The Boston Bar Association (BBA) welcomes today’s
ruling of the Supreme Judicial Court (SJC) in Commonwealth v. Wade
(SJC-11913)
as a major advance in the areas of wrongful convictions and attorney-client
privilege. The BBA filed an amicus
brief in the case, and the Court’s opinion coincides with the brief’s
arguments on each of these points.
The SJC’s interpretation of the
Commonwealth’s new forensic-testing law (M.G.L. Chapter 278A)—which the BBA
proposed for enactment—ensures that, to those who assert they were wrongfully
convicted, the law fully extends the right to pursue DNA testing that can help
establish their innocence.
This is in keeping with the intent of the Legislature in passing the law, and
the BBA in drafting the original proposed legislation—to allow for
post-conviction forensic testing if the defendant can show, among other things,
that the requested testing had not been conducted at the initial trial for any
one of five reasons outlined in the statute, including inadmissibility of the
evidence, or the subsequent development of new DNA tests. Here, the defendant
argued that the test sought was not in existence at the time of his trial,
which, the BBA’s brief contended, is enough to satisfy one of the requirements
of the new law.
The case reached the SJC after a lower-court judge denied the defendant
access to post-conviction DNA testing by imposing an additional requirement not
found in the statute: identification of the “primary cause” or “real reason” for
a lack of any DNA testing at the time of trial. The SJC, however, found that no
such requirement exists.
It was in the course of attempting to meet this unjustified burden at the
lower level that the defendant’s right to attorney-client privilege was violated
when the court ordered his trial attorney to testify and reveal highly
confidential communications shielded by attorney-client privilege—a bedrock
protection in the American legal system.
The SJC’s decision today protects that privilege in Chapter 278A cases. “The
[trial] judge concluded that the privilege had been waived, and ordered trial
counsel to reveal privileged communications; he also denied Wade's motion to
strike those answers. This was error.” The SJC went on to find that the filing
of a motion under Chapter 278A is not itself a waiver of the attorney-client
privilege.
The inquiry that follows the filing is an objective test of
what a reasonably effective lawyer would have done, not a subjective analysis of
what trial counsel actually did.
The BBA initially spurred enactment of
Chapter 278A through its Task Force to Prevent Wrongful Convictions and their
resulting 2009 report, Getting
It Right: Improving the Accuracy and Reliability of the Criminal Justice System
in Massachusetts. Today’s holding is in keeping with the spirit of
Chapter 278A and will help wrongfully-convicted individuals win new trials,
where warranted by forensic evidence.
“The purpose of Chapter 278A was to broaden the availability of DNA testing
to criminal defendants who meet the requirements of the statute,” said Michael
Ricciuti of K&L Gates, lead author of the BBA brief. “The trial court’s
reading of the statute—to impose an additional procedural hurdle and find an
attorney-client privilege waiver—would have turned this legislative intent on
its head, strongly deterring criminal defendants from seeking the protections of
the law. Today’s reversal of that interpretation preserves the access to justice
the statute was designed to foster.”
“In its report Getting it Right, the Boston Bar Association
concluded that a new statute was necessary to ensure access to justice, and the
Legislature agreed,” said BBA President Lisa Arrowood. “The attorney-client
privilege is critical to the proper functioning of the criminal-justice system.”
Amicus Curiae means, literally, friend of the court. Since
1975, the BBA has filed amicus briefs on matters related to the practice of law
or the administration of justice. The 2015-2016 Amicus
Committee is chaired by Anthony Scibelli of Barclay Damon, LLP.