Truth and Justice with Capital Letters

by Hon. Margaret H. Marshall and Marina Pullerits

Voice of the Judiciary

Human reason is beautiful and invincible.
No bars, no barbed wire, no pulping of books,
No sentence of banishment can prevail against it.
It establishes the universal ideas in language,
And guides our hand so we write Truth and Justice
With capital letters, lie and oppression with small.
It puts what should be above things as they are,
Is an enemy of despair and a friend of hope. . . .

Czeslaw Milosz, Incantation. Translated by Cseslaw Milosz and Robert Pinsky.

January 9, 2020: The question comes near the end of oral argument. “What is the obligation of the Court,” asks the Chief Justice, when defense counsel reports allegations of racism in jury deliberations that may have changed some votes to guilty? The Chief Justice repeats the question: “What’s a judge’s obligation” in such circumstances? The answer comes on September 24, 2020, ten days after his death. It is the obligation of a judge to address promptly any allegation that racial or ethnic bias may have infected the jury deliberations, the Chief Justice wrote. Commonwealth v. McCalop, 485 Mass. 790, 791 (2020). “A guilty verdict arising from racial or ethnic bias not only poses a substantial risk of a miscarriage of justice,” he continued, “but also, ‘if left unaddressed, would risk systemic injury to the administration of justice.’” Id. (quoting Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 868 (2017)).

Ralph D. Gants served as Chief Justice of the Supreme Judicial Court from 2014 to 2020. McCalop, and several more of his final opinions, are exemplars of the tenets he held for guiding the Massachusetts judiciary. Each opinion is beautifully written, carefully reasoned. Each holds in equipoise the resolution of the case at hand, and the articulation of broader principles, signposts to ensure future decisions will be fair, just, and sensible. Each is a painful reminder of how much we have lost by his untimely death. Chief Justice Gants wrote to establish universal ideas in language; human reason guided his hand to write Truth and Justice with capital letters.

In two of Chief Justice Gants’ last opinions, the Court recommended changes to the Model Jury Instructions on Homicide.[1] In Commonwealth v. Castillo, 485 Mass. 852 (2020), released on October 6, the Court set aside a conviction of murder in the first degree and reduced the degree of guilt to murder in the second degree because, the Chief Justice wrote, the Model Jury Instructions on the meaning of “extreme atrocity and cruelty” did not adequately distinguish between murder in the first and second degree. Id. at 854. “The defendant’s conduct—firing a single shot into the victim’s back—was stupid, senseless, and cowardly,” he wrote. Id. at 867. “Indeed, where it tragically caused the death of a young man, it was atrocious and cruel. . . . But extreme cruelty means that the defendant caused the person’s death by a method that surpassed the cruelty inherent in any taking of human life . . . . Nothing about the facts of this case suggests that the defendant’s conduct met that standard.” Id. at 867–68 (emphasis in original) (quotation and citation omitted). The Court included a new provisionally revised model jury instruction to better distinguish conduct that warrants a conviction of murder in the first degree from conduct that should result in a conviction of murder in the second degree. Id at 865–66, 869.

In Commonwealth v. Dunphe, 485 Mass. 871 (2020), released on October 7, Chief Justice Gants again authored an opinion vacating a conviction of murder in the first degree because of inadequate jury instructions, this time regarding the defendant’s criminal responsibility for the killing. The defendant, suffering from hallucinations and a false belief that the victim was his abusive father, had killed a fellow patient in a psychiatric ward. Id. at 872. The trial judge instructed the jury in a way “that closely tracked” the Model Jury Instructions. Id. Nevertheless, the Chief Justice wrote, there was a “significant risk” that the jury could misunderstand those instructions. Id. at 889. “What our case law declares, but our model jury instructions do not, is that if a defendant has a mental disease or defect, its origins are irrelevant: it does not matter whether the disease or defect arose from genetics, from a childhood disease or accident, from lead poisoning, from the use of prescription medication, or from the chronic use of alcohol or illegal drugs. . . . A drug-induced mental disease or defect still constitutes a mental disease or defect for purposes of a criminal responsibility defense.” Id. at 880–81 (citation omitted). “Intoxication from alcohol or the high from drugs is not a mental disease or defect where the loss of capacity ends when the effects of the alcohol or drug wear off; a mental disease or defect is something more enduring, reflecting something about the person’s brain chemistry that, although perhaps not permanent, is more than the transient effect of the person’s substance use,” he wrote. Id. at 880. The Court again included provisionally revised model jury instructions “to address what we conclude is a potential and problematic risk of confusion.” Id. at 873, 884–89.

As a final example, a district court judge’s ruling that a defendant violated a condition of probation by reporting on a sex offender registration form that his work address was his home—without also reporting as a work address a home in Lynn where he was doing repair work—came under scrutiny in Commonwealth v. Harding, 485 Mass. 843 (2020), released on October 5. The Court reversed in an opinion authored by the Chief Justice, where his search for what he would term “sensible” outcomes is clear: “The interpretation [of ‘work address’] that the Commonwealth asks us to adopt would suggest that a registrant who is self-employed might not be self-employed at all, because each client for whom the registrant provided services for the requisite time period would be deemed the employer, whose address the registrant would be required to record. No reasonable registrant filling out this form would understand the form to ask for this information. Nor would the Commonwealth’s interpretation make practical sense.” Id. at 847. “[I]f the defendant, or other self-employed registrants like him, were required to provide a client’s address as a ‘work address,’” he continued, “many clients who might otherwise hire him might refrain from doing so because they might not want their home address listed on SORB’s website as the sex offender’s place of employment. As a result, the otherwise self-employed sex offender might soon be functionally unemployed.” Id. at 849.

Ralph Gants ended his tenure as Chief Justice as he began it. In remarks delivered when he took the oath of office on July 28, 2014 he said: “I firmly believe that our judicial system will be in a better place in the next three, five, ten years. My confidence does not rest in my belief in me, because I know that I can accomplish none of this alone. My confidence rests in my belief in we, in what I call our justice team. . . . If we are willing to search for new ways to solve old problems, if we are willing to put our egos aside and remember that it is not about us, if we are willing to work our tails off, if we are willing to work together, I know that we can build a justice system that will not only dispense fair, sensible, and efficient justice, that will not only help to address the formidable problems faced by so many of the residents of this Commonwealth, but that will be a model for the nation and for the world.”

Ralph Gants searched for new ways to solve old problems. He worked his tail off. He put aside his ego and worked with others to build a model judicial system. In oft-cited remarks, Oliver Wendell Holmes, Jr., then an Associate Justice on the Supreme Judicial Court, said: “The law is the calling of thinkers. But to those who believe with me that not the least godlike of man’s activities is the large survey of causes, that to know is not less than to feel, I say—and I say no longer with any doubt—that a man may live greatly in the law as well as elsewhere; that there as well as elsewhere his thought may find its unity in an infinite perspective; that there as well as elsewhere he may wreak himself upon life, may drink the bitter cup of heroism, may wear his heart out after the unattainable. . . .” Chief Justice Ralph D. Gants wore his heart out seeking to address the formidable problems faced by so many. He wreaked himself upon life. Why? He was simply being Ralph.

[1] The Justices first approved and recommended the use of Model Jury Instructions on Homicide in 1999. The Court issued revised Model Jury Instructions in 2013. In April 2018, the Supreme Judicial Court again released revised Model Jury Instructions on Homicide.

Margaret H. Marshall is Senior Counsel at Choate Hall & Stewart LLP. She served as Associate Justice (1996–1999) and as Chief Justice (1999–2010) of the Supreme Judicial Court.

Marina Pullerits is an Associate at Choate Hall & Stewart LLP. She served as a law clerk (2018–2019) to Chief Justice Ralph D. Gants.


Aligning Science and Law in the Realm of Eyewitness Identification Evidence

by Eric A. Haskell*

Legal Analysis

This article represents the opinions and legal conclusions of its author and not necessarily those of the Office of the Attorney General.  Opinions of the Attorney General are formal documents rendered pursuant to specific statutory authority.

On February 6, 2009, eight days after then-associate Justice Ralph Gants joined the Supreme Judicial Court, the court heard argument in Commonwealth v. Silva-Santiago, an appeal from a murder conviction in which the defendant challenged the reliability of photographic arrays that had led several eyewitnesses to identify him as the killer.  Although not apparent at the time, Silva-Santiago marked the first step of an effort that would transform the relationship between scientific knowledge and the law of identification evidence in Massachusetts.  That effort was the work of Chief Justice Gants, and it forms a remarkable part of his legacy.

The rudiments of that effort were visible in Justice Gants’s opinion for the court in Silva-Santiago, which was released later that spring.[1]  That opinion rejected the defendant’s contention, for which there had been expert evidence at trial, that the identifications were unreliable and should not have been admitted into evidence because the photographs used in the arrays were shown to the eyewitnesses simultaneously rather than sequentially.  Citing two law review articles and an article published by the American Psychological Association, Justice Gants acknowledged a “debate among scholars and practitioners [as to] whether the sequential showing of photographs leads to greater accuracy” over a simultaneous showing, and concluded that, “[w]hile that debate evolves,” identifications produced through either procedure would be admissible.

This rationale was both curious and significant.  The legal issue in Silva-Santiago was whether the identifications were so “unnecessarily suggestive” as to offend due process.  Why look to an academic debate to resolve that legal issue, especially when expert evidence bearing on the answer was present in the record?  And why seek conclusiveness in that academic debate before declaring an answer as a matter of law?  In retrospect, Justice Gants’s reasoning in Silva-Santiago hinted at his ambition to align the law with the science behind identification evidence.

Two years later, in Commonwealth v. Walker, Justice Gants wrote for the court to again reject the argument that the court had rejected in Silva-Santiago.[2]  But Justice Gants’s opinion in Walker also took the next step: characterizing identification evidence as “the greatest source of wrongful convictions but also an invaluable law enforcement tool in obtaining accurate convictions,” it announced that a study group would be charged, among other things, with considering a new model jury instruction on “evaluating eyewitness testimony.

The SJC had adopted a model instruction on identification evidence in 1979,[3] and had periodically modified it thereafter.[4] That instruction exhorted the jury, when evaluating whether the government had proven the defendant’s identity as the perpetrator, to take into account certain abstract and neutral considerations such as the identifying eyewitness’s opportunity to observe the perpetrator, the circumstances surrounding the identification, and the eyewitness’s overall credibility.

The study group created after Walker returned its report in the summer of 2013.[5]  The report urged the SJC to take “judicial notice” of certain “psychological principles” concerning the mechanisms of memory and recall, as well as of factors that were said to diminish the reliability of those mechanisms.  It also proposed a new jury instruction that, beyond reciting abstract considerations, would instruct the jury as to many of the same scientific principles and factors of which judicial notice was urged.

It is important to appreciate the nature of the study group’s proposal.  Juries, of course, deal with science all the time, in the form of expert evidence that the court has deemed likely to be helpful in determining the facts of the particular case.[6] But what the study group proposed was qualitatively different: its proposal was, in effect, to adopt certain scientific knowledge as legal precepts to be applied in all cases.  That the scientific principles urged by the study group were well-established in the literature perhaps obscured a lurking tension: while scientific knowledge is factual in nature, iterative, and falsifiable, jury instructions are legal in nature, immutable, and to be accepted by the jury as true.

Justice Gants was promoted in the summer of 2014 and, on September 2 of that year, presided over his first arguments as Chief Justice.  Featured on the calendar that day were four appeals concerning aspects of eyewitness identification.  Chief Justice Gants wrote the opinion of the court in each of them.

Three of those opinions invoked and relied upon the science urged by the study group.[7]  But it was the fourth opinion, in Commonwealth v. Gomes,[8] that transformed the relationship between the science and the law of eyewitness identification evidence, for Gomes presented the issue of what jury instruction ought to be given concerning such evidence.

In Gomes, Chief Justice Gants adopted a highly modified version of the study group’s proposal.  The resulting jury instruction, which was appended to the Gomes opinion, continued to exhort the jury to consider things such as the witness’s opportunity to view the perpetrator and the quality of the witness’s perception.  But it additionally limned a three-stage scientific “process of remembering,” and identified situation-specific factors—such as “the visible presence of a weapon . . . if the crime is of short duration,” “high levels of stress [felt by the eyewitness], compared to low to medium levels,” and “information the [eyewitness] received between the incident and the identification, as well as after the identification”—that, juries were to be instructed, would diminish the reliability of the identification.  Chief Justice Gants explained that it was appropriate to incorporate these precepts into the “judge’s instructions of law, which the jury generally must accept,” because “there is a near consensus in the relevant scientific community . . . .”

The Gomes instruction represented an unprecedented infusion of scientific principles into the judge’s instructions of law.  But it could not be said to perfectly align the science with the law because, as noted, science is dynamic and is susceptible of being disproven.  Chief Justice Gants was mindful of these limitations, acknowledging that “even a principle for which there is near consensus is subject to revision based on further research findings, and that no principle of eyewitness identification should be treated as if set in stone.”  Anticipating the possibility that the principles embodied in the Gomes instruction might be disputed or overtaken by later research, his opinion authorized litigants to offer expert evidence to challenge, and potentially supersede, the instruction.  And, acknowledging that, “as the science evolves, we may need to revise our new model instruction[],” his opinion reconstituted a committee on eyewitness identification to monitor the development of the science and recommend updates.

The influence of Chief Justice Gants’s efforts to align the law with the science of identification evidence is visible in later SJC decisions that:

  • Presumptively required an instruction that “people may have greater difficulty in accurately identifying someone of a different race than someone of their own race,” unless all parties agreed that no such instruction is appropriate;[9]
  • Going beyond identification evidence, deemed advances in scientific understanding of the “shaken baby syndrome” as potential grounds for granting a new trial;[10] and
  • Looked to “the latest advances in scientific research on adolescent brain development and its impact on behavior” to inform the definition of cruel and unusual punishment vis-à-vis late-teenaged offenders.[11]

Chief Justice Gants’s efforts on this score not only changed the law, they changed the relationship between science and the law in the Commonwealth.  As the influence of these changes continues to reverberate, they showcase Justice Gants’s wisdom in recognizing both the promise and the limitations of science in helping to improve justice.

Eric A. Haskell is an Assistant Attorney General whose practice encompasses both civil and criminal matters. He recalls fondly his argument before Chief Justice Gants in Boston Globe Media Partners LLC v. Chief Justice of the Trial Court, No. SJC-12681. That argument lasted approximately forty minutes, despite having been scheduled for fifteen—and it was not the longest argument presented in that case that morning!

*This article represents the opinions and legal conclusions of its author and not necessarily those of the Office of the Attorney General.  Opinions of the Attorney General are formal documents rendered pursuant to specific statutory authority.

[1] 453 Mass. 782 (2009).

[2] 460 Mass. 590 (2011) (“[I]t is still too soon to conclude that sequential display is so plainly superior that any identification arising from a simultaneous display is unnecessarily suggestive and therefore must be suppressed.”).

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

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

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

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

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

[8] 470 Mass. 352 (2015).

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

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

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


Interview with Robert Vitale

by Stephen Riden

Viewpoint

As chair of the Boston Bar Journal, I had the opportunity to talk with Robert Vitale, Chief Court Officer of the Supreme Judicial Court, about his professional and personal relationship with Chief Justice Gants. What follows is an excerpt of our discussion, condensed and edited for clarity. 

Q: Over the years you must have met a lot of judges. What was your first impression of Justice Gants?

 A: Yes, I have. However, Chief Justice Gants stood out because I could tell he was a very kind and caring person. It was easy to see how passionate he was about his work and that he had a great sense of humor.

Q: How would you generally describe Justice Gants?

A: I would describe him as an all-around great guy and a good friend. He was very humble, compassionate, and intelligent. He cared about everybody. He had endless energy. Frankly, I don’t know how he kept up the schedule he did. I feel like he worked twenty hours a day seven days a week.

Q: Could you provide an example?

 A: In addition to his regular work schedule, he made it a point to go out and visit different courts around the state. The purpose for the visits was so that he could meet as many court employees as possible.

Typically, the visit would start with a small meet and greet with the court’s ”management team,” the judges, magistrates, registrars, chiefs and assistant chiefs of probation and security. He would discuss a variety of issues and answer any questions they had.

From there, assuming the court had a jury pool, he always wanted to address the jurors. He wanted to thank them for their service and let them know the importance of the work they were doing for the Commonwealth.

He would then take a tour of the court. This would include going to each department and stopping by everyone’s desk to say hello. He did not want to disturb anyone, but he wanted to meet as many employees as possible to say hello and thank them for the important work that they do every day.

In addition to meeting the staff, he always wanted to have an employee luncheon. This was his favorite part of the visit. The luncheon was only for “line” staff, not management. He said it was important for him to meet the employees who are in the trenches and on the front lines. He always told them that he valued their perspective and that they should not hold back on their opinions. He wanted to hear the good, the bad, and the ugly. He took notes and let the staff know that whatever was said at the luncheon was confidential and that he appreciated their honesty.

Q: He seems like the kind of guy who could talk to anyone, is that right?

A: Absolutely. I would say that, given the position he was in, I don’t think you ever felt like you were talking to the Chief Justice – he was just so easy to talk to. He had a great sense of humor, he was quick witted, and he never took himself too seriously.

Q: What can you share about how he treated lawyers who appeared before him?

A: He treated everybody with respect. If he disagreed with an attorney, he always did it respectfully and did not embarrass anyone. For him, it was always about being fair, respectful and trying to get the right result.

Q: I understand that he was always looking for opportunities to make improvements to the court system. Did you observe that in your interactions with him?

A: Absolutely. He was always open to hearing new ideas. If something wasn’t working, you were free to tell him it wasn’t working and why you thought it wasn’t. He did not have the “my way or the highway” mentality. He would always ask, “what can we do to fix it?”

Q: Do you have a sense of what else he wanted to accomplish?

A: One of the things that he was most passionate about was access to justice. He worked tirelessly to promote and expand access to the courts for everyone in the Commonwealth.

At the time of his death, he was working on several issues that were priorities for him. These included the Massachusetts Eviction Moratorium that was set to expire on October 18, racial injustice, and criminal justice reform.

Q: Is there anything else you would like to share?

A: Chief Justice Gants was an avid sports fan. He followed all the New England sports teams but he really loved the Boston Red Sox. On July 28, 2014, he was invited to throw out the ceremonial first pitch before the Red Sox played the Toronto Blue Jays.

He told me he had been practicing to make sure that he didn’t bounce the ball before the plate. He was both excited and nervous at the same time but it was such an honor to have been asked.

Lastly, I would say that we are all going to miss him, certainly those of us who worked closely with him every day. This is a huge loss for the court system in general. He wasn’t just my boss and colleague, he was also my friend.

Stephen Riden is a commercial litigator at Beck Reed Riden LLP, who represents corporate and individual clients in a wide array of disputes across the country. He is the chair of the Boston Bar Journal.


Access to Justice: Reflections on Chief Justice Gants

by Susan M. Finegan

Viewpoint

It was a privilege to partner so closely with Chief Justice Gants on access to justice initiatives over the past ten years, having served with him for ten years as a member of the Massachusetts Access to Justice Commission (commission), and then as his commission co-chair.  Throughout his time on the Supreme Judicial Court (SJC), he cared so deeply about access to justice, constantly thinking strategically about ways to make the civil justice system more accessible and fair.  Soon after his appointment as an associate justice of the SJC, Chief Justice Marshall approached him to become the co-chair of the commission.  This new role was his first engagement with civil legal aid and access to justice issues; true to form, he rolled up his sleeves to learn as much as possible, and energetically set to work.  Four years later, during the appointment process for the Chief Justice position, he filled at least two pages of his application describing the various commission projects on which he collaborated with so many during his first years on the commission.  In fact, in answering the judicial application question, “What are you most proud of?,”  he listed his work as co-chair of the commission first.  Certainly he did not lack for other professional achievements in his decades-long, storied career as a trial lawyer and trial and appellate judge, but his commission work clearly embodied the essence of what was truly important to him, as a judge and a person.  

His emphasis on collaboration and teamwork was one of the hallmarks of his commission work.  Throughout his tenure as co-chair, he encouraged people to work with him and engaged deeply with them – applying his laser focus and astonishing work ethic to every project.  He relished working with the impressive and committed people of the commission, many of whom he had not met before joining, and likely would never have met had he not been asked to take on the co-chair role.  He made the work enjoyable, too, by connecting with people on a human level, not just as Chief.  He mixed his dry sense of humor with a dizzying familiarity of outdated cultural references and an encyclopedic knowledge of sports.   

During his Chief Justice nomination period, he spoke several times about life lessons learned from his parents.  The first was from his father, a French and German wine salesman to restaurants and liquor stores in New York.  His father was always mindful of the concept of continued performance, saying often, “They don’t care what you did last year; they care what you are going to do this year.”  The Chief Justice took that advice to heart in all of the work that we did together.  He was an energetic man of action – on the commission, as Chief Justice, and nationally.

On the commission, for the better part of the last decade, he pushed us to be a “working” commission, transforming the organization into a more proactive organization.  Every summer, he loved holding commission retreats at his house to develop a strategic plan of action for the coming year.  He encouraged us in those meetings to think deeply with him about the important issues we faced, insisting that we left the retreat with three or four actionable goals that we could achieve by year’s end, and, inevitably, with an overflowing bag of leftover muffins and sandwiches. 

He would often say to me that the commission needed to do things, not just create reports to have them “collect dust on shelves.”  So, when we did produce reports, they had to have a purpose.  A prime example of this is a report we worked on together four years ago, the Justice For All Strategic Action Plan.  This project involved putting on paper a vision for the how the courts could transform how they handled those case types – family law, housing law, and consumer debt – where a majority of the litigants were unrepresented.  We were one of the first states to work on such a project, so there was no blueprint for how it was supposed to be framed.  We spent a year conducting outreach, convening committee meetings, and holding retreats.  Then the time came, around Thanksgiving, to start drafting.  When the consultant we had hired to produce the first draft left the project unexpectedly, the Chief Justice did not miss a beat: he just rolled up his sleeves with a small team of us and started drafting.  Then, as any experienced appellate judge would do, he started editing, and then continued editing, and editing some more.  I never admitted this to him, but I was quite satisfied with the report on the twentieth round of edits, but he insisted that we continue, through Christmas Eve, to round twenty-five.  The action-oriented plan we finalized has served as a blueprint for much of our commission’s work for the last four years, and will for the years to come.

He also used his role as co-chair of the commission to advocate for changes in the court system.  For example, several years ago, he asked commissioners to draft a report on a relatively new concept established by a few other states called “court service centers,” which could assist unrepresented litigants.  That report, authored by commissioner (and former BBA president) Tony Doniger, helped lay the groundwork for the court to fund two pilot court service centers the following year.   Likewise, the Chief leaned on the commission at the start of the COVID-19 pandemic, and the resulting court building closures, to provide constructive feedback on the court user experience during that time. 

He carried his passion for access to justice through to his work on the SJC.  He used his judicial role to ensure that the voiceless in the court system had a voice.  And he availed himself of every tool at his disposal, including: drafting opinions that impacted low income litigants; making rule changes that were equitable for all litigants, including the unrepresented; and expanding the court budget to increase the number of court service centers to assist more unrepresented litigants.  He used his many speaking opportunities, such as the annual State of the Judiciary, to advocate for the racial justice, civil rights, criminal justice reform, and access to justice, issues about which he cared deeply.  As he observed in his most recent State of the Judiciary address:

Until we create a world in which all who need counsel in civil cases have access to counsel, we must do all we can to make the court system more understandable and accessible for the many litigants who must represent themselves.

He was also a man of action on the national stage.  As a dynamic member and leader of the Conference of Chief Justices and of the Justice For All Initiative, he deftly pressed other state courts to make justice more accessible to all.  He created conference agendas and suggested keynote speakers to have other judges think about issues impacting those marginalized by the justice system.  He also drafted policy resolutions addressing access to justice, consumer debt, and racial justice.  Then, he used his political savvy to figure out the best way to ensure they were adopted, which often meant strategically asking someone else to take the lead in promoting the resolution.  In his application to be considered for Chief Justice, he said:  “I would like to believe that, if named as Chief Justice, I could play a national leadership role in advocating for access to justice, because I think Massachusetts is becoming a national leader in exploring innovative ways to provide access to all.”  He lived out that aspirational goal through his actions and words every day he served as Chief Justice.

Another life lesson he shared during his nomination process was from his mother, who judged everyone by how they treated others.  The highest praise she could give to a person of accomplishment was that he “was a regular guy.”  As in, “that Jonas Salk invented the polio vaccine, but he was just a regular guy.”  He took that advice to heart in the way that he focused on how a typical court user would experience walking through the courthouse doors.  In fact, he had a favorite hypothetical litigant, Mrs. Alvarado, a low income single mother of two who lived with her disabled mother.  He used this example to educate himself, and others, to better understand how she would experience the courts in her family’s high stakes eviction process.

Living his mother’s credo, as the Chief Justice, he could have stayed in his ornate office on the second floor of the Adams Courthouse, and bask in his many accomplishments, yet he chose to venture out, physically and emotionally, to focus on those in our community who did not have access to such privilege.  He felt a great responsibility as Chief Justice and as the leader of the court system to try to understand what it was like to come to court with no attorney, with no facility with language, with insecure immigration status, or with no access to technology.  He was especially concerned about the “court user experience” during his last seven months, during the pandemic, when access to court buildings was closed to most litigants and self-represented litigants had to figure out how to find and use remote court systems.  He valiantly worked with other court leaders to address the many challenges the court system faced.  He sought out feedback – the good and the bad – to make improvements where he could, noting that it was imperative for the court to know what was happening on the ground. 

He continued to think about those litigants in the final months, and moments, of his life, when he focused almost exclusively on the looming eviction crisis resulting from the pandemic and the ensuing economic recession.  He had previously described this eviction crisis as “the greatest access to justice challenge of our lifetime.”  On the morning of his death, the Chief Justice and I spoke for more than a half hour about his deep concerns on the eviction front, strategizing on solutions as we often would.  I take some solace in the fact that he spent the last hours of his incredible life using the gift of his intellect and the privilege of his power as Chief to help the many desperate people impacted by this pandemic.  

In one of his last speeches as Chief Justice, at the Access to Justice Fellows “graduation” event this past June, he quoted from the opening lines of Charles Dickens’ The Tale of Two Cities, which he said described the first months of the pandemic:

It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair …

His examples of the “worst of times” in that speech were, of course, numerous – including the pandemic itself, widespread economic insecurity, and systemic racism.  He noted, however, that there was an undercurrent of the “best of times” in that the pandemic presented an opportunity for the court system – and, indeed, for all of us – to begin to “transform ourselves in ways that we never really have had to do before.”  It was a time, “in which not only do we need people’s commitment, but also we need people’s imagination, to find new ways to do things,” collectively and collaboratively.  The Chief further noted that, even though the times were challenging, “we will emerge from this stronger.”  I must admit that it will be much harder to emerge from this stronger without his indispensable leadership.  I also know that, more than anything else, he would insist that we all continue to do our part to provide greater access to justice for all because there is still so much unfinished work.

I’ll close this reflection with a nod to his mother: “that Ralph Gants was a brilliant jurist; a national voice for access to justice; an indispensable leader of the court system; a beloved figure to so many yet also a great friend to those close to him; but, most of all, a regular guy.”

Susan M. Finegan is a litigation partner and Chair of the Pro Bono Committee at Mintz.  As the firm’s pro bono partner, she serves as lead counsel on numerous high profile pro bono litigation matters and oversees the 300+ pro bono matters throughout the firm.  Sue is active on many boards and commissions, including as a member and current co-chair of the Massachusetts Access to Justice Commission.


Owning The Space: A Candid Conversation with Supreme Judicial Court Associate Justice Kimberly S. Budd

by Sophia Hall and Justice Kimberly S. Budd

Voice of Judiciary
*This interview is a companion piece to “Walk in My Shoes: A Day in the Life of a Black Woman Attorney” by Danielle Johnson.

 

I was fortunate to recently talk with Justice Kimberly S. Budd about her career path and her experiences as a woman of color in the legal profession.

SH: What drew you to the law?

KB: I was lucky in that my Dad was a lawyer so he exposed me to the law. I have to admit, though, that when I was a kid, I did not really have an understanding of what a lawyer did. I do remember going in to work with him on the weekends, and helping him by pulling files. That’s what I grew up in. When I graduated from college, I went on to law school because I didn’t know what else to do (I majored in English). In hindsight, I wish I had taken a year to work between college and law school. I felt really young and inexperienced in law school.

SH: Has your identity as a woman of color affected your experience as a judge?

KB: I think it is fair to say that being a woman of color affects every part of my life, including being a judge.  The piece written by Danielle Johnson about her experiences in Housing Court brought back similar memories of my experience as a young litigator.  I have been mistaken for a defendant’s girlfriend by a court officer, and have been underestimated by countless numbers of opposing counsel over the years.

As a judge in Superior Court, it was clear that attorneys, litigants and jurors were not expecting to see a Black woman judge when they came into the courtroom.  I remember one particular afternoon I was sitting in a civil motion session in Middlesex County and working with a Black woman courtroom clerk and a Black woman court officer.  I think those who had business in the “D” session that afternoon were surprised to see our team!

When I handled criminal cases, many of the defendants were Black.  I like to believe that it made a difference for them to see someone who looked like them on the bench,  especially if everyone else in the courtroom was White.

SH: What was your experience with Judicial Evaluations?

KB: State court trial judges are evaluated periodically by practitioners who are surveyed anonymously.  The evaluations have both objective and subjective components, resulting in a numerical rating, and written comments. In 2014 a review of the judicial evaluations showed that judges who were of color and women judges consistently received lower ratings than White male judges.  Attempts were made to figure out how to account for bias, implicit or otherwise.  We haven’t come up with a solution, and I’m not sure that there is one.  The evaluations reflect the biases that exist in our society.

I have to admit that whenever I received my evaluation results, it was difficult to look at the comments.  Many were good, but it was the negative ones that consumed my attention.  After my first evaluation I stopped looking at the written comments altogether.

SH: You are the third African American ever appointed to the SJC, correct?

KB: Yes, and the second Black woman. Chief Justice Rodrick Ireland was the first African American appointed to the court in 1997 (the first in the Court’s over 304 year history).  He subsequently became the Chief Justice in 2010.  He was an excellent chief—and a great leader; everyone thought he did an amazing job. He was cognizant of the fact that his performance likely would affect the way judges of color who came after him would be perceived.. When Chief Justice Ireland retired, Justice Geraldine Hines replaced him and was the first African American woman.

SH: Can you describe your relationship with Justice Hines?

KB: I have been fortunate to know Gerri for a long time.  She started in the Superior Court, back in 2001.  I remember attending her swearing in ceremony when she first became a judge and being so excited for her and for the Commonwealth.  Little did I know that eight years later I would be her colleague on the Superior Court.  She was my mentor there, and again when I joined the SJC.  It makes such a difference when you have someone in your corner showing you how to do the job, answering your questions and rooting for you to succeed. Her presence on the SJC when I arrived was huge. And her absence is still felt (she retired in 2017).  She is only a phone call away though!

SH: The future of the SJC. Do you see more diversity coming?

KB: I sure hope so.

I would hate to think that anyone would use my presence on the Court to support an idea I am one of just a handful of people of color who are qualified to be a Justice of the Supreme Judicial Court.  That certainly is not the case.  I also cringe when I think there are some who might believe that I am here only because they needed a Black person to fill a slot. Even though diversity and inclusion are and should be priorities for the Commonwealth’s judiciary system and in many workplaces, I believe that I hold my own on the SJC. I am not just taking up space.  And like Danielle, I work every day to prove it.

 

Kimberly S. Budd is an Associate Justice for the Massachusetts Supreme Judicial Court (“SJC”), where she has served for nearly four years, and a former Justice of the Massachusetts Superior Court. She was appointed to the Superior Court by Governor Devall Patrick in 2009. Justice Budd was a litigation associate at Mintz Levin, an Assistant United States Attorney in the United Stated Attorney’s Office for the District of Massachusetts, and a University Attorney for Harvard University in the General Counsel’s Office. She also worked at Harvard Business School as the Director of Community Values. Justice Budd earned her bachelor’s degree in English from Georgetown University and her law degree from Harvard Law School.


Can Law Enforcement Officers Commit Any Crime While Off-Duty and Retain Their Pension?

by Michael Sacco

Case Focus

In a unanimous decision in two companion cases, Essex Regional Retirement Board v. Swallow and State Board of Retirement v. O’Hare, 481 Mass. 241 (2019) (Swallow/O’Hare), the Supreme Judicial Court (SJC) has determined that a law enforcement officer will not be required to forfeit his pension after a criminal conviction unless there is a direct link — either factual or legal — between the officer’s off-duty conduct and his position. This is the same standard to which other public employees in Massachusetts are held. This decision startled many in the public pension community. Only the legislature may change the standard to which law enforcement officers are held, by expanding the pension forfeiture statute’s narrow scope.

A Brief History of the Public Pension Forfeiture Law

Pension forfeiture provisions have existed in the retirement statute since the retirement law was codified in Chapter 32 of the Massachusetts General Lawsin 1945. The statute states that if a public employee is convicted of certain enumerated statutory offenses or misappropriation of the employer’s funds or property, the employee forfeits any right to a pension and receives a return of any contributions made to their annuity savings account. In 1986 however, the SJC held in Collatos v. Boston Retirement Board396 Mass. 684 (1986), that the legislature intended G. L. c. 32, § 15 (3A) to require forfeiture of a public employee’s pension only if the employee was convicted of two state crimes, G. L. c. 268A, § 2 (corrupt gifts, offers or promises to influence official acts, corruption of witnesses) and G. L. c. 265, § 25 (attempted extortion), and thus the  public employee’s guilty plea to violating 18 U.S.C. Section 1951 (extortion) would not require pension forfeiture. The SJC construed the statute narrowly because of its penal character.

Shortly after the Collatos decision, the legislature amended the statute by inserting G. L. c. 32, § 15 (4), which provided an intermediate level of pension forfeiture if the criminal conviction was a “violation of the laws applicable to his office or position.” While Section 15 (3A) required a complete forfeiture of pension rights, Section 15 (4) provided that a pension forfeiture would entitle the public employee to a return of his accumulated total deductions (funds withheld from the employee’s weekly check and paid to the retirement system), less any interest accrued thereon.

The first SJC decision interpreting Section 15 (4) was Gaffney v. Contributory Retirement Appeal Board, 423 Mass. 1 (1996). In Gaffney, the SJC held that a pension forfeiture was warranted when the superintendent of the Shrewsbury water and sewer department was convicted of larceny by common scheme for stealing the Town’s money and property. Id. The SJC acknowledged that the legislature did not intend that a pension forfeiture should follow any and all criminal convictions. Id. at 5. Rather, “the substantive touchstone intended by the General Court is criminal activity connected with the office or position. . . . Looking to the facts of each case for a direct link between the criminal offense and the member’s office or position best effectuates the legislative intent of § 15 (4).” Id. In Gaffney, the direct factual link between his employment and his criminal conviction was clear, and thus pension forfeiture was warranted.

Criminal Activity Not Limited to On-Duty Conduct

In Maher v. Justices of the Quincy Division of the District Court Department, 67 Mass. App. Ct. 612 (2006), the Appeals Court determined that a public employee’s off-duty criminal conduct can result in pension forfeiture even if the criminal conviction did not involve a violation of a statute that specifically pertains to public employees or, unlike Gaffney, did not involve misappropriating the employer’s funds or property. In Maher, the plaintiff was the chief plumbing and gas inspector for the City of Quincy. Id. at 613. He and another city employee broke into and entered the personnel office at city hall. There, the plaintiff reviewed his personnel file and stole a document or documents from the file. A few weeks later, a new mayor took office. The plaintiff took superannuation retirement and subsequently pleaded guilty breaking and entering in the daytime with intent to commit a felony, wanton destruction of property, and stealing personnel records and various documents. Id. His pension was forfeited, and the Appeals Court upheld the pension forfeiture, specifically referencing Gaffney and stating that the statutory requirement that the criminal activity be connected with the office or position “does not mean that the crime itself must reference public employment or the employee’s particular position or responsibilities.” Id. at 616.

The Durkin and Finneran Decisions

Similarly in Durkin v. Boston Retirement Board, 83 Mass. App. Ct. 116 (2013), a law enforcement officer’s off-duty conduct resulted in forfeiture of his pension. Paul Durkin was a Boston Police Officer who became inebriated off-duty and used his service revolver to shoot a fellow off-duty police officer who was giving him a ride home. Id. at 117. Durkin pleaded guilty to assault and battery by means of a dangerous weapon, and the Boston Retirement Board forfeited his rights to a pension. Id. The Appeals Court upheld the retirement board’s decision, noting that “Durkin engaged in the very type of criminal behavior he was required by law to prevent. This violation was directly related to his position as a police officer as it demonstrated a violation of the public’s trust as well as a repudiation of his official duties. Clearly, at the heart of a police officer’s role is the unwavering obligation to protect life, which Durkin himself recognized at his hearing. His extreme actions violated the integrity of the system which he was sworn to uphold.” Id. at 119.

In State Board of Retirement v. Finneran, 476 Mass. 714 (2017), the SJC discussed the pension forfeiture statute’s twenty-year evolution into two recognized types of “direct links” between a public employee’s position and the crime committed: factual links and legal links. In cases involving factual links, a public employee’s pension is subject to forfeiture under Section 15 (4) only when there is a direct factual connection between the public employee’s crime and position. Id. at 720-21. Surprisingly, the court cited the Durkin case as an example of a direct factual link, noting that that crime had been committed with the police officer’s service revolver. Id. at 721. In cases involving direct legal links, forfeiture is mandated under Section 15 (4) when a public employee commits a crime directly implicating a statute that applies to the employee’s position. Id.

Swallow and O’Hare in the Appeals Court

The Durkin and Finneran decisions implied that the plaintiff in Durkin may have kept his pension had he merely committed the offense with his personal weapon. In Swallow, a police officer who was on administrative leave was with his wife at their home. Swallow/O’Hare, 481 Mass. at 243. Swallow was drinking heavily and, after an argument, he grabbed his wife by the shirt, yelled at her, and waved his personal handgun in her face. Id. As she left the home and walked to a neighbor’s driveway, she heard a single gunshot. Id. Swallow was subsequently arrested and ultimately pleaded guilty to assault and battery, discharge of a firearm within 500 feet of a building, assault by means of a dangerous weapon, multiple counts of improper storage of a firearm, and intimidation of a witness. Id. The retirement board forfeited Swallow’s pension, largely relying on Durkin. Id. Although the District and Superior Courts reversed the retirement board’s decision, the Appeals Court reinstated it, noting that Swallow’s “use of a gun to threaten another’s life violated the public’s trust and repudiated his official duties.” Id. at 244. See Essex Reg’l Ret. Bd. v. Justices of the Salem Div. of the Dist. Ct. Dep’t91 Mass. App. Ct. 755, 760 (2017).

Finally, in O’Hare, a state trooper communicated online with, and eventually arranged to meet with, an individual whom he believed to be a fourteen-year-old boy but was actually an undercover agent with the Federal Bureau of Investigation (FBI). Swallow/O’Hare, 481 Mass. at 244. The FBI arrested O’Hare and he pleaded guilty to a charge of using the Internet to attempt to coerce and entice a child under the age of eighteen years to engage in unlawful sexual activity. Id. The retirement board forfeited O’Hare’s pension rights, finding that his conviction went “directly to the heart” of his responsibilities and obligations as a state police trooper. Id. The District and Superior Courts reversed the retirement board’s decision. Id. at 244-45. Like the posture of Swallow, the Appeals Court reversed, holding that forfeiture was required because O’Hare’s conduct violated the fundamental tenets of his role as a state police trooper, because protecting the vulnerable, including children, is at the heart of a police officer’s role, and this repudiation of his official duties violated the public’s trust and the integrity of the Massachusetts State Police. Id. at 245. See State Bd. of Ret. v. O’Hare92 Mass. App. Ct. 555, 559 (2017).

SJC Changes Course

As perhaps prophetically foretold in the reference to Durkin in the Finneran case, the SJC reversed both Swallow and O’Hare along similar lines. With respect to Swallow, the SJC held the retirement board should not have relied on Durkin for the proposition that forfeiture is mandatory after “a police officer violates the public trust and shirks his or her official duties.” Although Durkin discussed the fundamental nature of the police officer’s position and noted that the officer had violated the public trust by “engag[ing] in the very type of criminal behavior he was required by law to prevent,” forfeiture was ultimately grounded on the factual connections between the officer’s position and the criminal activity. Swallow/O’Hare, 481 Mass. at 251. In O’Hare, the SJC rejected the retirement board’s argument that there is an exception to the proposition that pension forfeiture should not follow “as a consequence of any and all criminal convictions” for law enforcement officials because of their “special position” in our society. In rejecting this position, the SJC stated emphatically, “[t]his is precisely the kind of unfettered breadth that we have consistently avoided.” Id. Accordingly, in both cases the SJC acknowledged the repugnant nature of the criminal offenses, but nevertheless reinstated the pensions. Id. at 254. In O’Hare, the SJC also summarily rejected the argument that there was a “legal link” between the criminal conduct and a violation of the “laws” applicable to State police. Id. at 252-53. The retirement board, relying on State Board of Retirement v. Bulger, 446 Mass. 169 (2006), in which the SJC found that perjury and obstruction of justice convictions violated the Code of Professional Responsibility for Clerks of the Courts and thus were a violation of the laws applicable to the office or position, had posited that the “laws” applicable to State police include the rules and regulations issued by the colonel of the State police pursuant to G. L. c. 22C §§ 3 and 10. O’Hare at 252. It argued that they function as a “code of conduct” and require that State troopers “avoid conduct that brings the State police into disrepute and obey all laws of the United States and the local jurisdiction.” Id. at 252. Unpersuaded, the SJC found that if the legislature wanted to include rules and regulations that do not have the force of law, it would have said so, as it had in the preceding section of the statute. Id. at 252-53. The SJC distinguished the circumstances in Swallow and O’Hare from the holding in Bulger, where a clerk-magistrate committed perjury in violation of the Code of Professional Responsibility for Clerks of Court — because the Code has “the force of law.” Id. at 253.

Many were surprised by the SJC’s refusal to hold police officers to the higher standard under pension forfeiture laws that had previously been applied to discharge for off-duty conduct, such as in Police Commissioner of Boston v. Civil Service Commission, 39 Mass. App. Ct. 594, 601 (1996) (officer lost his firearm while intoxicated and verbally abused other officers); McIsaac v. Civil Serv. Comm’n38 Mass. App. Ct. 473, 475-76 (1995) (officer negligently handled firearm while intoxicated and verbally abused other officers); Comm’rs of Civil Serv. v. Mun. Ct. of the Brighton Dist., 369 Mass. 166, 170-71 (1975), and Patuto v. Comm’rs of Civ. Ser., 429 U.S. 845 (1976) (upholding discharge of off-duty police officer who accompanied others while they uttered forged money orders). Perhaps less surprising is the SJC’s rejection of the argument that pension forfeiture can be triggered under Section 15 (4) by a violation of a rule or regulation or code of conduct which does not have the force of law. Implicit in its ruling, however, is that had the statute so provided, pension forfeiture would have surely resulted in O’Hare.

Looking Forward

Unless the legislature further amends Section 15 (4), police officers will be treated no differently than other public employees in assessing pension forfeiture for criminal activity. Interestingly, legislation has been filed to further restrict the scope of Section 15 (4). If enacted, it would limit a complete pension forfeiture to cases in which the prosecutor included such a penalty in the sentencing recommendation, and in the absence of such a recommendation, the local retirement board could implement a partial forfeiture based on its discretion and the facts and circumstances of the particular criminal conviction. In my view, the Legislature should follow the Court’s lead in extending the pension forfeiture’s statute’s reach to off-duty law enforcement officers’ conduct as it has in upholding employment termination proceedings. As the Appeals Court noted in Police Commissioner of Boston v. Civil Service Commission, 22 Mass. App. Ct. 364, 371 (1986): “Police officers must comport themselves in accordance with the laws that they are sworn to enforce and behave in a manner that brings honor and respect for rather than public distrust of law enforcement personnel. They are required to do more than refrain from indictable conduct. Police officers are not drafted into public service; rather, they compete for their positions. In accepting employment by the public, they implicitly agree that they will not engage in conduct which calls into question their ability and fitness to perform their official responsibilities.” See also Falmouth v. Civ. Serv. Comm’n, 61 Mass. App. Ct. 796, 801-802 (2004) (“[p]olice officers must … behave in a manner that brings honor and respect for rather than public distrust of law enforcement personnel.  This applies to off-duty as well as on-duty officers.”)  While I recognize the financial impact a pension forfeiture will often have on the pensioner’s family, that should be a consideration before the law enforcement officer commits a crime that puts their family at perilous financial risk.

 

Attorney Sacco founded the Law Offices of Michael Sacco, P.C. on March 20, 2006, having practiced in various Boston law firms in the preceding 12 years. Since entering private practice in 1994, Attorney Sacco’s practice has focused exclusively in the representation of public pension systems in Massachusetts.


The 2016 Massachusetts Code of Judicial Conduct: Judicial Engagement with the Organized Bar

cohen_cynthiaberenson_barbaraby Hon. Cynthia Cohen and Barbara F. Berenson

Heads Up

In October 2015, the Justices of the Supreme Judicial Court (“SJC”) adopted a new Massachusetts Code of Judicial Conduct, effective January 1, 2016 (“new Code” or “2016 Code”).  The new Code is the culmination of three years of study by a committee of judges, lawyers, and academics, who were appointed by the SJC to study the previous, 2003 Massachusetts Code of Judicial Conduct (“predecessor Code” or “2003 Code”) and to recommend changes in light of the American Bar Association’s 2007 Model Code (“2007 ABA Model Code”).  The committee was fortunate to have among its members three prominent bar leaders:  Attorney Lisa Goodheart and Professor Renee Landers, both past Presidents of the BBA, and Attorney Michael Greco, a past President of both the MBA and the ABA.  Bar associations and individual members of the bar also provided invaluable feedback and suggestions during the public comment period.

The 2016 Code differs substantially from the predecessor Code in both form and substance.  It closely resembles the 2007 ABA Model Code in structure and overall philosophy, but it also contains a significant number of nonconforming provisions, often because the departure is more suitable for a state that does not elect its judges.  A summary of key new and revised provisions is available for review on the website of the Massachusetts Judicial Branch, as is the committee’s Report.

An important difference between the 2016 Code and the predecessor Code pertains to judicial participation in outside activities.  To a large extent, the 2003 Code shielded judges from interactions with the public, in the belief that judicial isolation would best ensure the independence, integrity, and impartiality of the judiciary.  In contrast, the 2016 Code recognizes the value and importance of judicial outreach and affirmatively encourages judges to participate in community activities, so long as they are consistent with a judge’s fundamental obligation to act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and that avoids impropriety and the appearance of impropriety.

This new philosophy is particularly evident in rules bearing on judicial engagement with the organized bar.  Early on, in Canon 1, the new Code makes clear that judges are affirmatively encouraged to “participate in activities that promote ethical conduct among judges and lawyers, support professionalism within the judiciary and the legal profession, and promote access to justice for all.”  Rule 1.2, Comment [4]. Later, in Canon 3, Rules 3.1 and 3.7 offer specific guidance concerning a judge’s participation in extrajudicial activities, including those of bar associations.  Rule 3.1 permits a judge to “engage in extrajudicial activities, except as prohibited by law or this Code,” albeit with some general cautions.  For example, the activities must not interfere with the proper performance of the judge’s judicial duties or lead to recurrent disqualification.  That said, as long as the concerns of Rule 3.1 are satisfied, Rule 3.7 encourages judges to participate in activities that “foster collegiality among the bar and communication and cooperation between the judiciary and the bar.”

This encouragement specifically extends to speaking about the administration of justice at bar association events.  Rule 3.7, Comment 1[B].  In a departure from the predecessor Code, a judge ordinarily may do so even when the event is held in space provided by a law firm or is financially supported by one or more for-profit entities, such as law firms or legal vendors, that do substantial business in the court on which the judge sits.  Ibid.  The rationale for this liberalization is that some bar associations, particularly affinity bar associations with smaller memberships, may not be in a financial position to hold events without the support of private sponsors or the use of law-firm space.  The Code cautions, however, that the judge must avoid giving the impression that the sponsors of an event are in a special position to influence the judge.  Rule 3.7, Comment [1A].

The 2016 Code also relaxes what had been an outright  prohibition on a judge serving as a featured speaker or receiving an award or other comparable recognition at a fundraising event of a law-related organization.  A judge is now permitted to speak or be honored if the event is sponsored by a law-related organization that promotes the general interests of the judicial branch of government or the legal profession, including enhancing the diversity and professionalism of the bar.  Rule 3.7(A)(6A).  As explained in Comment [4], general interest organizations include, for example, state bar associations, city or county bar associations, affinity bar associations, and bar associations that specialize in particular practice areas but whose members take positions on both sides of disputed issues.

The 2016 Code continues to prohibit a judge from serving as a featured speaker or receiving an award at other fundraising events, but more narrowly defines that term.  Under the new Code, a fundraising event is one where the organizers’ chief objectives include raising money to support the organization’s activities beyond the event itself; unless that definition is met, an event is not considered to be a fundraising event, even if the revenues from the event ultimately exceed the costs.  Rule 3.7, Comment [3].

The 2016 Code also modifies the rules governing a judge’s acceptance of invitations to attend without charge a luncheon, dinner, reception, award ceremony, or similar event held by a law-related organization in Massachusetts.  A judge may now accept such invitations without having to obtain a written determination from the Chief Justice of the court on which the judge sits that acceptance will serve a legitimate public purpose; instead, the Code presumes that a judge’s attendance at such events will serve a public purpose.  The intent of this provision is to make it less burdensome for judges and their Chief Justices to facilitate judicial attendance at local bar events.  In other instances, judges remain required to obtain determinations from their Chiefs before accepting complimentary invitations.  See Rule 3.14.

At the same time that the SJC adopted the new Code, it also revised SJC Rule 3:11, which governs the Committee on Judicial Ethics.  Among other things, the revised rule provides that the Justices may from time to time issue an Ethics Advisory to elucidate the meaning or application of a provision of the Code and to expound upon provisions that are of broad interest and application. SJC Rule 3:11(4).  Groups of judges and lawyers, including bar associations, may request an Ethics Advisory, but the court may decline to render one for any reasons it deems sufficient.  Ibid.  Although the Committee on Judicial Ethics will continue to render Informal Opinions and Letter Opinions (formerly known as Advisory Opinions) only to judges, by offering bar associations the opportunity to seek clarification of Code provisions, the new rule recognizes that issues of judicial ethics are of great interest and importance to the bar as well as the judiciary.

Hon. Cynthia J. Cohen is an Associate Justice of the Appeals Court.  She chaired the committee that drafted and recommended the adoption of the 2016 Massachusetts Code of Judicial Conduct, and currently chairs the Committee on Judicial Ethics.

Barbara F. Berenson is a senior attorney at the Supreme Judicial Court. She staffed the committee that drafted and recommended the adoption of the 2016 Massachusetts Code of Judicial Conduct, and is currently staff counsel to the Committee on Judicial Ethics.

 


The New “Documents Only” Subpoena Under Recently Amended Mass. R. Civ. P. 45

Maycotte_Carlosby Carlos A. Maycotte

Heads Up

Earlier this year, the Supreme Judicial Court amended Rule 45 of the Massachusetts Rules of Civil Procedure, which concerns subpoenas. The main purpose of the amendments is to give Massachusetts practitioners the ability to issue “documents only” subpoenas to non-parties. Now, attorneys need no longer notice depositions of non-parties when the only goal is to obtain production of documents.

The amendments were effective as of April 1, 2015. Before that date, attorneys in Massachusetts followed a convoluted procedure: a notice of deposition and a subpoena duces tecum were served on a non-party, commanding that non-party to appear at a Keeper of the Records deposition with the specified documents. The non-party would instead send the documents outlined in the subpoena duces tecum (with a sworn certification) to the issuing attorney, who would then waive the non-party’s appearance at the deposition. The issuing attorney would then have the documents and the non-party would never appear at a deposition.

To streamline the process, the Supreme Judicial Court amended Mass. R. Civ. P. 45 to track the language of and the procedure described in the Federal Rules of Civil Procedure. The amendment eliminates the superfluous steps described in the previous paragraph by creating a new class of subpoenas. Now, the attorney may serve a “documents only” subpoena, and the person receiving it “need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial.” The subpoenaed party can simply send the documents to the issuing attorney.

Where the previous incarnation of Mass. R. Civ. P. 45(a) provided generally that a subpoena shall “command each person to whom it is directed to attend and give testimony at a time and place therein specified,” the amended rule provides greater detail, stating that a subpoena shall “command each person to whom it is directed to do the following at a specified time and place: to attend and give testimony; to produce designated documents, electronically stored information, or tangible things in that person’s possession, custody, or control; or to permit inspection of premises.” By listing the several purposes for which a subpoena may be issued, the amendment has created new categories of subpoenas that can be targeted for a more economical civil practice.

The new procedure for issuing “documents only” subpoenas in the amended Mass. R. Civ. P. 45(b) further provides that commands to produce documents or electronically stored information may be set out in subpoenas separate from those that command attendance, and that the subpoena “may specify the form or forms in which electronically stored information is produced.” Practitioners will be able to use this provision to require that the document production be made in a specified format, so that they are able to compile and review documents more effectively.

The amended rule also provides certain protections for non-parties. The reporter’s notes recognize that the person receiving a subpoena may have “no stake in the case” and may not have the assistance of counsel. Thus, a party issuing a subpoena “must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” A non-party on whom a subpoena is issued has 10 days from the date of service to object to the subpoena and must serve the objection on all parties. After an objection has been made, the burden shifts to the issuing party, who must then justify the need for the documents via a motion to compel. In practice, Massachusetts courts have generally been protective of non-parties in the discovery context, and these protections will likely be reinforced by the amended rule.

At the same time, the amended Mass R. Civ. P. 45(c) specifies that the requirement to tender fees to a person served with a subpoena does not apply to cases where the person is not commanded to appear – meaning that while a non-party may have an easier time complying with a subpoena, he or she may not receive a fee, however nominal, for doing so.

Although the amendments to Mass R. Civ. P. 45 align the Massachusetts rule more closely to the federal rule, important differences remain. Mass R. Civ. P. 45(d)(1) provides that prior to the service of a “documents only” subpoena on a third person, a copy of the subpoena must be served on all parties to the case. This differs from the federal rule, which requires that both notice and a copy of the subpoena be served on all parties to the case. The Massachusetts rule eliminates an unnecessary step, allowing a copy of the subpoena to operate as adequate notice that a subpoena has been served. Unlike the federal rule, this provision in the Massachusetts rule also tasks the issuing party with serving copies of any objection to the subpoena on all parties. In addition, the issuing party must serve all other parties with either notice that a production was made or an actual copy of the documents produced.

These amendments should help make civil procedure more efficient. By eliminating the need to notice a deposition and issue a subpoena to non-parties from whom only documents are needed, less paperwork will be required from issuing parties. The streamlined procedure will save practitioners time, and clients, money. The amendment to Mass R. Civ. P. 45 should be well received by Massachusetts attorneys.

 

Carlos A. Maycotte is an associate at Sally & Fitch LLP, where he works primarily in the areas of family law, international arbitration and litigation, and general civil litigation.


A Fond Farewell from Chief Justice Ireland

Ireland_Roderickby Roderick L. Ireland

Voice of the Judiciary

When I retired at the end of July of 2014, my judicial service had spanned three court departments and thirty-seven years – thirteen years at the Boston Juvenile Court, seven years at the Appeals Court, and seventeen years at the Supreme Judicial Court, the last four as Chief Justice.  A number of people asked me to reflect on my experiences and share what I learned during that time.  As I thought about it, I decided that I wanted to give voice to my time as Chief Justice, since that represented such a unique experience.

It has been quite a journey.  In my Boston Juvenile Court days, sitting in what was then called the “Old Courthouse,” my courtroom was so cold in the winter that I wore an overcoat and scarf under my robe, and the clerk had to wear gloves to punch the keys of her typewriter.  I remember looking up from the ground floor of that building to the upper floors of the great hall, never thinking that one day I would be on those upper floors, in a beautifully rehabbed  “John Adams Courthouse,” looking down to the space where I started out.  For me, as the first person of color to serve on the oldest appellate court in the western hemisphere, to be appointed its Chief Justice was not only a great honor, but also a heavy responsibility.

It was one thing to serve as an associate justice, but quite another to serve as Chief Justice, and I did not go into it lightly.  In fact, when Governor Deval Patrick first wanted to nominate me, I turned the offer down.  I knew what the stakes would be for me personally, as a person of color.

Fortunately, Mo Cowan, the Governor’s Chief Legal Counsel and later his Chief of Staff, was a persistent advocate, and after many conversations over several weeks, I was persuaded to reconsider and to accept the nomination.  As he pointed out to me, it was an historic opportunity, and there was no telling when another opportunity for a person of color to be Chief Justice would occur.

In spite of my reservations, I took the plunge.  I have to say that I feared that any mistakes I made would not only reflect on me, but also would make it more difficult for other people of color to follow me.  What would be the point of being the first, if there would never be a second?   So, for me, doing a good job was critical.  That was my goal every day.  Looking back, I am pleased with how things worked out and proud of what we accomplished.  But there were challenges.

When I started as Chief Justice, the Judiciary was in the midst of a hiring freeze that had gone on for more than two years.  Morale was at an all-time low because employees were being asked to do their own work and then take on extra work as a result of vacancies that could not be filled.

On top of that, the Justices had recently received a report from Independent Counsel Paul Ware about hiring and promotion in the Probation Department.   The report concluded that the Commissioner of Probation had engaged in corrupt hiring that favored politically connected candidates, and indictments followed.  Commissioner John O’Brien and Deputy Commissioner Elizabeth Tavares were eventually convicted of mail fraud, racketeering, and conspiracy to engage in racketeering; and Deputy Commissioner William Burke was convicted of conspiracy to engage in racketeering.

At the time, the Governor proposed that the Probation Department be moved from the Judicial to the Executive Branch. On the day I was nominated to be Chief Justice, even before I was sworn in, I was asked by the media about my position on moving Probation to the Executive Branch.  I had to respectfully disagree with the Governor before my first day as Chief Justice.  As it turned out, the Governor did not give up on this idea, and made the same proposal the following year, which meant that I had to publicly disagree with him a second time.  Currently, the Probation Department remains under the authority of the Judicial Branch.

When I began as Chief Justice, the judiciary’s relationship with the Legislature was “cool,” to say the least, and our budget was significantly below what we needed just to stay afloat.  We faced the likelihood of reducing court sessions, laying off employees, or a combination of those difficult options.  To state the obvious, those were challenging times.

In my first Annual Address, which I gave in October of 2011, I indicated that I had three main objectives as head of the third branch of government: first, to build bridges with the courts’ constituents, including the Legislature; second, to make the court system more user-friendly and responsive to the public; and third, to educate the public, particularly our youth, about how the legal system operates.

From my first day as Chief, reaching out to the Legislature was a major priority.  We organized two first-of-their-kind programs – an orientation program for new members of the Legislature, and a similar one for legislative staff.  I visited regularly with Legislative Leadership, as well as the rank and file members of the House and Senate, sometimes spending several hours a week at the State House.  We worked with the Speaker on the legislation creating the new position of the Court Administrator to bring professional management expertise to the Judicial Branch.  The Justices also adopted the recommendations for transparency in hiring and promotion practices in the “Harshbarger” action plan.   And I met regularly with the Governor and his staff to share information, exchange ideas, and to advocate for proper funding for the courts.

Through our efforts we were able to secure an adequate budget to fund the work of the court system, and we have been able to fill some of the critical positions.  Our efforts also resulted in a pay raise for judges and clerks – the first in eight years.  Based on my regular visits to courthouses across the Commonwealth to thank the staff for their work, I can see that morale of court staff has noticeably improved.

We also built bridges with the business community, meeting with the CEOs of the biggest businesses to discuss the court system, emphasizing the importance of the Business Litigation Session of the Superior Court.  We described how it was in their best interests that courts have proper resources in order to ensure speedy and fair resolutions of their legal issues.  We pointed out that it was also in their employees’ best interests to have a legal system that would provide speedy and fair resolution to their personal legal problems, because the sooner they were resolved, the more “present” the employees would be at work.

We enlisted support from the bar associations, to encourage their members to advocate for adequate funding for the judiciary and to share information on court initiatives.  The Justices partner yearly with the Massachusetts Bar Association, the Boston Bar Association, and others, to “Walk to the Hill,” as part of Court Advocacy Day.  Our collaboration with the Bar means a great deal to the members of the Judiciary.

We endeavored to make the courts more user-friendly as well as more transparent to the public.  Recognizing that every day more than 42,000 people come to our courthouses (based on the FY2010 Annual Report on the Commonwealth of the Massachusetts Court System), and more and more self-represented litigants, we are attempting to demystify the legal process.   Help desks or information kiosks were initiated in various courts to assist the public as they enter court houses.  We also opened several courts for extended hours so that, in some cases, litigants could resolve their cases without having to miss a day of work.

Our Access to Justice Initiatives provide services and support to litigants without access to legal representation in civil cases, some of which concern the most basic necessities of life.  And through specialty courts we are able to deal with substance abuse and drug and alcohol addiction, mental health, and veterans’ issues.

Another bridge we began to build was with our law schools.  This year we held the first “Summit” with the deans of Massachusetts law schools.  Our roundtable discussion covered many issues involving legal education in Massachusetts and ways to assist graduates to be more prepared for the “real world” of lawyering upon graduation.

I hope to continue to play a part in the lives of students, especially those at risk, even after I retire.  This summer I again led the Judicial Youth Corps (JYC), the SJC’s program for high school students, as I have for the past twenty-four years.  With the wonderful support of the Massachusetts Bar Association, we expanded the JYC to both Worcester (in 2009) and Springfield (in 2014).  At this point we have more than 700 alums of the JYC.  Some are now lawyers, teachers, business professionals, and we even have one judge.

One aspect of the JYC that I am especially proud of is the role that court employees play each year.  Each of our students has a volunteer supervisor who works with the student the entire summer.  They do not get a single extra penny for doing this, and they do it for just one reason – to help a kid.  And many of the employees have volunteered each and every year for the past twenty-four years.  Paul Liacos, a former Chief Justice of the SJC, was the visionary who founded the program back in 1990.  I know he would be proud.

As I neared retirement in June of 2014, I was appointed Distinguished Professor of Criminology and Criminal Justice in the College of Social Sciences and Humanities at Northeastern University, where I have been an adjunct professor for the past thirty-six years.  I joined the faculty full-time at the end of August.  Among the courses I will be teaching is one that I am developing called, “The Third Branch of Government.”  It will examine the interplay of the judiciary with the legislative and executive branches, as well as with external entities like business and the media.

One part of the course will be to look at the “theory” of how government is supposed to work.  But another part will focus on the “reality” of government, and will look at how things actually work in the real world.  And in that part of the course I hope to take my students on the road to see how government actually functions, from meeting with key players in all three branches, to observing the various processes of the branches unfold.

I hope to show my students what my experiences as Chief Justice have helped me to understand, which is that even though the three branches of government are “separate, independent and co-equal,” they are also all interdependent and connected with each other.  For the third branch of government to perform its function properly, it must have the support and assistance of the other two branches of government.  And without the support of the other two branches, the third branch will almost certainly be unable to provide the services that the public needs and expects in a timely, efficient, and fair way.

And with that, I will close.  As I do, it bears repeating that my serving as Chief Justice these past four years has been the highest honor and privilege.  But I did not do it alone.  What made leading this Branch possible for me, from my very first day as Chief, was the tremendous support I received from my colleagues and staff.  I am grateful to everyone who has helped me along the way.  It has meant so much to me.  I extend my best wishes to all in future years.  All the best!!

 

Chief Justice Roderick L. Ireland serves as a Distinguished Professor of Criminology and Criminal Justice at Northeastern University. He served as Chief Justice of the Supreme Judicial Court of Massachusetts from 2010 to 2014.  He received his B.A., 1966, from Lincoln University, Pennsylvania; his J.D., 1969, from Columbia Law School; an L.L.M. degree, 1975, from Harvard Law School; and his Ph.D., 1998, Northeastern University.


Parole: Evidence of Rehabilitation and Means to Rehabilitate

Lyons_Crystal2by Crystal L. Lyons

Practice Tips

In Diatchenko v. District Attorney for the Suffolk District & Others, 466 Mass. 655 (2013), the Supreme Judicial Court invalidated the statutory provisions mandating life without the possibility of parole for juveniles convicted of first degree murder.  The Diatchenko Court adopted the U.S. Supreme Court’s decision in Miller v. Alabama, 132 S.Ct. 2455, 2460 (2012), which required consideration of a juvenile’s “lessened culpability” and “greater capacity for change.” As a result of Diatchenko, sixty-one Massachusetts inmates became eligible for parole and entitled to parole hearings where they will be afforded “a meaningful opportunity to obtain release,” Diatchenko, 466 Mass. at 674, before the completion of their criminal sentence.  This article provides guidance to practitioners appearing before the Parole Board for these and other life sentence hearings.

However laudable Diatchenko’s reform, it has collided with a countervailing pressure to tighten the standards for granting parole following the high-profile murder of a police officer committed by a parolee in 2010, and the subsequent public outcry which led to the resignation of five Parole Board members who had voted for his release. According to several studies, including by the Boston Bar Association and the Parole Board, once the data are corrected for high-profile offenses, recidivism rates are actually higher for persons who are released after serving a complete sentence than for those who are paroled.  Proponents of parole attribute this difference to the supervision, programs, and assistance parolees receive after release to facilitate reintegration into society.

Reconciliation of the two viewpoints lies in the application of one of the primary goals of sentencing: rehabilitation.  Commonwealth v. Goodwin, 414 Mass. 88 (1993).  Parole offers a “carrot and stick” approach to achieving rehabilitation.  The carrot, because parole can be granted at least in part based on an offender’s showing of rehabilitation, and the stick, because the Parole Board can place conditions on receiving parole, or rescind or revoke parole, based on failure to engage in programs, counseling, substance abuse treatment and a wide variety of other conditions.  M.G.L. c. 127, § 5; 120 C.M.R. § 300.07.  Importantly, offenders are not required to participate in treatment or educational opportunities offered during their incarceration, yet offenders often undertake such steps voluntarily with the goal of demonstrating rehabilitation and receiving parole.  Similarly, conditions of parole and the creation of a release plan cannot be mandated except for those offenders subject to parole.  Parole can thus be accurately described as both evidence of rehabilitation and a means of effecting the sentencing goal of rehabilitation.  By extension, the best advice to attorneys representing either parolees or the Commonwealth in life sentence parole hearings is to focus on presenting a cohesive narrative that focuses on rehabilitation.  The facts of the offense and an individual’s criminal history have already been established, but an attorney can situate those facts within a narrative arc of the offender’s development and future goals.

The Board must consider two factors in each parole decision: (1) the reasonable probability that the individual would not violate the law if released, and (2) the compatibility of release on parole with the welfare of society.  Parole may not be granted “merely as a reward for good institutional conduct.” M.G.L. c. 127, § 130; 120 C.M.R. § 300.04.  The Parole Board may consider a variety of evidence in its decision, including: prior criminal record; pending cases; the nature and circumstances of the offense; recommendations from parole staff; statements from victims or their family members; physical or psychological examinations; information the inmate provides, including letters of support and a parole release plan; information the District Attorney’s Office provides; and institutional behavior.  120 C.M.R. § 300.05

A typical hearing begins with an opening statement by the offender or his counsel, followed by questioning of the offender by each Board member.  The offender may present testimony from supporters, including family members, employers, or experts (such as mental health experts), each of whom may be questioned by the Board.  After the offender’s presentation, those opposing parole, including the victim or family members of the victim, may speak or present counter evidence.  The offender’s counsel may present closing arguments, and the Commonwealth may also present a closing argument or position statement.

The Board’s published Guidelines for Life Sentence Decisions should serve as the framework for constructing argument and applying the evidence listed above.  The Guidelines specify three questions to be addressed by the Board at each hearing:

1) Has the inmate’s period of incarceration been of sufficient length to adequately protect the public, punish him for his conduct, deter others, and allow for rehabilitation?

2) Is the inmate rehabilitated?

3) Are there reasons to conclude that the inmate will live outside prison as a sober, law-abiding, employed, productive person who is making positive contributions to his family and his community?

The key issues underlying each question are fully outlined in the Guidelines and fall into three main areas of inquiry: the offender’s past, his institutional behavior, and his action plan upon release.

Offender’s Past

In addition to understanding the facts and circumstances of the crime, the Board will ask if the individual has taken responsibility for and appreciates his role in the crime, including the impact it had on any victims.  Has the offender’s story has changed over time and is the offender only acknowledging his behavior for the purpose of gaining parole? In that regard, assess if post-trial litigation can fit into a narrative of eschewing responsibility, or instead protecting a valuable substantive or procedural right.  What is the criminal history beyond the offense of incarceration and does it reveal a pattern of violent behavior or crimes committed against particularly vulnerable victims (such as children or the elderly)?  Has the offender had past defaults, bail revocations, or other factors which may indicate difficulty complying with conditions of parole?

An offender’s personal circumstances are also important, but can be a double-edged sword: they can serve as mitigating or aggravating factors depending on how they have been addressed.  Does the offender recognize the role those circumstances may have played in the offense or how they may impact his life upon parole? Has he specifically tailored his rehabilitative efforts to areas of substance abuse, childhood trauma, or other relevant factors? Similarly, if the offender has struggled with mental health issues, have those issues led to previous commitments, and have they been adequately treated?

Institutional Behavior

The Board considers two main areas of institutional behavior: first, the offender’s disciplinary record; and, second, how he has used his time in educational or other institutional activities.  What is the total number of infractions received and what is the trend?  Did infractions involve violence or contraband?  Was the individual the instigator?  What was the reason for any transfers within the Department of Correction?  Did the offender use his time to enroll, regularly attend, and complete programs, or has he attended only sporadically or claimed he was unable to attend?  How has he shown personal reflection and dedication to self-improvement? Has he achieved educational or vocational goals?  Has he taken leadership positions or consistently worked during his incarceration?  Has he been committed to any religion, vocation, organization, or family during his incarceration that will continue following his release?  What efforts has he made to address the Board’s concerns since any previous hearing and denial?

Release Plan

Finally, the Board considers the offender’s plan for life after release: does the offender have an adequate support network, including a place to live and work, treatment for ongoing issues, and persons who are committed to his success?  Be ready to show that these issues have been well thought out and not hastily thrown together.  Has the defendant been pre-approved for housing or programs?  Does he have an employer willing to offer a job?  Are there family members or religious supporters aware of the transitional difficulties he will face and willing and able to shoulder the potential emotional and financial impact?  Any testimony should focus on these issues and evidence of rehabilitation.  Avoid discussion about personal hardship due to incarceration or any perceived harm to the offender because of the conviction.

There are steps counsel may take to try to assuage any Board concerns arising during the hearing.  With permission, supplement the record following the hearing.  This can be particularly useful to address questions regarding the parole release plan and provide conditional acceptance to programs, housing, or employment opportunities.  The Board may be inclined to grant parole with pre-conditions and transition periods rather than deny parole with recommended steps an inmate take before his next review hearing.  After listening carefully to the Board’s questions and testimony provided, use closing argument to address any trouble areas or discrepancies between what emerged at the hearing with the written materials provided to the Board.

Conclusion

Hearings mandated by Diatchenko began in May 2014 and have so far resulted in the parole of the first three juvenile offenders considered.  Notwithstanding these recent decisions, the seriousness of life sentence offenses and the Board’s stated goal of achieving fairness and consistency across similarly situated offenders suggests that parole will not be granted often on a first review, even where an offender has taken responsibility for his actions and demonstrated significant rehabilitation. The three juvenile offenders had served twenty, eighteen, and twenty-two years, respectively, where they are now eligible for parole after serving fifteen years.  The Board also required each of the paroled juvenile offenders to complete additional programs prior to release after one year in a lower security facility.

Overall, Parole Board statistics show that parole was granted to 21% of offenders serving life sentences (including for crimes other than first degree murder) who were over 18 years old on the date of offense, compared with 53% of those who were under 18 years old on the date of the offense.  This suggests that the Board is seriously weighing the role of youth in both the commission of the offense and rehabilitation, as required by the Supreme Judicial Court.

 

Crystal L. Lyons is an Assistant District Attorney in the Appeals & Training Bureau of the Middlesex District Attorney’s Office, and a member of the BBJ Board of Editors. She clerked for the Ninth Circuit Court of Appeals and graduated Order of the Coif from UCLA School of Law. The views expressed in this article are those of the author solely and do not reflect in any way the views or policies of the Middlesex District Attorney’s Office. The author is indebted to Stephen Hoctor for creating an earlier version of an article on this subject.