On August 16, 2021, Attorney Nathanson along with Attorney Jellison convinced the Supreme Judicial Court to issue a landmark ruling banning discrimination against LGBTQ and Black jurors in jury selection. Attorney Nathanson and Attorney Jellison convinced the SJC to go beyond its Goodridge gay marriage decision and rule that LGBTQ persons are part of a constitutionally protected class. Further, the SJC reversed our clients’ convictions because the trial judge failed to protect Black jurors from discrimination. The judge repeatedly ruled that there were enough Black jurors on the jury, so the prosecutor was not discriminating in striking other Black jurors. But in heavily minority communities like Boston, this is an open invitation to discrimination by allowing just enough Black jurors onto the jury and excluding all others, even if they are qualified. In a strong concurrence, SJC Justice Lowy argued that prosecutors should always have to explain their juror strikes if a defendant objects. A powerful and persuasive amicus brief was filed by GLAD, Black and Pink MA, and the Charles Hamilton Houston Institute for Racial Justice.
Amicus Brief Against Pretextual Stops
On behalf of MACDL, Attorney Wood co-authored an amicus brief challenging racist pretextual stops in Commonwealth v. Garner. Joining the Charles Hamilton Houston Institute for Racial Justice, the Committee for Public Counsel Services, and the New England Innocence Project, the brief argues that the routinely degrading practice of pretextual stops must be abolished. This case, dealing with a person who was repeatedly stopped by the same police officer for minor offenses, shows how pretextual stops and justifications for the inevitable searches that follow depend on racist assumptions of dangerousness, subjective police conclusions, and inferential leaps sold to courts as police “training and experience.” That kind of junk evidence in the service of an oppressive, racist practice must be banned from our courts.
SJC Agrees Defendants May Insist on In-Person Hearings
In a landmark ruling, the Supreme Judicial Court held that defendants may, in many circumstances, insist on in-person hearings rather than be forced to conduct a hearing via Zoom. In so ruling the SJC agreed with arguments made jointly by Attorney Wood for MACDL, along with the Charles Hamilton Houston Institute for Race & Justice and the Boston Bar Association. Requiring Zoom hearings has a disparate impact on poor people and people of color: they tend to do worse in such hearings and they have worse access to broadband internet necessary for such hearings. For a more detailed description, you can read the Boston Bar Association’s press release here.
Amicus Brief Against Racist Gang Databases
Attorney Wood recently consulted on and was a signatory (as MACDL’s representative) to an amicus brief in Commonwealth v. Sweeting-Bailey. This brief by a coalition of civil rights groups explains why gang databases are artificial racist constructs and unreliable indicators of criminal behavior. Therefore, the fact that someone has been placed in a gang database should not be a basis for reasonable suspicion that he or she has committed a crime. Read the brief here.
ABA Interview: Opposition to Forced Zoom Hearings
Attorney Wood was recently interviewed by the American Bar Association's Judicial Division Record about MACDL's support for a defendant who opposed being forced to waive his constitutional right to an in-person suppression hearing. Read the article here. The case, Commonwealth v. Vasquez Diaz, is currently pending in the SJC. Read the brief here.
Wrongful Amateur Athletic Accusation Unsubstantiated
Recently, Attorney Jellison successfully defended a juvenile in disciplinary proceedings initiated by an amateur athletic organization. The juvenile was not involved in any misconduct, and Attorney Jellison's careful investigation revealed ample exculpatory evidence and the misunderstanding that resulted in accusation of her client. Because of this careful work, Attorney Jellison was able to end the proceedings without the need for a stressful evidentiary hearing for her young client.
Racial Justice Litigation
Every attorney at Wood & Nathanson is motivated to advance racial justice. It is a central focus of what we do. We thought we would take a moment to outline some of our work in this area. We have brought litigation challenging racism in traffic stops, stop and frisk, jury selection and the school to prison pipeline. Racism pervades the criminal justice system and we will not stop challenging it.
"Comply with DYS" Not a Valid Probation Condition
On February 24, 2021, Attorney Alpert convinced the Appeals Court to vacate her client’s probation violation in Commonwealth v. Quigley Q. for failing to “comply with DYS requirements and conditions of liberty.” This condition of the juvenile’s probation violated art. 30 (separation of powers). Probation is a judiciary power and it may not be delegated to the executive branch (here, DYS). Instead of specifying terms of probation, the condition left the juvenile subject to the whims of DYS. Further, when a juvenile (or an adult) is in jeopardy of losing their liberty, they are entitled to know exactly what actions will cause the loss of liberty. These concerns equally apply to pre-trial conditions of bail. Although unpublished, this is a significant win because this unconstitutional condition of probation is commonly imposed in juvenile courts across Massachusetts.
"Zoom" Hearings Violate Constitutional Rights
On November 20, 2020, Attorney Wood on behalf of MACDL - along with Katherine Naples-Mitchell of the Charles Hamilton Houston Institute for Race & Justice and Meredith Shih of the Boston Bar Association - filed a joint amicus brief arguing that forcing defendants to have suppression hearings heard over “Zoom” will disparately harm people of color. Zoom hearings disproportionately limit access to these public hearings that determine whether police have engaged in unconstitutional conduct in cases that are disproportionately brought against people of color.
No "Dead Time": Convictionless Time in Jail Deserves Credit
On November 13, 2020, Attorney Wood and a team from Foley Hoag including Attorney Christopher Hart filed an amicus brief urging the SJC to hold that defendants who were jailed but whose convictions were invalid should be allowed to ask judges to credit that time in jail against another conviction. This is particularly true for defendants convicted in the infamous Massachusetts drug lab scandals. The principle is simple: the government took more of someone’s life than it was entitled to, that should count for something if the person is validly punished later.
Amicus: SJC Should Hear Full Appeal in Potential Wrongful Conviction
Attorney Wood - in his role as MACDL Amicus Committee co-chair - was proud to support the powerful amicus efforts of the New England Innocence Project, Boston College Innocence Program, The Exoneration Project, in Commonwealth v. Valle. The groups filed a joint amicus letter with the Supreme Judicial Court. Mr. Valle was convicted entirely on uncorroborated eyewitness identification testimony. Mr. Valle had an alibi. The case presents many of the factors identified in scientific research as risk factors for an erroneous identification. But his attorney never presented expert testimony on this research, relying only on jury instructions to educate the jury. The case appears to be a true miscarriage of justice. And yet, the Appeals Court not only rejected Mr. Valle’s appeal by viewing each error in isolation, but did so in an unpublished opinion and without even allowing his attorney, Jessica LaClair, to present oral argument. Read the amicus letter here.
The Road to Commonwealth v. Long
Following up on our recent post, Attorney Wood recently wrote a longer piece describing the litigation the led to the SJC’s recent decision in Commonwealth v. Long, which lessened the burden for defendants moving to suppress due to racial profiling or “Driving While Black.” You can read the full article at the MACDL website here.
Landmark Ruling Against Racial Profiling
MACDL, whose amicus committee is co-chaired by Attorney Wood, released a statement on September 17, 2020 lauding the SJC’s decision in Commonwealth v. Long, adopting much of a MACDL argument, that was a major step forward for racial justice on the roadways of Massachusetts. The MACDL amicus committee formed a coalition with NEIP, LCR and CHHIRJ that filed an amicus brief urging the Court to prohibit racial profiling in traffic stops. amicus arguing that the Lora equal protection standard for demonstrating that automobile stops are motivated by race was unworkable and should be replaced with a "but for" test - essentially banning pretextual stops. The Court unanimously adopted the MACDL view that the Lora test is unworkable and replaced it with a more flexible totality of the circumstances test in which the question is whether the totality of the circumstances demonstrate that the officers' decision to stop the defendant was motivated by race. Moreover, two members of the Court (Lenk & Budd) agreed with MACDL that the better solution is to ban pretextual stops altogether. The attorneys at Wood & Nathanson have been focused on changing the law regarding racial profiling for years. In Long, Attorney Wood helped put together the MACDL team that drafted its powerful amicus brief. And prior to Long, Attorney Malm was counsel in Commonwealth v. Buckley, which appears to have convinced the SJC to take the problem of pretextual stops more seriously. [click to read full post]
Juveniles Should Be Entitled to Credit for Time Spent in Pre-Trial Detention
On September 9, 2020, Attorney Jellison appeared in the first day of SJC Zoom arguments asking the Court to affirm a juvenile court's order granting her client credit for the time he spent in pretrial detention against the confined portion of his DYS commitment. Attorney Jellison's client spent 6 months in pretrial detention. Adults receive credit for the time they spend in correctional facilities pretrial against custodial sentences. For juveniles, however, this time is dead time. DYS does not use all of its rehabilitative tools in pretrial detention, and the time is not deducted from post-adjudication confinement. Confinement in a jail-like setting is profoundly damaging to youths' well-being. And pretrial detention burdens the exercise of important pre-trial and trial rights. Further, the youth most likely to be held pretrial and suffer these harms are the Commonwealth's most vulnerable: Black, Hispanic and/or Latino, and multi-system youth. Hopefully the SJC will see the policy against pretrial detention credit as unfair and take steps to provide credit to youth.
Emails Reveal New Evidence of Misconduct at Hinton Drug Laboratory
This week, the Boston Globe reported on a series of cases that Wood & Nathanson attorney Christopher Post has been working on for the past several years, along with parallel litigation by Attorney James McKenna. New information proves that misconduct at the Hinton Drug Lab was wider than previously known. This information came to light because of Attorney Post’s relentless push both to obtain the internal emails of the Office of the Inspector General (‘OIG’) and then his fight to make them public. Read the emails here.
Danya Fullerton Joins Wood & Nathanson
We are excited to announce that Danya Fullerton has joined Wood & Nathanson. Attorney Fullerton has experience in matters ranging from assault and battery and operating under the influence to assisting in high-profile cases such as the defense of James “Whitey” Bulger and Tarek Mehanna. She also helped win the leading Massachusetts case of Commonwealth v. White, in which the Supreme Judicial Court limited the search of cell phones and text messages.
Attorney Post in the News
Several news outlets have written articles about Attorney Post’s work, along with ACLU technologist Paola Villareal, in identifying defendants who were convicted of drug offenses without the Commonwealth ever notifying them that the substances in their cases tested negative for drugs. Articles in the Boston Globe, CommonWealth Magazine, and MassLive.com detailed efforts to vindicate 64 individuals wrongly convicted of 91 drug offenses. We are pleased to report that, in the wake of these revelations, several additional District Attorney’s offices have reached out to indicate their interest in helping correct the 278 additional wrongful convictions outside of Suffolk County that Attorney Post helped identify.
Attorney Post's Work Results In Dismissal of 91 Convictions for 64 Defendants
Wood & Nathanson is pleased to announce that, as a result of relentless, detailed work by Attorney Christopher Post, the Suffolk County District Attorney's Office is moving to vacate and dismiss ninety-one additional drug convictions in sixty-four defendants’ cases that were tainted by the ever-growing Hinton Drug Lab scandal. In these cases, each of the defendants pleaded guilty to at least one drug offense despite the fact that laboratory testing subsequently proved that substances in question were not drugs at all. We are thankful that DA Rollins and the Suffolk County District Attorney’s Office chose to work proactively with Attorney Post to achieve a just result.
COVID-19 Emergency Petition
On behalf of MACDL, Attorney Wood was part of a team that filed an emergency petition with the Supreme Judicial Court on March 24, 2020. Together with lawyers from CPCS and the ACLU, the petition asks the SJC to take immediate steps in light of the COVID-19 pandemic to reduce prison and jail populations to protect the health and lives of our clients, as well as correctional staff and the public. Read the petition here.
Amicus Brief: Racist Pretextual Stops and Distracted Driving Law
Attorney Wood was proud to be part of a team arguing that the Supreme Judicial Court should abandon its cases allowing for pretextual stops and restricting how defendants can prove that a particular stop was racially discriminatory. The amicus brief goes on to point out that the Commonwealth’s new “Distracted Driving” hands-free law limits data collection on stops by individual officers, making it essentially impossible to ever prove a claim of discrimination. The Court should replace the current test with a test that asks whether a driver would have normally been stopped for the violation without a pretext. If not, then the prosecution has the burden to prove that the stop was not discriminatory. This amazing team was made up of Oren Nimni for the Lawyers for Committee for Civil Rights, Katharine Naples-Mitchell for the Charles Hamilton Houston Institute for Race & Justice, Chauncey Wood for the Massachusetts Association of Criminal Defense Lawyers, and Radha Natarajan for the New England Innocence Project.