Monthly Archives: May 2011

A Race to Avoid Being Dead Last: MA Needs Access to DNA Now

In less than two weeks, the Judiciary Committee will be holding a public hearing on the BBA’s bill on access to DNA evidence.  Sponsored by Senator Cynthia Creem and Representative John Fernandes, S 753 and H 2165 are on the June 8th agenda in Gardner Auditorium.  Massachusetts likes to think of itself as cutting edge and as an innovator of ideas and practices.  But the sad truth is that Massachusetts is one of only two states that does not guarantee access to DNA testing.  Oklahoma is the other.

The hearing is just the next step in a process that began in the fall of 2008 when then BBA President Kathy Weinman formed a task force to study reforms needed in Massachusetts to reduce the risk of convicting innocent people.   After fourteen months of work, the Task Force released its report titled Getting it Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts.  Guiding the work of this Task Force was the understanding that for every person wrongfully convicted, a criminal is free to commit more crimes.

This Report, an impressive achievement, did not just sit on a shelf gathering dust after it was published.  Instead it has been a critical part of the conversations we’ve had with members of the legislature and our partners in public safety.  We’ve discussed the process that led to the Report and described how it’s more than just undoing a wrongful conviction, but bringing justice to victims by convicting the guilty.  In all of our meetings there has been a shared understanding of the importance of having a statute like this in Massachusetts.  Often we’ve been met with enthusiasm to help get this done in Massachusetts, and also questions as to why this hasn’t been done before.

An access to DNA statute is important because it is not uncommon for a person to exhaust all possible appeals without being allowed access to DNA evidence from the case.  Sometimes the DNA evidence that was available at the time of the defendant’s trial was never tested or the methods of DNA testing used at the time of the trial were inexact, yielding unreliable results.

In practice, Massachusetts does much of what this bill proposes.  In many cases, access to DNA is granted to the defendant.  The Massachusetts State Police Crime Lab maintains all DNA evidence indefinitely and their facilities meet the highest standards of the field.  To his credit, Suffolk County District Attorney Dan Conley has been doing this for years.  The problem is that none of this is required by law.

Massachusetts has to pass this bill now.  The Oklahoma Bar Association passed a resolution last September establishing a commission to address the reliability and accuracy of convictions in their state.  This comes two years after we created our Task Force and nearly one year after Getting it Right was released.  Massachusetts could end up being the only state in the country without post-conviction access to DNA.  Wouldn’t that be embarrassing?

-Kathleen Joyce

Government Relations Director

BostonBar Association

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Hearing the Call for Alimony Reform

“Fair,” “Predictable,” “Balanced,” and “Much Anticipated” were the words used to describe An Act to Reform and Improve Alimony, at yesterday’s Judiciary Committee hearing in standing room only Gardner Auditorium. For the BBA, which has worked long and hard on this issue, it was a day that underscored the difference practicing attorneys can make when they volunteer their time to help draft fair and impartial legislation.

Senator Candaras and Representative Fernandes could not have been more gracious in their praise of those lawyers who endured fourteen months of marathon sessions in an effort to craft an impartial and fair law.  The BBA’s Family Law Section Co-Chair, Kelly Leighton, was the BBA’s liaison to the 14-person Legislative Alimony Task Force that worked for months behind closed doors on this legislation.

Through their public testimony, members of the Task Force described the process and what it would mean to divorcing parties inMassachusetts.  And we learned what happened in those private meetings yesterday.  Kelly Leighton testified that “the only thing we could agree on at the start of the process was that the law needed to be changed.”  It was emphasized that nobody got everything they sought and everyone gave up something they wanted.

The Task Force fittingly gave credit to the leadership of both Senator Candaras and Representative Fernandes.  They assembled representatives from groups often at odds on this issue and managed to get them to work towards a simple goal – making the Massachusettsalimony law better.  Also at the table at those meetings was Chief Justice Paula Carey of the Probate and Family Court.  Her guidance was critical to the process.  She was generous with her time and the Task Force was careful to not recommend anything that would adversely impact the Probate & Family Court.

The Task Force didn’t just spin their wheels…they did real work.  They incorporated divergent views and different perspectives to produce what has been heralded as a landmark statute that will modernize the laws guiding alimony payments and grant judges more discretion in their decisions.

Senator Candaras interpreted the participation of the individuals on the Task Force as an opportunity to serve.  She described it as a great experience and recognized the participants for generously donating hundreds of hour of professional time.  Now the Legislature must pass this bill.   With its broad support there’s buzz that it could happen this spring.

Yesterday’s hearing also focused on other issues near and dear to the BBA – including  the repeal of the adopted children statute (H 2262), the Massachusetts Uniform Trust Code (H 2261 and S 688) and technical corrections to the Massachusetts Probate Code (S 733).  I was impressed with the attention the members of the Judiciary Committee gave to each person who was called to testify and I was especially impressed with our own members who sat for hours listening to others testify on the various issues on yesterday’s agenda.  Our last bill to be heard, the technical corrections to the probate code, was called at 6:30 p.m. – five and a half hours after the hearing started.

Advocacy is a long process involving many talented volunteers, thoughtful legislators and lengthy hearings.  This is what defines life in a constitutional democracy.

-Kathleen Joyce

Government Relations Director

BostonBar Association

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Funding the Courts is Good Business

Identifying the things we stand for as an association is essential.  Without question, one thing that the BBA has always stood for is equal access to justice for all.  This is a fundamental part of the BBA’s mission and something that the BBA works on throughout year.

A key component of equal access to justice for all is adequate funding for the judiciary.  Alas, it’s no secret that the courts have been underfunded for years and the problem is getting worse.

Figuring out “why” something matters to us is just as important.  Our support for funding for the courts may seem obvious; we are a professional association of lawyers so it makes sense that we would want the courts to have the money necessary for delivering justice to all.  But our support goes beyond our allegiances as attorneys, and the impact of grossly inadequate funding for the judiciary reaches beyond the courtrooms and halls of law firms and into the boardrooms of major corporations.

Conversations focused on court funding and what the BBA can do to help often find their way onto our Council agendas.  And when court funding isn’t an agenda item it’s talked about in small groups before or after the meetings.  Even a cursory glance around our Council table will reveal that the BBA’s governing board is made up of several representatives from the business community.  Of our 34 member body, we have seven in-house counsel from global companies employing thousands of residents throughout the state.  Like their colleagues working in other sectors, in-house counsel believe adequate funding for the judiciary is critically important.

Here are some of the reasons why:

  • A well run Superior Court Business Litigation Session provides a valuable forum for resolving major commercial disputes;
  • Court delays and backlogs mean that employees have to take more time from work to appear in court, resulting in lost wages for the employee and lost productivity for the employer;
  • Delays in resolving civil cases drive up costs for companies and can postpone business transactions, mergers, and acquisitions.  This may diminish the appeal of the business environment in Massachusetts.

Putting a dollar figure on these delays is difficult.  One thing we do know: an inadequately funded court system is bad for the Massachusetts economy.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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A Tale of Two Hearings

In a study in contrasts, the Judiciary Committee and the Revenue Committee held public hearings this week on issues of importance to the BBA.  The Judiciary Committee held a record breaking 20-minute hearing earlier this week on court reform, a BBA priority for at least the past 20 years.  Judiciary hearings are known to be lengthy and frequently last late into the night — with bills taking many months to work their way out of the committee.  After this week’s relatively brief hearing, the chair promised to swiftly move the bill along.  In fact, it is expected to be taken up by the full House next week.

The court reform bill on the Judiciary Committee’s agenda would replace the Chief Justice for Administration and Management with a professional administrator who would handle non-judicial functions.  There would also be a new “chief justice of the Trial Court,” to oversee strictly judicial matters.  Described by many as an historic and radical reshaping of the court department, the bill calls for other reforms that would impose guidelines on letters of recommendation for job candidates throughout state government and would require applicants for certain positions to take a screening exam.

The Revenue Committee’s public hearing held today was an entirely different story.  On the agenda was a proposal to raise revenue in an effort to reduce budget cuts.  This bill was described by supporters as making the tax system more equitable.  They testified that lower income people would see their tax rates dip and higher income people would see their tax rates increase.

Also on the Revenue Committee’s agenda was H 2559, An Act Relative to Continuing the Tax Base Rule for Property Acquired from Decedents, or the so-called income tax “step-up” bill filed by Representative Alice Peisch on behalf of the BBA.  The step-up bill, a detailed but very important piece of legislation, addresses a substantial yet hidden Massachusetts tax for successors to decedents’ property resulting from the change in the federal basis rules for 2010.

Unlike the Judiciary’s hearing which was held in a typical hearing room with plenty of seats for those in attendance, the Revenue hearing was standing room only.  The auditorium was filled with concerned citizens from across the state.

A great big hat tip to the BBA members who stood in line for thirty minutes just to get through the doors of the state house only to find the auditorium jam packed!  Citizens who support raising taxes for the wealthy made their presence known by loudly rustling pieces of yellow paper in unison.  Even with our sponsor by our side, we waited for 3 hours before being asked to wait some more.  So what happens next now that the bill has been publicly heard and is officially in play?  We’ll meet with Chairman Jay Kaufman and the Revenue Committee staff and go over the details of the BBA’s step-up bill.  This will provide us with the benefit of an open dialogue, and we won’t have to restrict our testimony to 3 minutes.

-Kathleen Joyce

Government Relations Director

BostonBar Association

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