Monthly Archives: October 2013

Lauding and Learning: The BBA Civil Gideon Conference

This year marks the 50th anniversary of the seminal case Gideon v. Wainwright, which ruled that state courts must provide counsel for parties that cannot afford them.  It represented a major turning point in the practice of law and individual’s rights in the United States.  It is hard to believe that there existed a recent time when public defense was not considered a basic right in a civilized country founded on the ideal of justice for all. 

In support of these efforts and in conjunction with the BBA’s Statewide Task Force to Expand Civil Legal Aid in Massachusetts, the BBA held a half-day conference entitled Examining the Civil Right to Counsel on the 50th Anniversary of Gideon v. Wainwright.  The event featured keynote speaker New York Chief Judge Jonathan Lippman.  Judge Lippman, who established The Task Force to Expand Access to Civil Legal Services in New York, the model for our own Statewide Task Force, also sat down with the members of the BBA’s Statewide Task Force before the half-day conference.  He has been a leader in successfully securing additional funding for civil legal aid in New York.

Judge Lippman argued that civil legal aid transcends doing a good deed.  It is not simply about helping the poor.  Rather, it should be considered a personal right, just like education and medical attention.  Furthermore, if funded correctly, it can provide a significant net savings to taxpayers.  He talked about his combined approach – (1) making the case for more public funding with his task force’s reports and statewide hearings and (2) implementing programs such as his pro bono requirement for bar admission and the use of retired lawyers for pro bono work. 

Presenters from California and Pennsylvania followed, describing the experiences in their states.  First, Bonnie Hough, Supervising Attorney of the California Administrative Office of the Courts and Clare Pastore, professor at USC Gould School of Law and a member of the California State Bar Access to Justice Commission’s Right to Counsel Task Force spoke on the pilot program established by the Shriver Civil Right to Counsel Act.  This six-year project established, funded, and is evaluating a number of innovations in courts such as courthouse help desks, expansion of e-filing systems, offering more settlement assistance, and providing court-employed neutral housing inspectors.  The speakers noted that court cooperation provided one of the most important reasons for the project’s success and had high hopes for its continued support and funding by the state legislature. 

Cathy Carr, Executive Director of Community Legal Services of Philadelphia and Co-Chair of the Philadelphia Bar Association’s Civil Gideon, described the Pennsylvania experience.  She talked about the various techniques activists have used to garner support for civil legal aid funding in the state.  She emphasized the importance of gaining ground-level support and instituting small changes as a means to achieving the eventual goals of major systemic transformation.

It’s heartening to look back at the last 50 years and see just how far we’ve come.  But this also reminds us of countless unserved people with legal needs in the areas of domestic violence, housing, and custody cases, to name a few.  Not only is there no comprehensive civil right to counsel in the United States, but there is neither enough funding nor enough lawyers providing these necessary and valuable services.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Catching Up . . . Have You Heard?

SJC Annual Address

Last Wednesday, Chief Justice Roderick Ireland gave his annual address at the Massachusetts Bar Association’s Bench-Bar Symposium at the John Adams Courthouse.  For the first time in a long time, the courts’ future looks bright.  Ireland spoke highly of the new leadership of Chief Justice Paula Carey and Court Administrator Harry Spence, as well as the Governor and legislators who approved a much needed judicial pay raise, the first in seven years.  The funding the Trial Court received will allow for some additional hiring to replace a handful of laid-off workers and has raised the morale of judges and clerks.  Furthermore, the court has returned to full hours and service in all clerks’ offices for the first time since the 2008 financial crisis.  Finally, the court is looking to the future with Ireland’s announcement that the SJC is working on an e-filing program.

Annie Dookhan Court Appearance

Last Friday, Annie Dookhan, the state chemist accused of tampering with and mishandling evidence, made an appearance in Suffolk Superior Court for a conference regarding a possible change of plea.  The night before, Attorney General Martha Coakley’s office recommended a five to seven year sentence and five years of probation if Dookhan pleaded guilty.  

In December 2012, a grand jury indicted Dookhan on 17 counts of obstruction of justice, eight counts of tampering with evidence, and single counts of perjury and falsely claiming to hold a degree.  Without the plea, Dookhan could face a massive sentence – each of the 25 counts of obstruction of justice and tampering with evidence carry up to a 10 year state prison term.  The single perjury charge can result in up to 20 years of prison time, and lying about her degree could add another 2½ years.  She has pleaded not guilty and her attorney is asking for a sentence of one year or less.

The BBA’s Drug Lab Working Group met one more time recently and is preparing a report for BBA leadership on its conclusions in the coming months.

SCOTUS Death Penalty Case

Last Wednesday, the U.S. Supreme Court heard oral argument in a capital punishment case, Kansas v. Cheever.  The defendant, Scott Cheever, admitted to fatally shooting Sheriff Matt Samuels in 2005.  He argued, however, that due to his methamphetamine usage, he was unable to meet the premeditation requirement needed for a murder conviction.  In a lower court, a psychiatrist testified on behalf of the defense substantiating this claim.  The prosecution countered with testimony from a government psychiatrist who examined Cheever under court orders.  The issue before the Supreme Court is whether the state violated the defendant’s Fifth Amendment privilege against self-incrimination by rebutting his defense with evidence from the court-ordered mental evaluation.

In oral argument, a majority of the justices appeared to side with the prosecution.

The BBA’s Death Penalty Working Group met for the first time early this week.  They will reexamine the BBA’s positions, investigate the possible use of the death penalty in Massachusetts, and discuss the legal implications of its use in a federal case in the state, such as for the Marathon Bomber.  They will meet monthly through the beginning of 2014 and report to BBA leadership then.

EJC Walk to the Hill

We are pleased to report that the Equal Justice Coalition is hard at work planning this year’s Walk to the Hill event.  The event will take place on January 30, 2014 from 11:00 a.m. to 1:00 p.m. at the Massachusetts State House.  On that day, hundreds of lawyers will meet at the statehouse to lobby their own lawmakers to protect state funding for programs providing civil legal aid to low income Massachusetts residents.  Stay tuned for more information about how you can get involved.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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The Hunter Becomes the Hunted: Will Schuette Hook Fisher?

On Tuesday, the Supreme Court heard oral argument in Schuette v. Coalition to Defend Affirmative Action, the latest case on affirmative action.  This came just a few months after the Court published its decision in Fisher v. University of Texas.  In Fisher, the question was whether race-conscious admissions policies at a public university were constitutional.  The Court in effect said yes, upholding limited affirmative action and allowing the University of Texas to continue its race-conscious admissions policies. 

The BBA’s amicus brief in Fisher highlighted the value of race-conscious admissions policies, and specifically focused on how they serve the legal profession by providing a diverse pipeline of undergraduate and law students. 

In Schuette, the Court is considering the constitutionality of Michigan’s 2006 state constitutional amendment, coming out of ballot initiative Proposal 2.  This prohibits preferential treatment based on race, color, sex, ethnicity, or national origin in state college admissions, jobs, and other publicly funded institutions.  In a sense, it is the reverse of Fisher – in Schuette, the question is whether the Constitution requires public universities to at least have the option of instituting race-conscious admissions policies like the University of Texas.

On Tuesday afternoon, each side had its 30 minutes before the Court .  The justices actively participated, asking many questions and framing the arguments.  John Bursch, Michigan’s state solicitor general argued that the Equal Protection Clause could not possibly require affirmative action plans for state institutions, because it barely permits them under only the strictest scrutiny.  He faced tough questions from Justices Sotomayor and Ginsburg, whose demeanors appeared to set them up as opponents to the constitutional amendment.  

Mark Rosenbaum and Shanta Driver argued on behalf of the plaintiffs that a constitutional ban on affirmative action was a violation of equal protection, but struggled to define the exact point of violation.  For example, Justices Roberts, Kennedy and Alito asked, if discretion to use race-conscious admissions policies was unconstitutional when enshrined in the state constitution, would it be constitutional if it was in the hands of the University Regents?  The University President?  The Legislature?  The Governor?

We look forward to hearing the Court’s answers.  Will the outcome impact the affirmative action victory we fought for in Fisher?  Only time will tell.  After all, as famed Supreme Court lawyer Ted Olson explained at the BBA’s Annual Meeting Luncheon, win or lose, we should be proud to have the Supreme Court.  It is a model for government institutions world-wide, because the arguments described here will result in written opinions this summer as the Court tackles yet another tough question. 

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Civility Can Save the Day in Law and Politics

Last week, political television pundit Chris Matthews made headlines during his Boston visit.  The BBA was there when he addressed the Greater Boston Chamber of Commerce Government Affairs Forum.  Matthews is on a book tour promoting Tip and the Gipper: When Politics Worked.  The irony of his book’s subtitle was not lost on the audience as week one of the government shutdown was coming to an end.  The subtitle – when politics worked – provided a perfect contrast to the recent events on Capitol Hill. 

Though television political banter is hardly known for its speakers’ calm demeanors and respectful exchange of ideas, Matthews pointed to these traits as the hallmark of a relative golden age of politics.  United States Representative from Massachusetts and Speaker of the House Tip O’Neill and President Ronald Reagan were on different sides of the aisle, but they managed to work together and find compromises to benefit the country.  Outside of politics, they became personal friends in a relationship built on mutual respect.  Tip was the first person to visit Reagan in the hospital after he was shot in a failed assassination attempt in 1981.  President Regan was fond of the expression “we’re all friends after 6:00.”  Both recognized the importance of talking through their differences and putting America first.

Matthews compared them with today’s government leaders.  He noted that O’Neill represented the President before Russian leader Mikhail Gorbachev in a move considered normal at the time.  When he asked if anyone could imagine President Obama sending John Boehner as his personal representative before Vladimir Putin, the audience laughed. 

Matthews noted that the biggest problems with government today are a lost sense of national unity and a lack of personal relationships between lawmakers.  As he put it, political “lubrication” comes from personal relationships –lawmakers are much more likely to compromise at work when their spouses are friends outside of it. 

Lawyers can learn a lot from these messages.  Much like politics, the nature of law as a profession presupposes an adversarial relationship during the day.  But, as BBA President Paul Dacier notes, lawyers should be able to share a drink after work.  He is a strong proponent of civility in the courtroom and in our profession. 

In government, civility can be a means to ending political stalemate and the government shutdown.  In the courts it can expedite the legal process, earn you the respect of your peers, and even help you win your case.  Civility truly can save the day.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Sequestration to Solution

The term “budget sequestration” refers to automatic categorical federal spending cuts.  We are now seeing the immediate results of the sequestration enacted in the Budget Control Act of 2011 that kicked in on March 1, 2013.  The federal judiciary has been amongst the hardest hit.  Operating on an annual, nationwide $7 billion appropriation, less than 0.02% of the total federal budget, the courts have long been stretched thin.  However, with the latest sequestration resulting in a loss of about $350 million, roughly five percent of its budget, the courts are at their breaking point.  The cuts have resulted in mandatory furloughs, hiring freezes, the elimination of numerous positions, training cutbacks, decreases in courthouse security, and major budget hits for indigent defense providers.

This dire situation even prompted some judicial vigilantism when a New York District Court judge took matters into his own hands.  In United States v. Laron Spicer, Judge Sterling Johnson Jr. held that although jurors merited protection due to a defendant gang member’s record of witness tampering, he could only afford to keep their names secret.  He refused to provide them with any additional safeguards, citing the multi-million dollar price tag associated with sequestering a jury.

Ironically, the small immediate savings to the federal government are likely to cost taxpayers far more in the future.  According to a recent Brennan Center for Justice report, cuts to federal defender services are resulting in increases in the number of cases assigned to private counsel, which is ultimately more expensive for taxpayers.

We at the BBA are very sensitive to this issue.  We have long been at the forefront of advocating for indigent defense services and fair judicial funding.  Recently, BBA President Paul Dacier and BBA representatives have been meeting with both state and federal court judges in Massachusetts to listen to their concerns.  Dacier, who frequently quotes articles XXIX and XXX of the Massachusetts Constitution, is a strong proponent of fair funding and honorable salaries for the judicial branch and the preservation of three co-equal branches of government.  We know it will be an uphill climb to accomplish these goals, but we are committed to finding solutions.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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