Boston Bar Association Praises SJC Ruling Defending Access to Justice and Attorney-Client Privilege

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.