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.
