Soon, 2016 will be a memory. As we look forward to 2017, here are some things that have been going on in the Public Defender Division.
Interesting Litigation
Cash bail challenge
Are our clients being Punished for Being Poor ?
PDD Criminal Defense Training Unit Supervising Attorney, Shira Diner, and YAD attorney, Ryan Schiff are currently litigating the issue of cash bail in the SJC. Here is an update from Shira on the status of the litigation.
On September 23, we filed an Amended Petition For Relief under 211,3. This amended petition was written in response to an order issued by Justice Hines after our initial 211,3 was filed on August 5. In our original 211, 3 we appealed the denial of a Motion for Release on Personal Recognizance on behalf of a CPCS client (represented by Cristina Ayo who has been extremely helpful throughout this process) out of the Lynn District Court whose $250 bail was set without the judge first making a determination that she had the ability to pay the bail. In the Amended Petition we clarified the systemic nature of the problem of holding people on bails simply because they are too poor to pay. Our second filing contained 16 affidavits from PDD lawyers and Bar Advocates demonstrating the real consequences of bail for our clients. On November 8, the Attorney General submitted a letter in our case in which she wrote “that no defendant should be detained pending trial solely because he or she lacks the financial resources to post bail.” We are anxiously awaiting a decision from Justice Hines as to whether she will report the case to the full bench. I should add that this litigation has truly been an agency wide effort. Many lawyers both staff and bar advocates have worked with us in our efforts to find a plaintiff. They ran around collecting documents, records and everything else we asked of them. Many more took time to work with me on many drafts of their affidavits for the amended petition. Jeff Garland from the Boston Superior Court office helped us out with some invaluable research and Toyin Omisore, the SSA in New Bedford was instrumental in working with our client when she was released. There have been a number of investigators who have helped out with various aspects of putting this case together. Mike Perpal helped me with a Framingham D. Court issue that the client had and I can’t even begin to count the number of people who have pulled dockets and other documents in this case. As always Kristen Munichiello has gone above and beyond in helping us get out all the various petitions and responses.
Drug Court Challenge
May a judge hand pick attorneys to be part of a Drug Court “team”?
We believe attorneys have an ethical responsibility and uncompromised duty of loyalty to their clients whether in drug court or any other court. The SJC currently has this case under advisement.
The briefs are available online and you can watch PDD staff attorney, Paul Rudof in action during the oral argument.
Drug Lab Challenges
Bridgeman
What to do with 24,000 cases? IMHO Dismiss them all!
CPCS is a party to this major legal battle that seeks a global remedy of dismissal for the 24,000 plus convictions tied to the disgraced chemist, Annie Dookhan.
Writing the CPCS brief was a team effort: Ben Keehn, Nancy Caplan, Eric Brandt and Emily Cardy all contributed. The briefs are available on line and you can watch Ben Keehn in action during oral argument.
Farak
What to do with another 10,000 plus cases tainted by a drug abusing chemist?
On December 15, hearings began in Hampden Superior Court to determine the scope of state chemist, Sonja Farak’s misconduct and when the Attorney General’s office knew about it and what they did with the knowledge. A key question is whether attorneys in the Attorney General’s Office intentionally withheld important exculpatory evidence. PDD Appeals Unit staff attorney, Rebecca Jacobstein, is one of the lead attorneys in this important post-conviction litigation. You can read about the hearings here, here and here. A decision by Superior Court Judge Richard Carey is expected in March.
Breathalyzer Litigation
Are breathalyzers accurate?
Hundreds of cases are on hold pending resolution of this issue in a consolidated hearing in front of Judge Brennan in the Concord District Court.
PDD Norfolk County Superior Court AIC Larry Tipton and Roxbury Defender staff attorney, Josh Raisler-Cohn are leading a team of lawyers that are challenging the reliability of the Draeger 9510 breathalyzer. The consolidated hearing is scheduled to begin January 17, 2017, in Concord District Court. The estimated number of all witnesses is now at fourteen. The consolidated defendants have identified at least eight problem issues encompassing the source code, the IR and EC sensors and the machines inability to detect interfering substances.
Did you know?
Richard Slowe, PDD Chief Investigator, has been a member of the Veteran’s Trial Court Advisory Board. The Board will soon be making recommendations to the Chief Justice of the Trial Court.
Adrian Angus, a staff attorney in the Worcester Superior Court Office is one of twenty-one attorneys selected for the MBA’s Inaugural Leadership Academy. You can read more about it here. And Adrian and friend, Boris Millman, have a weekly podcast: AM in the AM, where they discuss politics, law and current events “as only they can”.
PDD Staff Attorney, Zach Lown, has a famous grandfather. Zach’s grandfather, Bernard Lown, a Boston cardiologist and peace activist was a founding member of the International Physicians for the Prevention of Nuclear War (IPPNW) and was awarded the Nobel Peace Prize in 1985. Here is a link to Dr. Lown’s Wikipedia page.
Managing Director, Soudie Tahmassebipour, and Drug Lab Crisis Litigation Unit AIC Nancy Caplan, were part of a group from Massachusetts, who traveled to Uzbekistan (on their own time) to educate and have dialog with attorneys who are interested in bringing our brand of public defense to Uzbekistan.
PDD Criminal Defense Training Unit Supervising Attorney, Shira Diner, was appointed by Governor Baker to the Massachusetts Sentencing Commission, replacing outgoing CPCS Sentencing Commissioner, John Redden, who served for two years.
PDD Staff Attorney Ryan Sakoda has a half-time Liman fellowship that allows him to give advice to attorneys on housing issues. Please contact Ryan if your client has a housing issue, collateral to the criminal proceeding.
Finally…
I’ve struggled with using the word “indigent” as part of the description of our work. Geoff Burkhart is an attorney and project director at the ABA where he works to improve indigent criminal defense systems. He’s written a compelling essay, arguing we should abandon the use of the word, “indigent”.
Also, Ty Alper, a clinical professor of law at Berkeley, has written an interesting article on the ethics of social media use.
And thank you to everyone for fighting the good fight every day for our clients! Best wishes for the New Year.
Randy Gioia
Deputy Chief Counsel
Public Defender Division
Committee for Public Counsel Services
44 Bromfield Street
Boston, MA 02109
617-910-5715