bail. Although it did not purport to change the law, Brangan, at a minimum, collected and clearly articulated the foundational principles underlying bail, re-centering judges and advocates on what matters and what does not. Before addressing the need for more effective and targeted advocacy, however, a quick overview may be useful.
At a defendant’s initial appearance, the Commonwealth may in certain serious cases move under G.L. c. 276, § 58A to detain a defendant without bail as dangerous. A petition for detention under § 58A triggers the right to an evidentiary hearing to decide whether the defendant is dangerous and, if so, whether a combination of financial and nonfinancial terms can reasonably assure the safety of others and the community. If no such conditions are available, the defendant is held without bail.
In the great bulk of cases, the Commonwealth does not or cannot seek detention under § 58A, but asks that bail be set to assure the defendant’s appearance at future court proceedings. The state and federal constitutions prohibit “excessive” bail, that is, bail “‘higher than an amount reasonably calculated to’ . . . assur[e] the presence of the accused at future proceedings.” Brangan, 477 Mass. at 699, quoting Stack v. Boyle, 342 U.S. 1, 5 (1951). When it comes to bail, one size does not fit all. One size does not even fit all people who commit the same crime. Bail decisions require individualization. As the SJC wrote, “bail that is set without any regard to whether a defendant is a pauper or a plutocrat runs the risk of being excessive and unfair.” Brangan, 477 Mass. at 700. Therefore, the court must determine how much the particular defendant is able to pay, and may set bail “no higher than necessary to ensure the defendant’s appearance.” Id. at 701.
Where no § 58A petition has been filed, “[u]sing unattainable bail to detain a defendant because he is dangerous is improper”; a “judge may not consider a defendant’s alleged dangerousness” in setting the amount of bail, although dangerousness may be considered in setting conditions of release. Id. at 701, 706. Therefore, arguments that a defendant poses a danger to the community, is a threat to public safety or a security risk, has been convicted of rape, failed to register as a sex offender, or had abuse prevention orders issued against him, may be properly advanced in a § 58A hearing, but not for setting the amount of bail, id. at 706-707, at least not unless they reflect directly on the defendant’s likelihood of appearing at future court dates.
A judge must set an affordable bail if it will cause the defendant to appear on future court dates. A bail greater than what the defendant can reasonably afford, but no higher than necessary to ensure the defendant’s appearance, may only be set if the judge issues “findings of fact and a statement of reasons . . . either in writing or orally on the record.” Id. at 707. A new Superior Court form has been issued for these purposes.
In light of these principles, advocacy must evolve to address the only purpose for setting bail: to ensure the defendant will appear at future court proceedings. Certain factors considered in the bail determination, see G.L. c. 276, § 57, par. 2; G.L. c. 276, § 58, par. 1, bear more directly on the risk of non-appearance (e.g., prior defaults, flight from arrest, strong family ties outside Massachusetts, a strong case against the defendant, a high potential penalty), while others bear less directly (e.g., prior 209A orders, prior convictions, open probation matters). Myriad other factors are relevant, including a defendant’s work history, medical condition, and age.
A few examples may help illustrate how prosecutors and defense attorneys need to think through the bail issues that apply to their particular defendant:
Ability to Post Bail. If the defendant has access to resources (or not), inform the court. Bring in tax returns, pay stubs, or an affidavit from the defendant’s employer. “The defendant tells me . . .” or “the police believe . . .” are not particularly persuasive. Put together a sworn statement addressing the defendant’s assets, or explaining where the proposed bail money is coming from and what the financial resources are of the people posting bail. What amount of bail has the defendant posted in earlier cases?
Prior Court Experience. If the defendant has previously been on bail, did the defendant default or appear? The Court Activity Record Information printout (“CARI,” formerly known as the “BOP”) does not show what bail was previously set, whether the defendant was able to post bail, the defendant’s history of appearing in court, or the reason for a default; and it is not always accurate or complete. Does the defendant have a record outside the Commonwealth? There is no substitute for getting docket sheets on a defendant’s prior cases from Massachusetts and other jurisdictions. If a prosecutor wants to rely on a defendant’s failure to remove an earlier default for four months, she should come prepared with documents demonstrating the defendant was not being held on another matter at the time.
Mental health/substance abuse. If the defendant has a drug problem or untreated mental health issue, be prepared to address where the defendant will live, or who the defendant will live with, to mitigate the risk that the defendant will not appear for court. How will medication compliance be monitored? Was defendant’s substance abuse problem addressed in earlier cases?
Effective bail advocacy in the Superior Court requires preparation to dig up information about a defendant’s past and present, information that is at least in some measure available to both the prosecution and the defense. This is often difficult and time-consuming and can rarely be done well on the fly. While a defendant has a right to a prompt bail hearing, in some cases counsel should be prepared to postpone a bail hearing so that information important to the bail determination may be gathered.
In this regard, bail presentations frequently suffer from the Committee for Public Counsel Services (and some district attorneys’ offices) acquiescing to bail appeals being prosecuted or defended by stand-in counsel representing the defendant or the Commonwealth in the Superior Court only for the bail appeal. See, e.g., CPCS Assigned Counsel Manual Policies and Procedures, Ch. IV, Part I, Sec. II.C.5 (“Counsel should facilitate the bail appeal procedure . . . [and] whenever possible, . . . represent the client at the hearing. (Emphasis added)). Most bail arguments cannot be assembled in an hour and should not be based on a quick read of the police report or a short interview with the defendant. Continuity of counsel is crucial. Whatever policies deter bar advocates from handling their district or municipal court clients’ bail appeals should be remedied to assure effective representation during this important phase of a criminal case.
Brangan has focused attention on the issue relevant in setting bail. Hopefully its clarity will also improve bail advocacy and cause lawyers on both sides of a case to assemble reliable facts and documents bearing on whether a defendant is likely to appear at future court proceedings.
Judge Peter B. Krupp has served as an Associate Justice of the Superior Court since 2013. He is a member of the Board of Editors of the Boston Bar Journal.
by Hon. Maura S. Doyle, Francis V. Kenneally, Joseph Stanton and Kim J. Wright
Voices of the Judiciary
In the spring of 2014, the Massachusetts Judicial Branch contracted with Tyler Technologies, Inc., to pilot e-filing through Tyler’s Odyssey File and Serve platform. Although the Federal PACER system is well established, it is not available to states, necessitating that Massachusetts develop its own system. Three departments of the Trial Court, and each of the appellate courts, designated certain case types – and in the case of the Trial Court departments, pilot locations – for their respective e-filing pilots. Over the next 18 months, pilot court personnel teamed with the Courts’ Judicial Information Services Department and Tyler Technologies to establish both a general e-filing system for the Judicial Branch and specific systems tailored to each pilot court’s particular filing requirements. After extensive testing and training of volunteer attorneys for each pilot court, attorneys who regularly filed pilot case types in those pilot courts were invited to e-file. The e-filing system allows a user registered with Tyler to remotely upload a pdf for a court filing in a specific case, select the appropriate court description of the filing from a dropdown menu, electronically serve it on other parties, and file it electronically with the court, generating an appropriate entry on the docket and a link to the pdf in the court’s document management system, without any paper original or duplicate being filed. Tyler charges a modest convenience fee for civil filings that the courts can waive for indigent parties and government filers.
Beginning in the fall of 2015 and continuing through the spring of 2016, the various pilots were conducted on a phased basis. In June 2016, participants conducted an assessment of the pilots, toward a decision whether to proceed with Tyler beyond the pilots to full implementation. Attorneys were asked specifically for input on the registration process, the value of any assistance received from the vendor and specific questions about the e-filing process, including adding service contacts, serving documents through the Odyssey File and Serve, uploading pdfs and making payments.
Overall, responses to the survey were positive. The overwhelming majority of attorneys indicated that they did not encounter problems in registering as a filer, found filing cases to be “easy” or “moderately easy,” had little difficulty uploading PDF documents, and did not encounter problems with making a credit card payment. Comparatively modest concerns were identified for adjustment and improvement during continued implementation. Based on the positive results of the assessment, the Supreme Judicial Court, the Appeals Court and the Trial Court decided to move forward with Tyler Technologies and expand e-filing.
A Closer Look
Before describing the current – and future – state of e-filing in the Appellate Courts it is worth taking a brief look back at the foundation the Courts built over the past decade, in preparation for e-filing. During that time, the Courts have adopted a number of paperless practices, including: scanning decision-related documents (e.g., briefs, transcripts, and record appendices); coordinating with the Trial Court for production of transcripts in PDF; adopting standing orders for court notices and filings by e-mail; permitting electronic signatures and service; encouraging Judges and court personnel to utilize PDFs and electronic editing features in their daily work, and equipping them with the necessary software and hardware to do so; storing PDFs in the Courts’ document management system for access by all court personnel; electronic distribution of, and remote access to, case documents by Justices; and, within the Appeals Court, reducing the number of required paper copies from 7 to 4. Briefs in non-impounded cases scheduled for argument are made available to the public on the Courts’ website. For the past year or two, the overwhelming majority of judges on the Appeals Court, and a majority of the Justices on the SJC, have prepared for, and participated in, oral argument working exclusively from PDFs on an iPad, and iPads also are used by staff attorneys and other personnel to assist in their paperless practice. The Reporter of Decisions electronically edits and publishes the Courts’ opinions, and has transitioned to a completely paperless release of advance sheets.
In addition, the SJC for the Commonwealth has transmitted briefs and transcripts to the U.S. Supreme Court via cloud-based technology. Within the SJC for Suffolk County, more than 3,000 annual petitions for admission to the bar are scanned and electronically stored, before being digitally reviewed by the Board of Bar Examiners, single justice decisions are electronically transmitted upon request, and most written communication between counsel and the clerk’s office occurs by email. More than 4,000 annual filings of required bar admission data from law schools and the National Conference of Bar Examiners, formerly in hard paper copies, now are filed in digital format and are stored in the court’s case management system, and partial electronic processing has led to a reduction by more than fifty percent in hard copy paper filings incident to requests for Certificates of Admission and Good Standing. Finally, the Appeals Court stored over 17,000 pdfs of court filings in 2016.
In sum, the paperless foundation and experience developed over the past decade has prepared the Appellate Courts for the advent of electronic filing.
The Supreme Judicial Court for the Commonwealth launched its e-filing pilot on November 2, 2015. For the first time, attorneys e-filed applications for direct and further appellate review, a significant departure from past practice where the appellate rules require 18 paper copies – on average over 1000 pages per application. The build-up to the launch required extensive planning by the clerk’s office and assistance from attorneys, civil and criminal alike, who beta-tested and provided critical feedback that led to improvements in the e-filing system. On October 14, 2015, Clerk Kenneally conducted a free e-filing seminar sponsored by MCLE and attended by hundreds online and in Boston. MCLE continues to offer the archived program free of charge on its website. Perhaps the most telling statistic to illustrate the success of e-filing to date is the high rate of attorney participation particularly in light of national averages where e-filing is not mandatory. Tyler Technologies, the project’s e-filing vendor, estimates that participation rates in states where e-filing is not mandatory is about 15%. The clerk’s office for the Commonwealth presently has an estimated 80% participation rate that has led to substantial savings in time and money for attorneys who no longer have to worry about the burden of printing paper, delivering applications, and rushing to the courthouse by closing time. For the Justices of the Supreme Judicial Court, accustomed to reviewing over 100 paper applications monthly, e-filed versions are now loaded onto iPads that provide portability and ease of use. At present, expansion from applications to briefs and appendices in full court cases is under review and the clerk’s office hopes to offer further relief from paper production in the future.
In January, 2016, the Supreme Judicial Court for the County of Suffolk initiated its e-filing pilot, encompassing all bar docket cases filed on and after January 1, 2016. This required extensive training of the staff at the Clerk’s Office, Office of Bar Counsel and the Board of Bar Overseers (BBO). Because bar discipline actions are initiated by only two entities, the Office of Bar Counsel and the BBO, all such actions are now filed electronically. Any responsive pleadings that are not e-filed are scanned by the County Clerk’s Office, thereby making all pleadings entered in any bar docket cases filed on or after January 1, 2016, entirely electronically available. In 2017, Clerk Doyle will be implementing the e-filing of petitions for admission to the bar on motion and, thereafter, petitions for admission to the bar by examination.
Among all the Courts, e-filing is perhaps furthest along at the Appeals Court. The Appeals Court launched its e-filing pilot in March 2016, allowing attorneys to initiate and file most documents electronically in civil, non-impounded panel appeals, without any paper original or duplicate filing. The court has since expanded its program to include criminal appeals, self-represented litigants (SRLs), andimminently, the single justice (“J”) docket (e.g., interlocutory petitions). The Appeals Court now accepts electronic filing of nearly every type of document from attorneys and SRLs in all non-impounded cases, with no paper required. Thus, briefs, record appendices, transcripts, motions, status reports, and payment of entry fees may be filed electronically.
Attorneys and SRLs are enthusiastic and e-filing at high percentages, with participation tripling over the winter as several hundred e-filings are submitted monthly. E-filed briefs already exceed the number of paper briefs filed each month and the parties–including CPCS and government filers–are saving significant costs by not providing multiple paper copies of record appendices. To file and serve electronically, filers first need to become familiar with new procedures and software programs. Creating a PDF with optical character recognition, merging a word-processed brief with a scanned addendum into a single PDF, or creating an e-filing account and identifying service contacts for each submission involve new steps–but once completed are easily reproduced the next time. The Appeals Court’s website provides detailed e-filing explanations and user guides about the court’s procedure and format requirements.
Upon entry of every new case in all three appellate courts, the clerk’s office notifies the parties in writing about the availability of e-filing and includes information on how to become a registered user and to view information on e-filing, including court rules and training videos, through Tyler Technologies. The Clerk’s Offices in all three appellate courts also provide daily telephone assistance to e-filers and have held several public training seminars.
The Appellate Courts’ e-filing programs have increased access to justice by providing SRLs the opportunity to e-file and substantially reducing their copying and shipping costs. Further, indigent parties may obtain waiver of e-filing related costs. Additionally, the Clerks’ Offices provide a public computer with a scanner where any litigant or attorney can scan and e-file documents. In addition, the Appeals Court has launched a pilot program allowing Trial Courts to electronically transmit the assembly of record on appeal, and the SJC and Appeals Court send electronic notices of orders and decisions to lower court clerks, judges and counsel (in the case of the SJC for Suffolk County, Bar Discipline orders and decisions similarly are sent electronically to the Board of Bar Overseers, the Office of Bar Counsel, respondent, and counsel).
The Trial Court piloted the program at three separate courts – Worcester District Court in September 2015, the Brighton Division of the Boston Municipal Court (BMC), and the Essex Division of the Probate and Family Court in early 2016. The Quincy District Court became an additional site in March 2016. In the District and Boston Municipal Courts, the pilots included civil case types, while the Probate and Family Court designated Estate Cases to be e-filed.
For the past several months all Trial Court departments have been actively engaged in planning expansion and implementation, with the pilot court departments taking the lead. In those departments, the expansion includes additional case types and locations. Over the next six months, the District Court and BMC will work to provide e-filing for all civil cases, including small claims and supplementary process in all locations. The Probate and Family Court will expand to all locations and will increase available case types from the designated Estate Matters to Divorce complaints filed pursuant to G. L c. 208, § 1B, and adult guardianship matters.
The expansion of e-filing in these departments will be done through a series of phases beginning in the spring and continuing throughout the year until the opportunities for e-filing are available at all of those court locations throughout the state. The expansion is being planned by geographical regions in order to provide attorneys with the opportunity to use the electronic filing in the various courts they frequent. In March, Probate and Family Court locations in Bristol, Norfolk and Duke Counties and District Courts in Fall River, Attleboro, Taunton, New Bedford, Edgartown Brookline, Dedham, Stoughton and Wrentham all went live. The second phase, scheduled for early May, will bring e-filing to Probate and Family Courts in Plymouth, Barnstable and Nantucket, and District Courts in Barnstable, Falmouth, Orleans, Nantucket, Wareham, Brockton, Hingham, Plymouth, Milford and Uxbridge.
Plans are also underway to expand e-filing to the Land, Housing and Superior Court Departments. Implementation teams are meeting and plans for intricate code set up and integration and testing are in place. A comprehensive effort to train employees across the state is planned and Tyler Technologies will provide materials and free training opportunities for the bar.
The Superior Court pilot will offer e-filing for all tort actions. The Superior Court will begin by piloting the process in Middlesex and Barnstable Counties and then expand to the remaining County locations.
The Housing Court pilot will make e-filing available in Small Claims and Summary Process matters. The initial pilot site will be the Boston Housing Court.
The Land Court is in the early planning stage but its singular location will ensure a quick roll out once set up, testing and training is completed.
Tyler Technologies has also provided the Trial Court with access to its online guided interview tool, Odyssey Guide and File, for self-represented litigants. The Guide and File technology provides the opportunity for the Trial Court to improve Access to Justice for self-represented litigants through the creation of on line interviews that populate the court form that will eventually be e-filed into the system. The first such interview technology has been designed for use in Small Claims actions. The Trial Court also plans to use this tool to develop a similar instrument for Summary Process matters, another case type of interest to a large percentage of self-represented litigants.
Interim Electronic Filing Rules for Pilot Courts were approved by the Supreme Judicial Court in February 2015 with accompanying Standing Orders in each of the pilot court departments. As the courts move ahead with the expansion of e-filing, proposed amendments to the interim rules, and adoption of Rules of Electronic Filing Procedure, are posted for public comment until May 31, 2017, and thereafter will be submitted to the SJC for approval.
The Trial and Appellate Courts have established a listserv to provide updates and information as e-filing progresses. If you would like to receive periodic updates on e-Filing as they become available, you are welcome to join the e-filing news list serve. To join, just send an email to firstname.lastname@example.org
The e-filing pilot courts appreciate the efforts of the court personnel, the Judicial Information Services Department, Tyler Technologies, and participating attorneys in establishing the e-filing system. The Judicial Branch welcomes the commencement of electronic filing in the Massachusetts state courts, and invites you to begin e-filing at efilema.com.
The Honorable Maura S. Doyle is the elected Clerk of the Supreme Judicial Court for the County of Suffolk, an attorney and a member of the Supreme Judicial Court’s Standing Advisory Committee on Civil and Appellate Rules, Information Technology Steering Committee for the Appellate Courts, and Standing Advisory Committee on Professionalism.
Francis V. Kenneally is clerk of the Supreme Judicial Court for the Commonwealth and is an attorney admitted to practice in Massachusetts, Maryland and the District of Columbia.
Joseph Stanton is Clerk of the Massachusetts Appeals Court. He serves on numerous Trial Court and Supreme Judicial Court committees, including as co-chair of the e-filing rules subcommittee.
Kim J. Wright is the Senior Assistant for Judicial Policy in the Executive Office of the Trial Court working closely with the Chief Justice of the Trial Court and the Court Administrator to ensure the integration and coordination of judicial policy planning and initiatives. She is a graduate of Suffolk Law School.