A Boston Bar Association task force today released a report that promises to
have a significant impact on criminal justice policy and practice in
Massachusetts – reducing the risk of wrongful convictions, boosting convictions
of those who commit crimes, and reducing the need for hearings to suppress
evidence. Getting
It Right, Improving the Accuracy and Reliability of the Criminal Justice System
in Massachusetts, is the work product of a 20 person BBA task
force comprising the broadest group of major players in the criminal justice
system ever assembled to prevent wrongful convictions in the Bay State. The task
force was co-chaired by Martin F. Murphy, a partner at Foley Hoag and David
Meier, a partner at Todd & Weld, and appointed by then BBA President Kathy
Weinman in the fall of 2008.
“We began with the premise that for every defendant wrongly convicted, a
criminal goes free, and society remains at risk while the individual who has
escaped the consequences of his actions is free to commit crimes against other
victims,” said Murphy. “We took a broad and systematic approach to improving the
criminal justice system, and professionals at both ends of the criminal justice
spectrum have all come to agree that the reforms we are recommending need to be
implemented.”
Underscoring the fact that opportunities for fumbles abound at every step of
the criminal justice process, the report contains recommendations for police
officers, prosecutors, forensics professionals, and defense attorneys. The
report raises the prospect of the perfect storm in which a variety of things can
go wrong – starting with the witness identification process, and ending
with a defense attorney’s failure to obtain exculpatory evidence.
The report makes three key recommendations:
(1) Enactment of a Massachusetts statute to guarantee post conviction
access to DNA testing and to require preservation of biologic forensic evidence.
(Massachusetts is one of only 4 states that does not have such a statute, and
given the role DNA testing has played in exoneration of innocent but wrongly
convicted people, the report says this is critical.)
(2) Expanding the membership and function of the state’s Forensic
Science Advisory Board to include scientists and lawyers who are not prosecutors
would put Massachusetts ahead of the curve nationally. (The report cites a 2008
study by the National Academy of Sciences raising serious questions about the
scientific foundation of significant portions of forensic evidence admitted in
courts.)
(3) Videotaping confessions. (Based on a 2004 decision of the Supreme
Judicial Court most police departments are now recording confessions of
suspects. The number of departments who are doing videotapes rather than just
audiotapes is still in the minority. But the experience of those departments who
are videotaping demonstrates that the evidence obtained is more effective
because there is absolutely no doubt about what is happening, and there is
nothing more powerful in a courtroom than a videotaped confession.)
“We believe most of our recommendations are very low cost, or are more about
changing and following through on policies than things that require new
equipment or larger numbers of police officers or anything along those lines,”
said Meier. “Although there are pockets of excellence in Massachusetts with
regard to particular policies and practices, both public safety and justice
require that we get it right across the board.”
Members of the BBA Task Force on Preventing Wrongful Convictions
Hon. Christopher J. Armstrong, Dwyer & Collora, former Chief Justice,
Massachusetts Appeals Court
Allison D. Burroughs, Partner, Nutter, McClennen
& Fish
Denise Jefferson Casper, Deputy District Attorney, Middlesex
County
Jennifer L. Chunias, Partner, Goodwin Procter; Trustee, New England
Innocence Project
James M. Connolly, Major, Massachusetts State Police
Edward F. Davis, Commissioner, Boston Police Department
Shannon L.
Frison, Frison Law Firm
William H. Kettlewell, Dwyer & Collora
Randy
Gioia, Law Office of Randy Gioia
William J. Leahy, Chief Counsel, Committee
for Public Counsel Services
Elizabeth A. Lunt, Partner, Zalkind, Rodriguez,
Lunt & Duncan
Gregory J. Massing, General Counsel, Executive Office of
Public Safety
Mary Kate McGilvray, Acting Director, Massachusetts State Crime
Laboratory (Ret.)
David E. Meier, Partner, Todd & Weld; Trustee, New
England Innocence Project
Robert M. Merner, Deputy Superintendent, Boston
Police Department
Martin F. Murphy, Partner, Foley Hoag
Sejal H. Patel,
Law Office of Sejal H. Patel
Joseph F. Savage, Jr., Partner, Goodwin Procter,
Chairman, New England Innocence Project
David M. Siegel, Professor, New
England Law | Boston; Trustee, New England Innocence Project
Joshua I. Wall,
First Assistant District Attorney, Suffolk County
Publication of Getting
It Right, Improving the Accuracy and Reliability of the Criminal Justice System
in Massachusetts was made possible through a grant from the John A.
Perkins Fund of the Boston Bar Foundation, and will be distributed to criminal
justice professionals throughout Massachusetts.