CPCS v. AG – The SJC Establishes an Unprecedented, Global Remedy for the Victims of the Amherst Drug Lab Scandal to Address Extraordinary Lab Misconduct that Was Compounded by Intentional Prosecutorial Misconduct

Dan Marx_102x126

by Daniel Marx

Legal Analysis

In Committee for Public Counsel Services v. Attorney General, 480 Mass. 700 (2018), the Supreme Judicial Court provided an unprecedented remedy for the victims of the Amherst lab scandal, thousands of people who were wrongfully convicted based on evidence tainted by former state chemist Sonja Farak. Although the SJC recently established a protocol for the Hinton lab scandal to vacate the wrongful convictions that resulted from Annie Dookhan’s misconduct,[i] the Amherst case was different—and worse. Not only did Farak engage in extraordinary lab misconduct with far-reaching consequences, but her misdeeds were compounded by the prosecutorial misconduct of Assistant Attorneys General Anne Kaczmarek and Kris Foster, who minimized the scope of the scandal by withholding evidence about Farak’s drug abuse and misleading defense attorneys, the courts, and the public. As the SJC concluded in CPCS v. AG, “the government misconduct by Farak and the assistant attorneys general was ‘so intentional and so egregious,’” that “harsher sanctions than the Bridgeman II protocol [were] warranted.”[ii] Therefore, the SJC ordered the wrongful convictions of all “Farak Defendants” to be dismissed with prejudice, and the implementation of that remedy is now underway.

Lab Misconduct

Sonja Farak worked as a state chemist for 10 years, beginning at the William A. Hinton State Laboratory Institute in Jamaica Plain (“Hinton lab”) in 2003. Farak transferred to the satellite facility in Amherst (“Amherst lab”) in 2004, and she worked there until her arrest in January 2013. The Amherst lab was smaller, employed fewer chemists, and had “basically … no oversight.”[iii] Throughout her decade-long tenure there, Farak engaged in shocking misconduct.

As a chemistry graduate student, Farak smoked marijuana and also experimented with cocaine, ecstasy, and heroin. Shortly after joining the Amherst lab in 2004, Farak began to consume the “standards,” illegal substances used to test evidentiary samples. Over several years, she nearly exhausted the methamphetamine oil, and by 2009, she had stolen ketamine, cocaine, and ecstasy. Then, Farak turned to evidentiary samples submitted by police departments. During the worst periods of her addiction, through 2013, Farak abused drugs on a daily basis.

Farak’s misconduct also undermined the reliability of her colleague’s work. Farak had “unfettered access” to the entire lab, and in later years, she tampered with samples assigned to other chemists, violated security protocols, and manipulated inventory information. As the SJC recognized, her “extensive and indeterminable” misconduct, over many years, “diminishe[d] the reliability and integrity of forensic testing at the Amherst lab.”[iv]

Prosecutorial Misconduct

Unlike the Hinton case, the Amherst lab scandal also involved prosecutorial misconduct that the SJC characterized as “egregious, deliberate, and intentional.”[v] This troubling confluence of lab and prosecutorial misconduct prompted the SJC to impose “the very strong medicine of dismissal with prejudice” for all tainted convictions.[vi]

After Farak’s arrest in January 2013, investigators searched her car and collected drugs, paraphernalia, and counseling records that revealed Farak struggled with addiction and abused drugs in 2011. But neither the victims of the Amherst scandal nor the public learned about this critical evidence until almost one year later. Despite their legal and ethical obligations, AAG Kaczmarek (who prosecuted Farak) and AAG Foster (who handled to discovery requests about the Amherst lab) intentionally hid the documents, stonewalled defense attorneys, and misled the courts.

The improper efforts to minimize Farak’s misconduct were nearly as extensive as the lab misconduct itself. The AAGs mischaracterized exculpatory evidence as “assorted lab paperwork,” including the counseling records investigators forwarded under the subject line: “FARAK admissions.” They falsely insisted such documents were “irrelevant” and baselessly asserted “privilege” claims. They denied discovery requests, moved to quash subpoenas, and misled then-Superior Court Justice Jeffrey Kinder to believe that all evidence had been disclosed.

This prosecutorial misconduct severely undermined the judicial process. Relying on the “misleading evidentiary record,” Judge Kinder ruled Farak’s misconduct began in July 2012 and only affected her work. As a result, thousands of Farak Defendants received no post-conviction relief. In Commonwealth v. Cotto, 471 Mass. 85 (2015), and Commonwealth v. Ware, 471 Mass. 97 (2015), the SJC concluded “the scope of Farak’s misconduct [did] not appear to be . . . comparable to the enormity of Dookhan’s misconduct” and, for that reason, refused to extend to Farak Defendants the conclusive presumption of egregious government misconduct that, in Commonwealth v. Scott, 467 Mass. 336 (2014), it granted to Dookhan Defendants.[vii]

CPCS v. AG

More than two years after Cotto and Ware, the victims of the Amherst scandal still had not been identified, much less notified of their tainted drug convictions and afforded any meaningful relief. Thus, in September 2017, Petitioners in CPCS v. AG filed an action pursuant to G.L. c. 211, § 3, to address: (i) the scope of the scandal; (ii) the appropriate remedy for the victims; and (iii) specific policy proposals to prevent (and, if necessary, respond to) future crises.

Petitioners contended “all convictions based on drug samples tested at the Amherst lab during Farak’s tenure should be vacated and dismissed with prejudice, regardless of whether Farak signed the drug certificate,” because Farak’s lab misconduct, compounded by Kaczmarek and Foster’s prosecutorial misconduct, tainted the evidence in those cases.[viii] The AG conceded Farak undermined the reliability of samples that other chemists analyzed. Yet, based on Farak’s uncorroborated claim that she did not tamper with her colleagues’ work until June 2012, the AG argued any “whole lab” remedy should start at that later time.[ix] Taking a narrower view, the DAs insisted only defendants for whom Farak signed drug certificates were entitled to relief.[x]

Regarding the remedy to which “Farak Defendants” would be entitled, Petitioners asked the SJC to vacate all tainted convictions and dismiss the underlying charges with prejudice. The AG concurred, but only for the more limited class whom it considered Farak’s victims. Meanwhile, the DAs argued the Bridgeman II protocol was sufficient and no further remedy was required.

Finally, as a “prophylactic remedy” to avoid the need for protracted litigation to address any future scandal, Petitioners proposed the SJC issue: (i) a “Brady order” “requiring specific disclosures” by the Commonwealth in all criminal cases and, further, “setting forth specific disclosure deadlines”; (ii) a “Bridgeman II order” to “require a prosecutor that knew, or had reason to know, that misconduct had occurred in a particular case” to notify the Trial Court and CPCS within 90 days and to provide a list of affected defendants; and (iii) a Cotto order to “require a government attorney who knows that attorney misconduct affected a criminal case to notify” the Trial Court, CPCS, and the Office of Bar Counsel within 30 days.[xi] Recognizing the need for real reform, the AG endorsed the proposed orders. The DAs, however, disagreed, arguing the existing discovery rules are adequate and the SJC should not fashion a “one size fits all” solution for future problems.

“Farak Defendants”

The SJC defined the “Farak Defendants” to be narrower than “all Amherst lab cases” but broader than “only Farak cases.” It held that, in addition to persons for whom Farak signed drug certificates, “Farak Defendants” include all defendants whose cases were analyzed by any Amherst chemist on or after January 1, 2009, and all defendants convicted of methamphetamine offenses whose cases were handled by the Amherst lab during Farak’s tenure.[xii] For all those defendants, the SJC held their tainted convictions must be vacated and the underlying charges dismissed with prejudice.

The SJC explained its expanded definition of “Farak Defendants” reflected the “extensive and indeterminate nature” of Farak’s misconduct, which involved methamphetamine since 2004 and “spiraled out of control at the beginning of 2009,” when Farak began to manipulate lab systems, steal from police-submitted samples, and tamper with samples assigned to other chemists.[xiii] Such misconduct, the SJC held, “diminishe[d] the reliability and integrity of the forensic testing at the Amherst lab” and “reduce[d] public confidence in the drug certifications from other labs.”[xiv]

“Brady Checklist”

In addressing the proposed Brady order, the SJC affirmed the basic principle that, to fulfill his or her “core duty . . . to administer justice fairly,” a prosecutor must provide all material, exculpatory evidence to a defendant “without regard to its impact on the case.”[xv] This “Brady obligation” has long been recognized under the due process guarantees of Massachusetts Declaration of Rights and the U.S. Constitution; procedural rules, such as Mass. R. Crim. P. 14(a), the “automatic discovery” rule for criminal cases; and ethical rules, such as Mass. R. Prof. C. 3.8(d), (i), and (g), which prohibit prosecutors from avoiding the discovery of exculpatory evidence and require prosecutors to make timely disclosures. Nevertheless, rather than issue a standing Brady order, the SJC asked the Advisory Committee “to draft a proposed Brady checklist to clarify the definitions of exculpatory evidence.”[xvi] The ABA has promoted such checklists, and several federal courts have implemented them.[xvii]

As the SJC acknowledged, however, “no checklist can exhaust all potential sources of exculpatory evidence.”[xviii] Ironically, a detailed list of discoverable materials may obscure the more basic commitment to fundamental fairness. It is not hard to foresee disputes in which prosecutors elevate form over substance by arguing that evidence is not Brady material because it does not correspond to any category on a Brady checklist. Moreover, no checklist could have prevented the intentional misconduct that exacerbated the Amherst scandal. AAGs knowingly possessed exculpatory evidence about Farak’s misconduct, but they intentionally refused to turn it over to defendants.

Even for law-abiding, ethical prosecutors, there remains a deeper problem. CPCS v. AG demonstrates how evidence, such as Farak’s counseling records, appears from the conflicting prosecution and defense perspectives. Although prosecutors dismissed these materials as “irrelevant,” Attorney Luke Ryan, who represented several Farak Defendants, immediately realized their exculpatory importance and notified the AG’s Office:  “‘[I]t would be difficult to overstate the significance of these documents.’”[xix] In our adversarial system, prosecutors tend to see evidence in the context of proving a defendant’s guilt, and defense counsel must examine evidence to establish a defendant’s innocence. Put simply, prosecutors are not trained, experienced, or motivated to consider evidence in that way.

Standing Orders

The SJC cited two reasons for declining to issue the proposed Bridgman II and Cotto orders. First, the remedies in those cases reflected the alarming magnitude of the Hinton and Amherst scandals.[xx] Second, in the event of “similar, widespread abuse” in the future, the remedy must “correspond to the scope of the misconduct.”[xxi] The SJC suggested “the balance of equities” may not always justify a “global remedy” rather than a case-by-case response.[xxii]

All agree the recent scandals were unprecedented, and remedies for such government misconduct should be tailored to the harms. A key lesson, however, has been that “existing professional and ethical obligations,” which the DAs consider sufficient, are not self-executing. Affirmative litigation by advocacy groups and defense attorneys as well as repeated judicial intervention by the SJC was needed to reveal the full scope of the misconduct and to provide meaningful remedies.

At first, the AG assumed that Farak’s misconduct began only six months before her arrest. But as Superior Court Justice Richard Carey found, that “assumption was at odds with the evidence uncovered even at that early juncture.”[xxiii] Then, after Cotto and Ware, the AG appointed former Superior Court Justice Peter Velis and AAG Thomas Caldwell to investigate, and it also convened grand juries in Hampshire and Suffolk, calling Farak and many others from the Amherst lab to testify. These efforts erroneously concluded Farak’s misconduct neither affected the work of other chemists nor involved misconduct by prosecutors.

Meanwhile, on remand from Cotto and Ware, Judge Carey conducted an extensive evidentiary hearing at which Kaczmarek, Foster, and others were subjected to cross-examination under oath in open court. That adversarial proceeding revealed more misconduct. Judge Carey found that, by their “intentional and deceptive actions,” the AAGs “ensured that justice would certainly be delayed, if not outright denied.”[xxiv] Both prosecutors “perpetrated a ‘fraud upon the court’” and “‘violated their oaths as assistant attorneys general.’”[xxv] Even then, however, Judge Carey mistakenly concluded Farak’s misconduct impacted only her cases.

Finally, when the SJC took up the issue again in CPCS v. AG, three years after Cotto and Ware, the record established far more extensive lab misconduct and the outrageous prosecutorial misconduct that further prejudiced the victims of the Amherst scandal. Affirming Judge Carey’s view, the SJC held Farak, Kaczmarek, and Foster had all engaged in egregious misconduct. But departing from Judge Carey’s more limited ruling, the SJC also decided the remedy could not be confined to those defendants whose drug certificates Farak signed.

In retrospect, the problem has not only been the slow pace of justice but also the need to litigate with the AG and DAs, for many years, to secure relief from the SJC. Shortly after Farak’s arrest, the ACLU of Massachusetts and CPCS reached out to prosecutors and proposed that both sides work collaboratively to ensure a swift, meaningful response. Those overtures were ineffective, and another G.L. c. 211, § 3 petition to the SJC was required. When confronted with a “lapse of systemic magnitude,”[xxvi] the criminal justice system should not depend on defendants to bring lawsuits, like CPCS v. AG, to vacate wrongful convictions.

Conclusion

Farak was arrested in January 2013, and CPCS v. AG was decided in October 2018, nearly six years later. As of this writing, it is estimated that more than 10,000 individuals were wrongfully convicted as a result of the Amherst lab scandal, and the total number could prove to be significantly higher. Most of these “Farak Defendants” have only recently been notified of their vacated convictions, and many still have not been identified or had their records cleared.

CPCS v. AG was an important effort by the SJC to remedy the harm from unprecedented lab and prosecutorial misconduct. It is also a crucial reminder that further reforms are needed to prevent such malfeasance and, in the event of a future scandal, to ensure that all stakeholders in the criminal justice system—most importantly, prosecutors—will immediately, effectively, and cooperatively investigate the full extent of the problem and, if necessary, proactively implement an appropriate remedy to see that justice is done.

Daniel Marx is a founding partner of Fick & Marx LLP, a boutique firm in Boston, Massachusetts, focused on representing diverse clients in criminal prosecutions, complex civil litigation, and appeals. Along with attorneys from the ACLU of Massachusetts, Mr. Marx served as pro bono counsel for Petitioners Hampden County Lawyers of Justice, Herschelle Reaves, and Nicole Westcott in CPCS v. AG. In addition, Mr. Marx previously served as pro bono counsel for the petitioners in Bridgeman v. District Attorney for Suffolk County.

[i] Bridgeman v. District Attorney for the Suffolk District, 476 Mass. 298 (2017) (“Bridgeman II”).

[ii] CPCS v. AG, 480 Mass. at 725 (emphasis added); see id. at 704 (recognizing the prosecutorial misconduct by AAGs Kaczmarek and Foster “compounded” the lab misconduct by Farak).

[iii] Id. at 706.

[iv] Id. at 727, 729.

[v] Id. at 705 (quoting Bridgeman II, 476 Mass. at 316).

[vi] Id. at 725.

[vii] Id. at 717 (quoting Cotto, 471 Mass. at 111).

[viii] Id. at 725.

[ix] See id. at 727.

[x] See id. at 726.

[xi] Id. at 730, 733-734.

[xii] See id. at 734-735.

[xiii] Id. at 729.

[xiv] Id. at 727.

[xv] Id. at 730 (quoting Commonwealth v. Tucceri, 412 Mass. 401, 408 (1992), and citing Brady v. Maryland, 373 U.S. 83, 87 (1963)).

[xvi] Id. at 732.

[xvii] ABA Resolution 104A (as revised) (Feb. 4, 2011); see, e.g., Standing Brady Order, No. XX-XX (EGS), at http://www.dcd.uscourts.gov/sites/dcd/files/ StandingBradyOrder_November2017.pdf.

[xviii] CPCS v. AG, 480 Mass. at 733.

[xix] Id. at 716 (quoting Attorney Ryan’s letter to the AG’s Office).

[xx] See id. at 734.

[xxi] Id.

[xxii] Id.

[xxiii] Id. at 711.

[xxiv] Id. at 720.

[xxv] Id. at 702, 720 (quoting Judge Carey’s opinion).

[xxvi] Bridgeman II, 476 Mass. at 335 (quoting Scott, 467 Mass. at 352).

 


Looking Ahead: The Judiciary’s Goals for the New Year and Beyond

Gants_Ralphby Chief Justice of the Supreme Judicial Court Ralph D. Gants

Voice of the Judiciary

The role of the Judiciary is not only to do justice but to solve problems, and the sensible resolution of problems often is how we do justice. Working in close partnership with the trial court leadership team of Chief Justice Paula Carey and Court Administrator Harry Spence, we are committed to four new initiatives that we hope will assist us in our efforts to solve problems and do justice. The judiciary, however, can achieve none of these alone; each requires collaboration with and the support of the Legislature, the Executive branch, and the Bar.

Our first initiative is in the area of sentencing reform.  We need our sentences not merely to punish and deter, but also to provide offenders with the supervision and the tools they will need to maximize the chance of success upon release and minimize the likelihood of recidivism. I have asked every trial court department with criminal jurisdiction to recommend protocols for their department that will incorporate best practices, informed by social science evidence regarding which sentences reduce the risk of recidivism and which may actually increase that risk.  Further, I will work with the Legislature and encourage them to abolish mandatory minimum sentences for drug offenses in favor of individualized, evidence-based sentences that will not only punish and deter, but also minimize the risk of recidivism by treating the root of the problem behind many drug offenses — the problem of addiction.

The impact of mandatory minimum drug sentences is far greater than the number of defendants who are actually given mandatory sentences.  Prosecutors often will dismiss a drug charge that carries a mandatory minimum sentence in return for a plea to a non-mandatory offense with an agreed-upon sentence recommendation, and defendants often have little choice but to accept a sentencing recommendation higher than they think appropriate because the alternative is an even higher and even less appropriate mandatory minimum sentence. As a result, where there is a mandatory minimum sentence, a prosecutor’s discretion to charge a defendant with a crime effectively includes the discretion to sentence a defendant for that crime.

Mandatory minimum sentencing in drug cases has had a disparate impact upon racial and ethnic minorities. In 2013, which is the most recent year for which data are available, racial and ethnic minorities comprised 32% of all convicted offenders, 55% of all those convicted of non-mandatory drug distribution offenses, and 75% of all those convicted of mandatory drug offenses.  I do not suggest that there is intentional discrimination, but the numbers do not lie about the disparate impact of mandatory minimum drug sentences.

I expect that the abolition of mandatory minimum sentences in drug cases would likely result in some reduction in the length of incarceration in drug cases. This would free up money that could be reinvested in programs proven to reduce the rates of recidivism, in treatment programs, and in long overdue salaries increases for assistant district attorneys and CPCS attorneys.

Our second initiative involves our civil justice system.  We will develop a menu of options in civil cases to ensure that litigants have cost-effective means to resolve their dispute in a court of law. I do not want a Commonwealth where those with a civil dispute think that they can resolve it efficiently and sensibly only through private arbitration rather than in our civil courts.  Arbitrators generally do not publish their decisions; they make use of our common law but they generally create none of their own.  If complex and difficult cases no longer come to our courts, our common law does not adapt and evolve, and our legal infrastructure becomes old and outdated. We must ensure that our courts through our published decisions, especially our appellate decisions, continue to create the common law that is the legal infrastructure of our civil society.

I have asked each trial court department to devise a menu of litigation options appropriate to the cases adjudicated by that department.  That menu will include the full range — from the “three course meal” option including full discovery, a jury trial (in cases where there is a right to jury trial), and full rights of appeal, to less costly and more expeditious “a la carte” options that might offer, for instance, limited discovery, a bench trial, and, perhaps, limitations on the right or scope of appeal.  With a menu of options in each department, litigants can agree on the option that makes most sense in their case, with the three course meal the fallback option if they are unable to reach agreement.

Our third set of initiatives focuses on access to justice. It is not enough to establish legal rights; we need our residents to know their rights, to know how to invoke them, and to know how to find the legal assistance or information that can help them to do so.  We will soon make available to all litigants an information sheet that will help self-represented litigants find the legal resources that are available to them, including lawyer for the day programs, voluntary mediation services, limited assistance representation, and court service centers, where available. We plan to expand access to court service centers by adding four more in the coming year, and to have one in each of our fifteen largest courthouses, which serve half the litigants in the Commonwealth, by 2017. Finally, we will propose legislation to give every resident of Massachusetts access to a Housing Court. Currently, nearly one-third of our residents have no such access, which means that they have no access to Housing Court judges, housing specialists, the Tenancy Preservation Program, and no forum to enforce building and safety codes efficiently.

Our fourth initiative involves jury voir dire. An SJC Committee chaired by my colleague, Justice Barbara Lenk, is working to improve the quality of jury voir dire — to give attorneys a meaningful role in the selection of a fair and impartial jury while, at the same time, protecting the privacy and dignity of our jurors, and respecting our need to try cases in a timely and efficient manner. We shall improve the quality of voir dire in every court department, recognizing that a method of voir dire that may be sensible in one trial court department may not be sensible in all.

By February, 2015, when St. 2014, c. 254, sec. 2 takes effect, an interim Superior Court standing order will establish protocols for attorney participation in voir dire in that department.  The Superior Court will also establish a pilot project in which judges who volunteer to do so will conduct “panel voir dire.”  The Superior Court and the SJC Committee will monitor response to both the interim standing order and the pilot project and then make further recommendations.

As I said when I was sworn in — 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 D. Gants is the Chief Justice of the Supreme Judicial Court. Chief Justice Gants was appointed as an Associate Justice of the Superior Court in 1997 by Governor William Weld. Governor Deval Patrick first appointed him as a Justice to the Supreme Judicial Court in January 2009. In July 2014, he was appointed as the thirty-seventh Chief Justice by Governor Patrick.


Rethinking Mens Rea for Extreme Atrocity or Cruelty

Philipson_Alexby Alex G. Philipson

Viewpoint

Currently in Massachusetts, the only mens rea required for first-degree murder by extreme atrocity or cruelty is malice aforethought—the same mens rea required for second-degree murder. See Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983). The mental state may be identical, but the punishment is very different: for first-degree murder, it is life imprisonment without parole; for second-degree, it is life with the possibility of parole after fifteen years. What distinguishes proof of the greater offense is evidence of extraordinary brutality or suffering. Id. at 227–228. But the Commonwealth need not prove the defendant intended, or was even aware of, this heightened savagery. Id.

Is it time to reconsider this law? At least two Justices of the Supreme Judicial Court (and one former Justice) think so. See Commonwealth v. Berry, 466 Mass. 763, 774–778 (2014) (Gants, J., concurring, joined by C.J. Ireland [now retired] and Duffly, J.). See also Commonwealth v. Riley, 467 Mass. 799, 828–829 (2014) (Duffly, J., concurring). They say it is unfair to allow a jury to find that a defendant acted with extreme atrocity or cruelty without proof that he intended, or was indifferent to, the victim’s extraordinary pain. Riley, 467 Mass. at 828–829; Berry, 466 Mass. at 776–778. The point is well taken.

Consider a hypothetical case where a jury heard evidence that a defendant killed a victim by repeatedly striking him in the head with a tire iron. On the theory of extreme atrocity or cruelty, the jury would be instructed that they could find the defendant guilty if they found any one of seven factors—only one of which is subjective: the defendant’s indifference to, or taking pleasure in, the victim’s suffering. See Cunneen, 389 Mass. at 227. The other six factors are objective: the victim’s consciousness and degree of suffering; the extent of physical injuries; the number of blows; the manner and force of blows; the instrument used; and the disproportion between the means needed to cause death and those used. Id. So, the jury could sidestep the question of the defendant’s intent or awareness of the victim’s suffering by focusing solely on one or more of the objective factors—e.g., that the instrument used (a tire iron) can cause grotesque injuries. To be sure, there is one circumstance when a jury is required to consider the subjective factor: when there is evidence suggesting the defendant was mentally impaired. See Commonwealth v. Gould, 380 Mass. 672, 685–686 (1980). But even then, the Commonwealth is still not required to disprove the defendant’s impairment; evidence of impairment is simply a factor that the jury can weigh as they see fit.

In short, the trouble with Cunneen is that it separates the subjective factor from the objective ones. Luckily, these factors can be joined using principles from our existing law.

The case that established that malice is the only required mens rea for extreme atrocity or cruelty nonetheless acknowledged that another state of mind is also relevant. See Commonwealth v. Gilbert, 165 Mass. 45, 58–59 (1895). In one breath, the court declared that “[s]pecial knowledge of the character of the act,” i.e., that the killing “was attended with extreme atrocity or cruelty,” is not required. Id. at 58. But, in another breath, the court recognized that some knowledge of the crime’s brutality must exist: “The circumstances [of the killing] would give [the defendant] reason to believe that he was causing pain to his victim; the indifference to such pain, as well as actual knowledge thereof and taking pleasure in it, constitute cruelty, and extreme cruelty is only a higher degree of cruelty.” Id. at 59. The implication is that a defendant who knows his actions are cruel would also know they are extremely so. Yet, how can a jury make this conclusion unless they find that the defendant’s actions were extreme (e.g., that the defendant inflicted multiple blows with a dangerous weapon), and that the defendant had at least “actual knowledge” of the extraordinary pain the victim would suffer? Gilbert, 165 Mass. at 59. And shouldn’t the Commonwealth have to prove this mens rea, considering what is at stake: a sentence of life without parole? Put another way, when our most severe criminal punishment is on the line, is it fair to allow the jury to presume the defendant’s actual knowledge of, indifference to, or pleasure in the victim’s extreme suffering? These are the problems that Gilbert created and that Cunneen failed to solve.

So what is the answer? How about requiring the Commonwealth to prove both the first Cunneen factor and at least one of the others? That would bring together two essential components: an unusually brutal or painful manner of death (objective element), and the defendant’s indifference to or taking pleasure in the victim’s extraordinary suffering (subjective element). By analogy, our law already uses a similar hybrid of objective and subjective components for so-called “third-prong malice”: an intent to do an act which, in circumstances known to the defendant (subjective part), a reasonable person would have known created a plain and strong likelihood of death (objective part). See Commonwealth v. Stewart, 460 Mass. 817, 826 & n.9 (2011). A similar hybrid could perhaps work for extreme atrocity or cruelty too.

Some time ago, two members of the Supreme Judicial Court worried that requiring the Commonwealth to prove the defendant knew about or intended the victim’s extreme suffering would “blur the distinction” between two theories of first-degree murder: deliberate premeditation, and extreme atrocity or cruelty. See Gould, 380 Mass. at 693 (Quirico, J., concurring in part and dissenting in part, joined by Hennessey, C.J.). The Justices did not explain what they meant by “blur.” It seems they were concerned that because deliberate premeditation is the only theory of first-degree murder that, besides malice, has a second mens rea (i.e., forming a plan to kill after a period of reflection, Commonwealth v. Caine, 366 Mass. 366, 374 [1974]), adding a second mens rea to extreme atrocity or cruelty (indifference to or pleasure in the victim’s suffering) would—by giving that theory two mens reas—make that theory too similar to deliberate premeditation. The concern, however, is not compelling. The mental state for deliberate premeditation (forming a plan to kill after a period of reflection) is quite unlike indifference to or taking pleasure in a victim’s extraordinary suffering. Thus, the purported concern with “blurring” should not stand in the way of improving our law.

The same two Justices also warned that adding a second mens rea would “rewrite [the] legislative definition” of extreme atrocity or cruelty. See Gould, 380 Mass. at 691. Perhaps so, considering that G. L. c. 265, § 1 does not provide this second mens rea. But neither does the statute define what acts objectively bespeak extreme atrocity or cruelty; the common law does that. See Cunneen, 389 Mass. at 227. Also, the Legislature has not amended G. L. c. 265, § 1 since the Supreme Judicial Court, more than three decades ago, allowed juries to at least consider evidence of a defendant’s mental state (beyond malice) to determine whether the defendant acted with extreme atrocity or cruelty. See Gould, 380 Mass. at 684–686 & n.16. Accord Commonwealth v. Rutkowski, 459 Mass. 794, 798 (2011); Commonwealth v. Urrea, 443 Mass. 530, 535 (2005). See also Cunneen, 389 Mass. at 227–228. The Legislature’s silence on Cunneen and Gould suggests it is comfortable with sensible judicial modifications of the law.

It may be some time before the right occasion arises to revisit the mens rea element of murder by extreme atrocity or cruelty. When that time comes, the Supreme Judicial Court would do well to take the opportunity to make the law more logical and fair.

 

Alex G. Philipson is the founder of Philipson Legal, a boutique practice focusing on civil and criminal appeals.


Foreclosure in the Aftermath of Securitization

Moriarty_Thomasby Thomas O. Moriarty

Legal Analysis

The creation and subsequent collapse of mortgage-backed securities had far reaching impacts on both the housing and stock markets.  Not coincidentally, as reflected in numerous appellate decisions over the past three years, attempts to exercise the statutory right of sale with regard to such securitized loans have been complicated and led to fundamental changes in the mortgage foreclosure process in the Commonwealth.  Experience has revealed that the assignment of securitized loans has been poorly documented and carried out with little concern for who maintained the interest in the underlying mortgage note secured by the mortgage.  Prior to these cases, it had been accepted practice for foreclosing mortgagees to receive post-foreclosure assignments and to foreclose without a documented interest in the mortgage note.  The Supreme Judicial Court (“SJC”) has now held that, to foreclose under G.L. c. 244 and G.L. c. 183, a foreclosing mortgagee must – at the time of notice and foreclosure – hold both the mortgage and the underlying note or act on behalf of the note holder.  The foreclosure of many securitized mortgages failed to meet such requirements.  While recent decisions of the SJC and Appeals Court have placed some outside limits on this rule, many titles have been clouded and remain clouded by these developments.

In U.S. Bank National Association v. Ibanez, the SJC held that, under the plain language of G.L. c. 183, § 21 and G.L. c. 244, § 14, a purported assignee of a mortgage could exercise the power of sale contained in the mortgage only if it possessed the mortgage at both the time of the notice of sale and the subsequent foreclosure sale.  458 Mass. 637, 648 (2011).  U.S. Bank brought a quiet title action in Land Court pursuant to G.L. c. 240, § 6, seeking a declaration that it held title to certain land it bought back at its own foreclosure sale, alleging that it had become the holder of the subject mortgages by way of an assignment made after the foreclosure sale.  Id. at 638-639.[1]  The Land Court entered judgment against U.S. Bank finding that a post-notice and post-foreclosure assignment resulted in an invalid foreclosure.  Id. at 639.

The SJC affirmed and found that a mortgage that contains a power of sale permitting foreclosure refers to and incorporates the statutory requirements of G.L. c. 183, § 21 and G.L. c. 244, §§ 11-17C.  The SJC concluded that a foreclosing mortgage holder must strictly follow the requirements of these statutes or any resulting sale will be “wholly void.”

The SJC held that post-notice, post-foreclosure mortgage assignments failed the strict adherence standard on two counts.  First, pursuant to G.L. c. 183A, § 21 and G.L. c. 244, § 14, as relevant to the facts presented, the statutory power of sale can only be exercised by the mortgagee.  Second, G.L. c. 244, § 14 provides that a statutory sale is ineffectual unless notice has been provided to the mortgagor and also published.  Id. at 647.  The SJC reasoned that because only the “present holder of the mortgage is authorized to foreclose” and “because the mortgagor is entitled to know who is foreclosing,” a notice lacking such accurate information is defective, and a foreclosure sale relying on such deficient notice is void.  Id. at 648.  Importantly, the SJC held that strict adherence to the statute does not require that an assignment be in recordable form at the time of the notice of sale or the foreclosure sale.  Id. at 651.[2]

The SJC rejected plaintiffs’ request to apply the decision prospectively, noting that prospective application is warranted only where a “significant change in the common law” is made.  Ibanez, 458 Mass. at 654.  Ibanez observed that the law had not changed as a result of the decision, rather “[a]ll that has changed is the plaintiffs’ apparent failure to abide by those principles and requirements in the rush to sell mortgage-backed securities.”  Id. at 655.

In Bevilacqua v. Rodriguez, the SJC was presented with the question of whether a plaintiff has standing to maintain a try title action under G.L. c. 240, §§ 1-5 when he is in physical possession of property but his foreclosure deed is a nullity under the SJC’s holding in Ibanez.  460 Mass. 763 (2011).  A try title action is fundamentally different from other civil actions involving disputed title.  It allows a plaintiff – upon the satisfaction of jurisdictional prerequisites – to compel an adverse party either to abandon a claim to the plaintiff’s property or to bring an action to assert the claim in question.  Id. at 766.  Before an adverse party can be summoned and compelled to either disclaim or try its title, the plaintiff must establish two jurisdictional facts:  (1) that it is a person in possession, and (2) that it holds a record title to the land in question.  Id. at 766-767 (citing Blanchard v. Lowell, 177 Mass. 501, 504 (1901); Arnold v. Reed, 162 Mass. 438, 440-441 (1894)).  Unlike a quiet title action, which requires a plaintiff to prove a sufficient title to succeed, a plaintiff in a try title action may defeat an adverse claim by default or by showing its title is superior to that of the respondents.  Id. at 767 n.5.

Bevilacqua argued that the mortgage, which was purportedly foreclosed, constituted a cloud on the title he claimed to possess as the result of a void foreclosure sale.  Id. at 765-766.  The SJC held that Bevilacqua did not have standing to advance a try title action.  Id. at 780.  While the SJC accepted that Bevilacqua was “a person in possession,” it rejected his claim that a foreclosure deed from a defective foreclosure gave him the record title required by G.L. c. 240, § 1.  Id. at 770.

The decision in Eaton v. Federal National Mortgage Association, which as discussed further below was given prospective application, addressed a question that was not presented in Bevilacqua: whether a mortgage holder may foreclose the equity of redemption without also holding the mortgage note or acting on behalf of the note holder.  462 Mass. 569 (2012).  Eaton concluded that under G.L. c. 183, § 21 and G.L. c. 244, § 14, to be a “mortgagee authorized to foreclose pursuant to a power of sale, one must hold the mortgage and also hold the note or act on behalf of the note holder.”  Id. at 571.

Eaton filed a complaint in Superior Court to enjoin a summary process eviction.  Id. at 570-571.  The trial court granted the plaintiff a preliminary injunction.  Id. at 571.  After a single justice of the Appeals Court denied a petition by the defendant and reported same to a full panel, the SJC transferred the case on its own motion.

The SJC observed that a real estate mortgage has two distinct but related aspects: (1) it is a transfer of title, and (2) it serves as security for an underlying obligation (and is defeasible when the debt is paid).  Id. at 575.  While the Court recognized that a mortgage and an underlying note can be separated or “split,” it found that in such circumstances the mortgage is a mere technical interest.  Id. at 576.  Relying upon its analysis in Ibanez, Eaton found that under Massachusetts common law, when a mortgage is split from the underlying note, “the holder of the mortgage holds the mortgage in trust for the purchaser of the note,” which purchaser has an equitable right to an assignment of the mortgage.  Id. at 576-577 (quoting U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637, 652 (2011)).   Eaton thus held that at common law, “a mortgagee possessing only the mortgage was without authority to foreclose . . . .”  Id. at 577-578.

The defendant’s statutory arguments fared no better.  Eaton held that a foreclosure sale conducted pursuant to a power of sale in a mortgage must comply with all applicable statutory provisions, including G.L. c. 183, § 21 and G.L. c. 244, § 14.  Id. at 571, 579-581.  G.L. c. 244, § 14 provides, in relevant part:

The mortgagee or person having his estate in the land mortgaged, or a person authorized by the power of sale, . . . may, upon breach of condition and without action, do all the acts authorized or required by the power.

Id. at 581 (emphasis in original).  The SJC held that the term “mortgagee” in § 14 was ambiguous and concluded that the Legislature intended that a “mortgagee” must also hold the mortgage note.[3]  Id. at 581-582, 584.  However, Eaton made clear that a foreclosing mortgagee need not have physical possession of the mortgage note to validly foreclose.  Recognizing the application of general agency principles in this context, the SJC interpreted the statutes to permit “the authorized agent of the note holder, to stand ‘in the shoes’ of the ‘mortgagee’ as the term is used in these provisions.”  Id. at 586.

In giving Eaton prospective application, the SJC considered several factors including the fact that the term “mortgagee” in the statute was ambiguous.  Id. at 587.  The Court also noted that Eaton’s ruling differed from prior interpretations which, if retroactive, could create difficulties in ascertaining the validity of certain titles.  Id. at 588.

The scope of Eaton’s prospective application was recently clarified in Galiastro v. Mortgage Electronic Registration Systems, Inc., 467 Mass. 160 (2014).  On direct appellate review to the SJC, the Galiastros argued that, because their appeal of the same issue was stayed pending the decision in Eaton, the Eaton decision should apply to their claims.  Id. at 167.  The SJC agreed, holding that the Eaton decision would apply to cases that were on appeal at the time Eaton was decided (June 22, 2012) and in which a party claimed a foreclosure sale was invalid because the holder of the mortgage did not hold the note.

As many post-foreclosure challenges to the validity of the foreclosure process arise in connection with summary process proceedings (Eaton among them), it is not surprising that the Housing Court has been confronted with these issues.  But, as a court of limited jurisdiction, a preliminary issue was presented as to the scope of the Housing Court’s authority.  In Bank of America, N.A. v. Rosa, the SJC held, inter alia, that the Housing Court has jurisdiction to consider defenses and counterclaims challenging a bank’s right to possession and title, including those premised upon the validity of a prior foreclosure sale.  466 Mass. 613, 615 (2013).  The case did not, however, extend Housing Court authority to original actions to set aside a foreclosure.  Id. at 624 n.10.

The SJC’s recent decision in U.S. Bank National Association v. Schumacher limits the Court’s broad holding in Eaton.  467 Mass. 421 (2014).  Schumacher held that a mortgagee’s failure to provide notice of a ninety-day right to cure, as required by G.L. c. 244, § 35A, did not affect the validity of a foreclosure sale because § 35A is not part of the foreclosure process and, therefore, strict compliance was not required to validly foreclose.[4]  Id. at 422.  The SJC rejected Schumacher’s attempt “to engraft” the requirements of § 35A onto the power of sale because it properly viewed § 35A as a mechanism that gives a mortgagor an opportunity to cure a payment default before the foreclosure process is commenced.  Id. at 431.  As the § 35A notice procedure was viewed as a “preforeclosure undertaking,” it is not one of the statutory requirements with which a mortgagee must strictly comply in exercising its statutory power of sale.

In a concurring opinion in Schumacher, Justice Gants provided guidance to homeowners facing foreclosure.  Justice Gants opined that when a mortgage holder fails to provide notice pursuant to § 35A, a homeowner may file an equitable action in the Superior Court seeking to enjoin the foreclosure.  In a post-foreclosure proceeding, Justice Gants suggested that while a violation of § 35A may not alone be relied upon to defeat an eviction, if a defendant can prove that the violation “rendered the foreclosure so fundamentally unfair,” it may be sufficient to set aside a foreclosure sale “for reasons other than failure to comply strictly with the power of sale provided in the mortgage.”  Id. at 433 (Gants, J., concurring) (quoting Rosa, 466 Mass. at 624).

In the recent case of Sullivan v. Kondaur Capital Corporation, the Appeals Court had an opportunity to address two questions of first impression in this arena – one on standing and one regarding registered land – and a chance to rein in efforts to extend Ibanez and its progeny.  85 Mass. App. Ct. 202 (2014).  The Sullivans owned registered land and executed a mortgage conveying legal title to MERS, which mortgage was thereafter filed for registration with the Land Court.  The mortgage was assigned to Kondaur Capital, which also filed for Land Court registration.  Kondaur Capital thereafter foreclosed and filed a summary process action in the District Court.  The case for possession settled with the Sullivans reserving rights to challenge Kondaur Capital’s title, which they did by subsequently filing an action in the Superior Court based upon Ibanez.  Because the dispute involved registered land, the case was transferred to the Land Court, which has exclusive jurisdiction of such claims.  Id. at 204.

The Appeals Court first addressed Kondaur Capital’s argument that the Sullivans had no standing to challenge defects in the assignments to which they were not a party.  While acknowledging that a party who does not benefit from a contract could not enforce it, the Court concluded that the plaintiffs were not attempting to enforce rights under the contract.  Rather, the Court found the Sullivans were challenging Kondaur Capital’s claim that it owned the subject property which, but for the foreclosure, the Sullivans would still own.  The Appeals Court held that, to protect its ownership interest, a property owner has standing to challenge the bank’s authority premised upon the validity of the assignment.  Id. at 205-206.

Kondaur Capital also claimed that the plaintiffs were precluded from challenging the validity of its title because the mortgage had been registered with the Land Court, and a transfer certificate of title had issued in its name prior to the filing of plaintiffs’ action.  The Court rejected the contention, noting that there are numerous exceptions to the conclusiveness of registration.  The Appeals Court concluded that Kondaur Capital was not an innocent third-party purchaser but a mortgagee required to establish its title by reference to various instruments of assignment following the plaintiffs’ mortgage to MERS.  The Court held that Kondaur Capital was “fairly charged” with knowledge of the deficiencies in its chain of title, and its certificate of title could be challenged based upon any break in that chain.  Id. at 208.

The Appeals Court also rejected the argument that because MERS had no ownership interest in the underlying note, it could not assign the mortgage unless authorized by the debt’s owner.  The Court noted that the Eaton decision was prospective and not available to the plaintiffs and, in any case, did not require that a mortgagee hold legal and equitable title at the time of an assignment of the mortgage.  Id. at 208-210.  The Court correctly observed that “nothing in Massachusetts law requires a foreclosing mortgagee to demonstrate that prior holders of the record legal interest in the mortgage also held the note at the time each assigned its interest in the mortgage . . . .”  Id. at 210.  In fact, as the Court noted, Eaton confirmed that a mortgage could be separated from the debt it secured and, even at the time of foreclosure, the mortgage holder simply needs to demonstrate it holds the note or acts as the note holder’s authorized agent.  Sullivan, 85 Mass. App. Ct. at 210.

The Appeals Court ultimately found that the Sullivans’ challenge to the signature on the assignment to Kondaur Capital should have survived the motion to dismiss and remanded the case.  The Court ruefully observed that the circumstance presented a further illustration of “the utter carelessness with which the [foreclosing lenders] documented the titles to their assets” described in the Ibanez concurrence.  Id. (quoting U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637, 655 (2011) (Cordy, J., concurring)).

These cases have had a profound and immediate impact on the foreclosure process in the Commonwealth.  Fortunately, the cases have provided direction with regard to how a mortgagee can both comply with the applicable statutes and demonstrate its compliance in the face of subsequent challenge.  Unresolved at this stage, however, is how titles clouded by deficiencies in earlier foreclosures will be cleared – a remedy which now appears to be left to the Legislature.  Unless and until some curative legislation is signed into law, the carelessness with which securitized mortgages were documented and tracked over the last decade will deprive thousands of innocent purchasers at foreclosure of good, clear and marketable titles to their homes and properties.

 

Thomas Moriarty is a partner in the firm of Marcus, Errico, Emmer & Brooks, P.C. and chair of its Litigation Department.  He served as 2010 President of the Real Estate Bar Association, is a past co-chair of REBA’s Litigation Committee, and currently serves as Co-Chair of both the Residential Conveyancing and the Unauthorized Practice of Law Committees and as a member of the organization’s Board of Directors and its Executive Committee.  

 

Footnotes

[1] The Ibanez mortgage, like many securitized mortgages, followed a complex and tortuous path of assignments ultimately reaching U.S. Bank.  Ibanez, 458 Mass. at 641.

[2] Justice Cordy, in a concurring opinion, noted “that what is surprising about these cases” is not the statements of law “but rather the utter carelessness with which the plaintiff banks documented the titles to their assets.”  Ibanez, 458 Mass. at 655 (Cordy, J., concurring).

[3] The Eaton Court analyzed G.L. c. 244, §§ 17B, 19, 20 & 23 in detail in reaching its holding regarding the meaning of the term “mortgagee” in § 14, noting the terms “holder of mortgage note” and “mortgagee” are used interchangeably.  Eaton, 462 Mass. at 582.  Additionally, the Court points to the same conflation of meanings in G.L. c. 183, §§ 20-21.  Id. at 584 n.23.

[4] At all times relevant in Schumacher, G.L. c. 244, § 35A gave a mortgagor of residential real estate a ninety-day right to cure a payment default prior to the commencement of foreclosure and required a foreclosing mortgagee to provide notice of such right to the mortgagor.  Schumacher, 467 Mass. at 430.


Any Calls, Texts, or Photos May Be Used Against You: Warrantless Cell Phone Searches and Personal Privacy

Leone_Gerry Freedman_Linn Sylvia_Kathrynby Gerard T. Leone, Linn Foster Freedman, and Kathryn M. Sylvia

Legal Analysis

The world envisioned by the Supreme Court in Chimel v. California, 395 U.S. 752 (1969) – one where physical objects such as spare handcuff keys, drugs, gambling ledgers, and weapons could be found on the person of any arrestee – is now a much different place.  Historically, searches incident to arrest have been justified to prevent escape, the destruction of evidence and to protect the arresting officers from dangerous weapons. Smartphone technology has changed the landscape and offered new challenges for our courts.  In the vast majority of arrests these days, the police locate a cell phone on or near an arrestee, seize it, and seek to search the device pursuant to the search incident to arrest exception to the warrant requirement.  This situation obviously implicates incrimination issues, as well as privacy concerns, because one handheld device can contain enormous amounts of personal information collected over lengthy periods of time, and much or even all of this data might be arguably inadmissible or irrelevant to an individual’s conduct or intent at the time of arrest.  For this reason, courts applying the search incident to arrest doctrine must carefully balance the government’s ability to seize and use personal data of an arrestee to incriminate them, against the risk of allowing an unreasonable intrusion into our personal lives.

This article will provide an overview of the two most recent Massachusetts Supreme Judicial Court (“SJC”) decisions on the issue, and will highlight two cases currently pending before the Supreme Court of the United States.

The SJC has ruled that police can conduct a limited cell-phone search without a warrant pursuant to the search incident to arrest exception.  In both Commonwealth v. Phifer, 463 Mass. 790 (2012) and Commonwealth v. Berry, 463 Mass. 800 (2012), the SJC held that checking the arrestee’s cell phone call history in order to discover evidence of the crime of arrest was acceptable under the search incident to arrest exception to the warrant requirement.  In Phifer, officers viewed the defendant speaking on his cell phone shortly before engaging in a drug transaction.  After police arrested the defendant and a codefendant, the codefendant provided police with his phone number.  The subsequent search of the defendant’s cell phone involved a “few ‘simple manipulations’” to display the recent call logs where police matched several recent calls to the codefendant’s phone number.  In upholding the search, the Phifer court limited its ruling to the facts of that case, holding that when police had probable cause to believe the search of the cell phone would reveal evidence of crime, the search was constitutional.

But Berry presented a different situation.  The police witnessed the defendant selling heroin to a customer from within a vehicle.  Officers arrested the defendant and the customer, and seized their cell phones incident to arrest.  Unlike Phifer, neither officer witnessed either arrestee use his cell phone before or during the illegal transaction.  Still, police reviewed Mr. Berry’s recent call history and dialed the most recent number, correctly presuming that it belonged to the customer.  The SJC stated that this “very limited search” was reasonable due to the police officer’s knowledge that cell phones are used in drug transactions, even if police had no particularized suspicion that either the defendant or the customer had used a cell phone to conduct this transaction.

While the Berry court sought to limit its decision to the facts of the case, the effect is likely to be far reaching, and applied to many other scenarios.  Indeed, the facts present in Berry include 1) experienced officers with knowledge and training in drug transactions; 2) a high crime area; and 3) general knowledge that cell phones are often used in drug transactions.  Such general facts will be present in virtually every drug arrest, and thus every arrestee’s cell phone will seemingly be subject to a “limited” search incident to arrest.  The Berry court did not require any particularized nexus between the officers’ witnessing the use of a cell phone and a target drug transaction, despite a clear opportunity to do so, given the important factual differences between the usage of the cell phone in the Phifer and Berry offenses.

In April 2014, the United States Supreme Court will revisit these issues.  In People v. Riley, No. D059840, 2013 WL 475242 (Cal. Ct. App. Oct. 16, 2013), cert. granted sub nom. Riley v. California,No. 13-132, 2013 WL 3938997 (U.S. Jan. 17, 2014),the Court will consider whether a post-arrest search of the petitioner’s cell phone violates his Fourth Amendment rights. There, police stopped Mr. Riley for having expired vehicle tags.  During the stop, the police learned that he was driving with a suspended license and arrested him.  Pursuant to policy, the officers conducted an “inventory search” of his vehicle and, in the process, found guns hidden underneath the vehicle’s hood.  Officers placed the defendant under arrest and seized his cell phone.  Officers then conducted two warrantless searches of the cell phone’s content—one at the scene during which the officer scrolled through the defendant’s contact list, and one at the police station during which a different officer searched photographs and video clips contained therein.  The cell phone was a “smartphone that was capable of accessing the Internet, capturing photos and videos, and storing both voice and text messages, among other functions,” according  to Mr. Riley’s certiorari petition. Mr. Riley was charged with attempted murder and assault with a semiautomatic weapon, based in part on the contents seized from his cell phone—including infamous gang-members’ names and incriminating photographs—that proved critical to the government’s investigation and charging decision.

Mr. Riley argues in his Petition that “Federal courts of appeals and state courts of last resort are openly and intractably divided over whether the Fourth Amendment permits the police to search the digital contents of an arrestee’s cell phone incident to arrest.  This issue is manifestly significant.”  While the State, in its opposition brief, “acknowledges that there is a growing conflict concerning whether the Fourth Amendment permits law enforcement officers to search the contents of a cell phone incident to arrest,” it argues that the police officers’ search of Mr. Riley’s cell phone did not constitute a Fourth Amendment violation.  In support of its position, the State argues that courts “categorically allow the police to search any item of personal property on an arrestee’s person at the time of his lawful arrest,” if the search was reasonable.

A second case accepted by the United States Supreme Court, United States v. Wurie, 728 F.3d 1 (1st Cir. 2013), cert. granted, No. 13-212, 2013 WL 4402108 (U.S. Jan. 17, 2014), addresses whether the Fourth Amendment permits the government to conduct a post-arrest warrantless search of an arrestee’s cell phone call log.  There, the police witnessed what they believed to be a drug transaction within a vehicle.  Police arrested the defendant for distributing crack cocaine and removed him to the police station.  The officer seized two cell phones from Mr. Wurie and eventually used the personal contacts and telephone numbers to determine his home address.  Officers then obtained a search warrant for Mr. Wurie’s home where they discovered a firearm, ammunition and drug paraphernalia.  The government convicted him of numerous drug crimes and for being a felon in possession.  On appeal, the First Circuit overturned his conviction, holding that the search incident to arrest exception “does not authorize the warrantless search of data within a cell phone that is seized from an arrestee’s person” unless another exception to the warrant requirement applies.

The Solicitor General submitted a writ of certiorari arguing that it is well-settled that “a custodial arrest based on probable cause justifies a full search of an arrestee and any items found on an arrestee, including items such as wallets, calendars, address books, pagers and pocket diaries.”  He further argued that “the cell phone at issue was a comparatively unsophisticated flip phone” and, as a result, this particular case is not suitable for determining the scope of Fourth Amendment rights pertaining to cell phone searches.

The State advanced similar arguments below, and the First Circuit considered and disagreed with each.  As to the argument that police may search any item on the arrestee, the First Circuit held that Chimel does not authorize even a limited warrantless search of a cell phone because such a search is not necessary to preserve destructible evidence or promote officer safety.  The First Circuit also rejected the idea that the particular phone’s storage capacity should be a factor, quoting the Seventh Circuit’s reasoning that “[e]ven the dumbest of modern cell phones gives the user access to large stores of information.”

It would seem that, even if the Supreme Court holds that searches of cell phones incident to arrest are constitutional, there must be a reasonableness standard applied to limit and condition the nature, scope and extent of such searches.  The implication of the upcoming decisions may be far reaching.  As the First Circuit in Wurie recognized, the evolution of technology makes the government’s reach into private data ever more problematic.  Today, individual cell phones act as bank cards, home security surveillance portals, and repositories for intimate details such as personal health information and social security numbers.  Tomorrow, technology will turn another corner, allowing more information to be immediately available to whomever may access a personal cell phone.  As technology evolves, and personal e-data continues to be inextricably intertwined with our everyday lives, the law as it applies to devices that possess such personal information will be critical to the debate over personal privacy and governmental intrusion.

Gerry Leone is a former Middlesex County District Attorney.  He is a partner with Nixon Peabody LLP and conducts internal and governmental investigations for public and private clients.  Gerry also represents individuals and organizations facing complex civil and criminal matters.

Linn Foster Freedman is a partner with Nixon Peabody LLP and is leader of the firm’s Privacy & Data Protection group. Linn practices in data privacy and security law, and complex litigation.

Kathryn M. Sylvia is an associate with the firm and member of the firm’s Privacy & Data Protection team. She concentrates her practice on privacy and security compliance under both state and federal regulations. 


Judging Judges

by Chief Justice Paula Carey and Judge Janet Sanders

Voice of the Judiciary

Carey_Paula Sanders_JanetYou open your email and there it is – a special invitation from the Supreme Judicial Court.  You have been chosen to evaluate those trial court judges sitting in a county in which you have recently appeared on a case.

Your participation is critical, it says.  And if you do participate, your identity cannot be determined.  You are skeptical of both statements.  No one will take what you say seriously anyway, right?

Wrong.  The SJC’s Judicial Performance Evaluations program, now twelve years old, is more robust than ever.  It is the cornerstone of a larger effort to improve and enhance the judiciary on a state wide basis.

If you complete the evaluation, your responses together with the responses of other attorneys who have appeared before that judge in the preceding two years are shared not only with the evaluated judge but also with that judge’s chief.  The results of the evaluation can have a real impact on deciding what steps judges should take to further develop their judicial skills.

The current evaluation instrument asks attorneys to rate a particular judge on sixteen attributes indicative of judicial performance.  Does the judge dispose of judicial matters in a timely manner?  Does she treat lawyers and litigants with respect?  Does the judge appear to have a good grasp of the law?  Is he free from bias?

The instrument also gives lawyers a chance to explain their ratings with written comments.  These comments can be valuable – provided they are constructive.  To say that a judge is “bad” provides no guidance as to how that judge might modify his behavior.  On the other hand, constructive comments can provide a judge with valuable insight into how he or she is perceived by others.

And yes, the evaluating attorney’s identity remains confidential.  No one will know who you are.  When you fill out the evaluation, you are randomly assigned a number by the evaluation software and it is literally impossible to track backward to your name once you have responded.  But that anonymity carries with it certain responsibilities.  This is a lawyer’s chance to be helpful, not hurtful.

So you fill out the evaluation.  What happens to it? There is a general misimpression among the bar that the results go into a black hole – or at least into someone’s drawer, never to be looked at again.  That is far from the truth.

First, the results are tallied and a report is put together.  That report contains a wealth of information.  It shows not only how many attorneys responded but also gives a breakdown as to how many years they have been practicing, what percentage of their practice is focused on litigation, and how many hours in the last two years they were able to observe the judge whom they evaluated.

That’s important to the individual judge.  If a large percentage of the respondents are experienced litigators (as they often are), then it is hard to brush off what they have to say.

The report will also show how a particular judge fared compared to her colleagues – indicating not only the composite results for all judges in her department dating back to 2001, but also the results of judges in other departments evaluated in that round.  Judges take pride in their work: to realize that that one is not measuring up in comparison to others doing the same job can be a real motivator for change.

Before the report is distributed to the judge, he is asked to do his own self-evaluation.  This too can be a tool for self-improvement.  If there is a large gap between the scores a judge gives himself and those that he actually received, then the judge knows that there is reason to look more closely at his behavior.

Once the judge and that judge’s chief receive the report, a time and date is set for the two to sit down and discuss the results.  These meetings are not perfunctory.  They are lengthy and involve a frank interchange regarding any difficulties that the judge has encountered on the job.

Because each judge gets evaluated at least once every three years, the judge can compare the current results to those of prior years to see if there has been any noticeable change.  If there has been a change for the worse, then the meeting provides the opportunity for the judge and her chief to talk about why the change might have occurred and to brainstorm about what could be done to turn things around.

Attorney comments too may help identify a problem area for the judge.  A couple of critical comments may not tell much, but if there are many attorneys saying the same thing, then the comments may illustrate to the judge that something needs to be done.

The SJC has set a minimum standard that all judges are expected to meet in their ratings on the judicial attributes set forth in the evaluation instrument.  A very large majority exceed that standard by a large measure.  But for those few who fall below that standard, a written enhancement plan must be developed by this judge and his chief.

This plan will describe the steps the judge will take to remedy any deficits in performance.  Perhaps the judge needs more training in a certain substantive area, or some assistance in writing.  The judge may be assigned a more experienced judge as a mentor, or urged to shadow another judge for a time.  Follow-up meetings will be scheduled between the judge and his chief.

Precisely because judicial evaluations are taken so seriously within the judiciary, the SJC has recently formed a committee that is reexamining the evaluation instrument to see how it could be improved. This committee, which consists of judges, law professors, and two members of the bar, is also considering what kinds of additional information could be gathered as part of the evaluation process so that each judge and her chief have the most complete picture of how that judge is performing her duties.

The judiciary has not always embraced judicial evaluations, of course.  The statute that mandated them, G.L. c 211 §26, was enacted in 1988.  Each court department fashioned its own program, but the lack of uniformity and consistency provoked a demand from the bar that something more needed to be done.

In 1999, then Chief Justice Herbert Wilkins appointed a committee of judges, each of whom represented one of the seven trial court departments, and in 2001, the first set of evaluations went out to Bristol and Plymouth Counties. Every judge in the state has been evaluated – most of them multiple times – since every three years, the process begins anew.

Judicial evaluations tell only part of the story, however.  In recent years, the SJC through various working committees has developed additional programs aimed at enhancing judicial performance.

For example, every trial court department now has a peer observation program, where judges are paired up to watch each other in court and provide feedback.  Constructive criticism that comes from a colleague is more likely to be heeded than advice from any other source.

Several court departments have also implemented a program whereby a judge is videotaped, then reviews the tape with a colleague.  And every court department has developed a comprehensive training program for all new judges, each of whom is assigned a trained “mentor” judge who meets regularly with the new judge throughout the first year.

Programs that focus on demeanor and temperament are now a regular part of judicial education.  And there are far more opportunities than there had been in the past for judges to meet across court departments and discuss issues of common concern.

In short, the judiciary has come a long way from that not so distant past when judicial evaluations were considered an anathema.

The irony of it all is that, just as the judiciary is accelerating its efforts to make sure all judge perform at the highest level, interest among the bar in the evaluation process has steadily declined.

Initially, about one third of attorneys who received an evaluation form filled it out and returned it.  Now that figure is close to a quarter or even a fifth.  When evaluations first began, a judge would typically receive ratings from well over a hundred attorneys.  That number has decreased to 70 or 80 – well over the 25 responses required in order for a report to be compiled – but nevertheless cause for concern.

This decline has taken place even as the program has gone online, with the ability to generate reminder notices to those who receive the invitation to participate.

With fewer responses, the evaluation results are less likely to reflect the views of a broad cross section of the legal community, thereby making the results less helpful.

So next time you get that special invitation in your email, don’t delete it.  Take the time to complete the evaluation.  Think through the comments you make so that they will be of some help to the individual judge who reads them.  Your response is important.  After all, it is in everyone’s interest that the judges in this state do their jobs well.

Hon. Paula M. Carey is Chief Justice of the Trial Court.  She was appointed to that position on July 16, 2013.  Prior to that, she was the Chief Justice of the Probate and Family Court, appointed on October 2, 2007.  She was appointed an Associate Justice of the Norfolk Probate and Family Court in 2001. 

Judge Janet L. Sanders has been a justice of the Superior Court since 2001. Between 1995 and 2001, she was a District Court judge, assigned first to Waltham and then to Concord as the Presiding Justice. She is currently the Administrative Justice of the Business Litigation Session.


Foreword from the Editors

Preface

Ten years ago today, in Goodridge et al. v. Department of Public Health, the Massachusetts Supreme Judicial Court came to what seemed then a stunning conclusion: the state’s constitution forbid discrimination against same-sex couples who wanted to marry.  It takes a leap of imagination to think back to that time; a decade has wrought change so profound and extensive that one can almost forget how bold the decision was.  Ten years on, fifteen states, from Vermont to Hawaii, now recognize same-sex marriage.  This year, the United States Supreme Court ruled that the federal government cannot discriminate against lawfully married same-sex couples.  The legal changes have spurred cultural changes; an internet search for “Goodridge decision” yields, among other things, an option for “Goodridge decision wedding reading.”  To the Song of Solomon, Shakespeare, Browning, and Neruda, now add Chief Justice Marshall.  A decade later, we reflect on Goodridge with this special issue.

– The Boston Bar Journal Board of Editors