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FOR IMMEDIATE RELEASE: 8/21/2019

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BBA Statement on Massachusetts Supreme Judicial Court Decision in Commonwealth v. Johnson

The Boston Bar Association (BBA) applauds the decision of the Massachusetts Supreme Judicial Court (SJC) today in Commonwealth v. Johnson (SJC-12673), which ensures that the Massachusetts law providing access to post-conviction testing of forensic evidence will be interpreted as the Legislature intended. This ruling, consistent with SJC jurisprudence in past cases, applies an appropriately broad interpretation that allows anyone whose liberty is restrained as a result of a Massachusetts conviction to pursue such testing.


Johnson—who was required to register as a sex offender as a result of a 1994 conviction—maintains his innocence and seeks the opportunity to test DNA evidence of which he was unaware at the time of trial, in the hope it will lend evidentiary support to his wrongful-conviction claim. The law (known as Chapter 278A) limits access to testing to those who have been convicted in Massachusetts of a criminal offense and are “incarcerated [or] on parole or probation or whose liberty has been otherwise restrained as the result of a conviction.” Johnson’s petition was denied at the lower level when the judge found that he did not meet this threshold requirement, because he was then incarcerated as a result of failing to register as a sex offender and not as a direct result of his conviction.


The BBA’s amicus brief, drafted by Meredith Shih of Wood & Nathanson, LLP, argued that because Chapter 278A was enacted specifically to facilitate access to post-conviction testing to remedy wrongful convictions, the SJC should adopt a broad interpretation of its standing requirements. Specifically, although Johnson completed his Massachusetts sentence and is not currently on parole or probation, the BBA argued that his liberty continues to be restrained by his requirement to register as a sex offender, and that his claim—and claims of all similarly-situated individuals—should therefore be allowed to proceed.


Although the Court did not reach this specific issue—“We leave for another day the question whether the liberty interests implicated by sex offender registration fall within the scope of chapter 278A”—it did agree that Chapter 278A should be construed broadly, ruling that Johnson’s incarceration for failing to register was sufficient to trigger his statutory right to DNA testing. The unanimous opinion, penned by Justice David Lowy, quotes two earlier SJC rulings in saying, “Given [the Legislature's] compelling interest in remedying wrongful convictions of factually innocent persons,” “it is entirely appropriate that we construe [278A], in a manner that is generous to the moving party,” and a “liberal reading … fully comports with the purpose of chapter 278A.”


The BBA views the decision as applying a more-inclusive reading of the statute, as the BBA argued for, and as the Legislature intended. Indeed, the Court’s rejection of the argument that Johnson’s claim was estopped when his initial pro se motion was denied, indicates that its broader interpretation of the statute applies not only substantively but also procedurally.

The BBA has a long history with this issue, stemming from a task force on wrongful convictions whose 2009 report proposed an early version of the bill that ultimately became Chapter 278A upon its 2012 enactment. The BBA brief cited that background in reasoning that to deny Johnson’s claim in this case would not only contradict the plain meaning of the statute’s “otherwise restrained” language but would also contradict the Legislature’s intent to facilitate access to DNA testing specifically to remedy wrongful convictions. Ruling against Johnson, the brief argued, would close the door on a broad set of potential claimants seeking to demonstrate their innocence—which Justice Lowy echoed at oral argument.


In a nod to that history, the decision cites the BBA’s 2011 legislative testimony, as delivered by current Amicus Committee co-chair Prof. David Siegel of New England Law | Boston, in support of the enactment of a post-conviction forensic-testing law.


“This decision advances the goal of facilitating access to justice,” said Erin Higgins of Conn Kavanaugh, co-chair of the BBA's Amicus Committee, “But it’s also a victory for the integrity of the criminal justice system, because it bolsters the public’s confidence in our ability to identify and undo wrongful convictions.”


The Johnson case represents the second time—following Commonwealth v. Wade ("Wade III")—that the BBA has urged the SJC to reverse the denial of a petition for forensic testing based on an overly restrictive reading of a threshold requirement in the statute. BBA President Jon Albano of Morgan Lewis said, “Both these cases demonstrate our determination to fight for the rights of defendants to correct errors in the justice system.”

The Boston Bar Association traces its origins to meetings convened by John Adams, who provided pro bono representation to the British soldiers prosecuted for the Boston Massacre and went on to become the nation’s second president. Its mission is to advance the highest standards of excellence for the legal profession, facilitate access to justice, serve the community at large and promote diversity and inclusion.