BBA Files an Amicus Brief in Defense of Post-conviction Access to Forensic Testing

In keeping with its long-standing commitment to facilitating access to justice and upholding the integrity of the criminal-justice system, the Boston Bar Association (BBA) has filed an amicus brief arguing that an individual who maintains his innocence should be allowed to seek forensic testing to help prove his claim of innocence, even after serving his sentence, where his liberty continues to be restrained by his duty to register as a sex offender.

The law at issue in this case-known as Chapter 278A-originated from a 2009 BBA Task Force report that served as the genesis for its eventual enactment in 2012.

That report, Getting It Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts , offered a variety of recommendations to reduce the likelihood of wrongful convictions and thereby improve public safety, including a post-conviction procedure by which people could pursue forensic testing on evidence involved in their case, such as DNA.

Chapter 278A limits who has standing to request such testing, to someone who “has been convicted of a criminal offense in a court of the commonwealth [and] is incarcerated … is on parole or probation or whose liberty has been otherwise restrained as the result of a conviction.”

In the case of Commonwealth v. Johnson (SJC-12673 ), scheduled to be argued on May 9th before the Massachusetts Supreme Judicial Court (SJC), the defendant completed his Massachusetts sentence and is not on parole or probation. But the BBA’s brief argues, citing analogous recent SJC rulings, that his liberty is otherwise restrained where his registration requirements create affirmative burdens that are tantamount to the conditions placed on probationers and parolees, with the same potential of immediate arrest and incarceration for failure to comply.

The brief, written by Meredith Shih of Wood & Nathanson, LLP , states that Johnson is exactly the type of defendant the Legislature had in mind when it included the language “otherwise restrained”, and that if the SJC, the state’s highest court, were to rule against Johnson on that ground, an entire class of potential applicants would see their efforts to overturn their wrongful convictions foreclosed, against the purpose and spirit of the statute.

“Such an outcome would have damaging consequences not only for access to justice in all those cases,” said Shih, “but also for public faith in the justice system’s ability to identify and undo wrongful convictions.”

This is not the first time that the BBA has weighed in with an amicus (or “friend of the court”) brief on Chapter 278A. In Commonwealth v. Wade (“Wade III”), the BBA again argued-ultimately successfully-on behalf of a defendant whose petition for forensic testing had been denied based on an overly restrictive reading of a separate threshold requirement in the statute. Erin Higgins of Conn Kavanaugh , co-chair of the BBA’s Amicus Committee, said, “Both these cases demonstrate our steadfast adherence to the principle of access to justice and our interest in rectifying wrongful convictions.”

A ruling in the case is expected by August.

For more information on this, please read the “Issue Spot” blog.

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 2018-2019 Amicus Committee is co-chaired by Professor David Siegel of New England Law | Boston and Erin Higgins of Conn Kavanaugh.