"The Massachusetts Association of Criminal Defense Lawyers is the only statewide association of lawyers in Massachusetts devoted exclusively to serving all segments of the defense bar. According to our mission statement: MACDL's mission is to preserve the adversary system of justice; to maintain and foster independent and able criminal defense lawyers and to ensure justice and due process for persons accused of crime. MACDL will be an advocate for the advocate." If you practice criminal defense law in Massachusetts, you belong in MACDL.
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In Defense of a Reasonable Decision by a Fair Judge
The following is the text of the letter sent by Mike Hussey, MACDL President, to the editor of Massachusetts Lawyer's Weekly:
The Massachusetts Association of Criminal Defense Lawyers is dedicated not only to protecting individual rights but also to supporting an independent judiciary. Today we stand in defense of the judicial independence and integrity of Judge Thomas Estes who has been unfairly criticized for sentencing a defendant in a recent sexual assault case in Western Massachusetts.
Practically all of the criticism directed at Judge Estes shares one important feature: it has been lodged by people, including elected officials, who were not present in the courtroom and have not taken the time to investigate the circumstances surrounding the sentence. While not hesitating to criticize Judge Estes's decision, Congresswoman Katherine Clark, for example, readily admitted that "she had yet to review all of the specifics of the case."
Governor Baker, on the other hand, offered some useful advice for understanding what happened in this case, among others, when he said, "I have a friend who's a lawyer and told me one time that unless you sit in a courtroom through a trial and hear all the evidence, you should be careful about drawing a lot of conclusions from it." Fortunately, a thirty-two minute recording of David Becker's sentencing hearing is available on-line. See
https://www.youtube.com/watch?v=psq5FT6Bbcw. A review of that recording reveals the following undisputed facts.
On April 15, 2016, Becker was arrested and charged with rape and indecent assault and battery. Four months later when he appeared in court, the Commonwealth filed a motion dismissing so much of the complaint as alleged rape.
But for this act of prosecutorial discretion, the case could not have been resolved in District Court. Prosecuting a rape charge requires the government to present its evidence to a grand jury and obtain a Superior Court indictment – a pre-requisite to sending a defendant to state prison. In this instance, the Commonwealth exercised its prerogative to proceed in District Court.
Charge concessions like this are not uncommon. Often, prosecutors who make them ask for something in return, e.g., a defendant's agreement to plead guilty or accept a particular sentence. Here, there were no strings attached. Becker was not only permitted to ask for whatever sentence he wanted; he retained the right to withdraw his plea if the judge exceeded his recommendation.
At the change of plea hearing, Judge Estes noted how the prosecutor's request that Becker spend two years behind bars appeared "at odds" with the contents of an impact statement submitted by one of the victims. This young woman – referred to as "Victim #1" throughout the proceeding – recommended that Becker be placed on probation and ordered to obtain treatment. Neither she nor "Victim #2" asked the Court to send the defendant to prison. In fact, Victim # 1 wrote that Becker had been a friend and she had no desire to participate in "ruining his life."
During her remarks, the prosecutor commended Victim #1 for her "very well written" statement. Given the fact that Becker would soon be "going off to college," the prosecutor focused on his potential danger to others. Making Becker register as a sex offender would protect the public, she argued, by putting others "on notice" that he had "this history."
In response, defense counsel quoted from a report authored by a clinician specializing in the treatment of sex offenders. This clinician determined that Becker posed a "low risk" of reoffending. In her expert opinion, not only would "[r]equiring him to register as a sex offender" fail to "greatly serve the public interest or public safety," it could "contribute to increased isolation, shame and negative affective states – all of which may make him more vulnerable to a range of expressed behavioral dis-control." The notion that mandatory registration might prove counter-productive in some cases is hardly radical. As the Sixth Circuit Court of Appeals recently noted, laws requiring sex offenders to register may "actually increase the risk of recidivism, probably because they exacerbate risk factors for recidivism by making it hard for registrants to get and keep a job, find housing and reintegrate into their communities."
Judge Estes ultimately imposed a sentence within the bounds established by the Legislature and in accordance with the victims' rights statute. He placed the defendant on probation for two years with certain conditions, including that Becker obtain sex offender counseling, consume no drugs or alcohol and submit to random drug and alcohol screens. Before announcing this sentence, Judge Estes once again conveyed his respect for the wishes of those most directly impacted by Becker's behavior. "That is moving to the Court," he stated. "That is telling ...."
Much of the outcry in this case has focused on the characteristics of the defendant. There is no question that issues of race, class, and gender frequently cause inequities in the administration of justice. By the same token, it is equally clear that Judge Estes displayed no bias in sentencing David Becker; rather, he correctly considered the fact that Becker had never been in trouble with the law before and was an excellent student. Nor did his sentence send "a troubling message to victims of sexual assault." On the contrary, the public record demonstrates the work of a conscientious judge who fashioned a thoughtful disposition in a difficult case.
Michael S. Hussey
President's Message: June 2016
It was great to see so many of you at our Annual Spring Meeting. Our thanks go out to Attorney Dean Strang, who became a household name after being featured in the Netflix documentary series "Making a Murderer." And once again we congratulate our award recipients: Attorneys Anne Goldbach and Robert Sheketoff for their dedication and commitment to due process, constitutional rights, and zealous advocacy.
Continuing Legal Education
Over the past few months, MACDL has sponsored or co-sponsored a number of legal education events. In March, MACDL presented its always popular Post-Conviction Litigation Seminar to a packed house in Boston. Last month, MACDL teamed up with Suffolk Lawyers for Justice for an all-day conference at UMASS-Boston dedicated to criminal law practice. In April, MACDL sponsored a seminar, "Police Misconduct Law for Criminal Defense Practitioners," in Boston hosted by Goodwin Proctor. This program will be repeated on June 22, 2016, in Worcester at 4:00 p.m. and in the fall in Springfield. See website for more details.
The Amicus Committee continues to work zealously and productively to promote our values in cases before the Massachusetts and federal appeals courts. We have signed onto Commonwealth v. Laltaprasad arguing that judges have the power to sentence lower than the minimum
mandatory sentence. Committee Co-Chair Chauncey Wood, along with a team from Foley Hoag, is working on the case of Commonwealth v. Thomas, where the issue is whether a defendant is entitled to suppression of an identification where police fail to follow the I.D. procedures laid out in Silva-Santiago. The amicus brief will likely catalogue all the procedures adopted by Massachusetts police departments in order to demonstrate that the majority of them have already adopted the practices as a matter of internal policy.
MACDL has continued to press for a full investigation and public accountability concerning chemist Sonia Farak’s misconduct due to her near daily drug use at the Amherst Drug Lab from 2003-2013, and into allegations of prosecutorial misconduct in relation to post-conviction litigation regarding Farak cases. Our thanks to Board member Luke Ryan for spearheading our efforts in this regard. Earlier this spring, the Attorney General’s office filed a 54 page report detailing Farak’s malfeasance. A second 3 page report, submitted by Special Attorney General (and former judge) Peter Velis, cleared prosecutors of any wrongdoing for the three year delay in revealing information in their possession regarding the scope of Farak’s misconduct. However, other materials now make clear that former prosecutors in the Attorney General’s office deliberately withheld highly exculpatory evidence pertaining to Farak’s history of drug use.
An evidentiary hearing on motions regarding the failure to provide the discovery is expected to take place in the coming month. MACDL will continue to monitor this situation so as to provide support for counsel on these cases and demand fuller accountability and remedies for this misconduct.
Attorney Visitor Dress Code
Acting upon complaints (almost all from women) about attorneys being denied entrance or otherwise hassled at state prisons because of the way they were dressed, MACDL has worked closely with CPCS and other groups to seek changes in DOC procedures. The result is a new and improved dress code for attorney visitors with fewer restrictions and better procedures to be followed if issues arise. A copy of the new code is on the DOC website. Thanks to MACDL members Victoria Kelleher, Patty Dejuneas and others for their efforts in bringing about these changes.
The Elimination of Court Reporters
As many of you know by now, the Trial Court has announced that it will lay off all court reporters by January of 2017 and replace them with digital recording in all courtrooms. Earlier this year, I wrote a letter (joined in by past-presidents Max Stern, Liza Lunt and Jack Cunha) to Chief Justice Gants and Trial Court Administrator Harry Spence expressing our serious reservations about this development. We continue to have concerns about this new technology’s ability to produce accurate transcripts and have called for delaying the use of digital recording in serious felony cases until, and only if, the assembly and production of complete and accurate transcripts through digital recording has been sufficiently demonstrated.
Other Activities, etc.
Marty Rosenthal, our representative on the Sentencing Commission, continues his tireless efforts there to advocate for major reforms in Massachusetts sentencing policies and procedures and for shifting resources away from over-criminalization and mass incarceration and toward crime prevention…. Congratulations to our law school Board representative Trevor Maloney on receiving an award from the National Lawyers Guild recently for his volunteer efforts. Good luck on the bar exam! . . . MACDL’s representative on the Working Group of the Council of State Governments, Leslie Walker, reports that the group has recently received and reviewed extensive data which should hopefully provide further support for reforms in three areas: incarceration levels, recidivism, and post-release supervision. . . . MACDL has been working in cooperation with the New England Center for Investigative Reporting in an ongoing series regarding the largely unaddressed problem of prosecutorial misconduct in the provision of discovery and trial argument . . . My thanks to Dave Nathanson and John Thompson for coordinating MACDL’s proposals for revisions to the S.J.C.’s Model Jury Instructions on Homicide . . . MACDL has been asked to support the upcoming referendum question on the legalization of marijuana in Massachusetts. If you have a strong opinion as to whether MACDL should take a position on this issue, please contact me at firstname.lastname@example.org..... We recently joined with many other criminal justice reform groups in calling upon Governor Baker to fill the current Parole Board vacancy with a social worker, sociologist, psychologist or psychiatrist who is both committed to the objectives of parole and who has a background in treating mental health problems and addiction.
Thanks to all of the attorneys mentioned above for their efforts on behalf of MACDL and for many others who help to make us a strong and active organization. My best wishes to all of you for an enjoyable summer.
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MACDL Announces Witness Advocacy and Representation Network (WARN)
MACDL is pleased to announce the creation of a state-wide Witness Advocacy and Representation Network (WARN) designed to provide pro bono legal representation for individuals who are contacted by law enforcement agents for questioning or interrogation. For more information and to participate, click here.
Comments on Proposed Ethics Changes
MACDL recently submitted our comments to the SJC on the proposed changes to the Code of Professional Responsibility. Prepared by Marty Rosenthal and Liza Lunt, the comments can be found here.
MACDL Recommendations on Eyewitness Evidence
In response to the request of the Supreme Judicial Court, MACDL submitted extensive comments on the draft report and recommendations of the SJC Study Group on Eyewitness Evidence. The comments prepared by Lisa Steele were endorsed by the Board of Directors and sent to the court in a letter from MACDL President Liza Lunt. For the complete text of MACDL's position, click here. (You can view a copy of the Study Group's report here.)
From the Sentencing Project
Marc Mauer, of the Sentencing Project in Washington D.C. offered to share with us two shadow reports submitted by The Sentencing Project to the U.N. Human Rights Committee in advance of its review of U.S. compliance with the International Covenant on Civil and Political Rights (ICCPR) later this month. The first report, Racial Disparities in the United States Criminal Justice System documents the impact of racial disparities in the U.S. criminal justice system and how they violate the ICCPR, which the United States ratified in 1992.
The second report, Democracy Imprisoned: A Review of the Prevalence and Impact of Felony Disenfranchisement Laws in the United States, details the impact of felony disenfranchisement laws in the United States in violation of the ICCPR.
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MACDL comprises approximately 1,000 criminal defense lawyers, covering all types of criminal defense matters in the federal courts and every state court serving the Commonwealth. You can search our Member list by name or location.