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FOR IMMEDIATE RELEASE: 7/7/2021

Contact: Richard M Page Jr.
BBA/BBF Executive Director
617-778-1916

SJC Ruling Clarifies Low Initial Bar To Access Post-Conviction Forensic Tests

Last week's ruling by the SJC in Commonwealth v. Jenks expands on a series of decisions by the Court in support of a low bar for accessing post-conviction forensic testing that could demonstrate a defendant's factual innocence, under a 2012 law championed by the Boston Bar Association (BBA) that created a faster and easier process.

In Jenks, the BBA had filed its third amicus brief on the statute (Chapter 278A of the M.G.L.), arguing that the intent of the law — as demonstrated by the legislative history and the 2009 BBA report that first proposed the underlying bill — was to create a low bar for applicants seeking an evidentiary hearing on the requested testing.

A lower-court judge had denied Jenks's motion at the first stage of the statutory two-part process, saying that he hadn't met what the SJC called "the modest threshold" to be entitled to a hearing (the second stage) — in particular, the requirement that he point to information demonstrating that the evidence at issue had not been subjected to the requested forensic analysis, either because the analysis had not yet been developed at the time of conviction, or because the trial attorney failed to seek the analysis but a reasonably effective attorney would have.

The SJC's unsigned 7-page opinion states, "We are of the view that Jenks has satisfied the low bar ... to be entitled to a hearing on his motions." In the Wade (2016) and Johnson (2019) cases, the BBA had previously filed briefs in support of defendants' claims, and the SJC similarly ruled in favor of their access to testing they said could prove their innocence.

"This decision will further strengthen the ability of Chapter 278A to provide an avenue for correcting any errors in our criminal-justice system," said Neil Austin of Foley Hoag LLP, co-chair of the BBA Amicus Committee and co-author of the brief, along with his Foley colleagues, Anthony Mirenda and Rachel Hutchinson, as well as John Weaver of McLane Middleton and Madison Bader of Lawson & Weitzen. "As the BBA brief notes, sometimes our system of justice gets it completely wrong, and the results of those errors are not only tragic, but also jeopardize public safety and undermine trust."

The brief had also urged the SJC to recognize, for purposes of applying the law, that science is constantly changing, taking that into account in assessing whether a proposed analysis to be sought — in this case, ballistic testing — is a material improvement over a previously conducted analysis. But the ruling side-stepped that issue.

A second SJC decision, in Commonwealth v. Donald, extends the trend of interpreting the statute to intentionally create a low threshold at the motion stage. There, the Court ruled that the appellant had preserved his right to an evidentiary hearing.

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 2020-2021 BBA Amicus Committee is co-chaired by Neil Austin and Maria Durant of Hogan Lovells.

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.