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BBA Brief Fights for DNA Testing and Attorney-Client Privilege

December 03, 2015

We are pleased to be able to once again report on the great work of the BBA’s Amicus Committee.  In the last few months alone they have helped achieve access to justice for abused youths, worked to secure a right to counsel in parental guardianship actions, opposed improper attorney sanctions, and defended race-conscious college admissions policies as a means to assuring a more diverse bar.  And in the latest example of their tireless efforts, last week we filed a brief in the case of Commonwealth v. Wade (SJC-11913), urging the Supreme Judicial Court (SJC) to correctly interpret the Commonwealth’s new post-conviction DNA testing law and defending attorney client privilege.  This case holds particular importance for the BBA as we have a long history of protecting attorney client privilege and were also instrumental in drafting and advocating for the DNA testing law at issue here.

The case first came to our attention over the summer and our interest only intensified when the SJC requested amicus briefs in late October asking:

Whether, in order to obtain postconviction DNA testing under G. L. c. 278A and specifically, in order to support a finding under c. 278A, § 7 (b) (3), that the evidence or biological material has not been subjected to the requested analysis for any of the reasons in [c. 278A, § (3) (b) (5) (i)-(v)] it is sufficient for the defendant to establish that the requested analysis had not yet been developed at the time of the conviction, see c. 278A, § 3 (b) (5) (i), or whether the defendant must also show that a reasonably effective attorney would have in fact sought the analysis had it been available.

After extensive discussions in our Amicus Committee and Council, we couldn’t be happier with the resulting brief drafted by a team of lawyers from K&L Gates, LLP.  Former BBA Council Member and Chair of the BBA Drug Lab Crisis Task Force, Mike Ricciuti led the team, which also consisted of Kathleen Parker and Patrick McCooe.

The brief makes two major points – that the lower court judge erred in interpreting the requirements of G.L. c. 278A and, in doing so, erroneously forced counsel for the defendant to violate attorney-client privilege.  The BBA has a particular interest in Chapter 278A because it is a product of our advocacy, stemming back to our Task Force to Prevent Wrongful Convictions, whose 2009 report, Getting it Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts, included a draft law nearly identical to what was eventually enacted in 2012.  The purpose of the law, as best articulated in that report, is to “remedy the injustice of wrongful convictions of factually innocent persons by allowing access to analyses of biological material with newer forensic and scientific techniques.”

Subsection 3(b)(5) of the law allows for new forensic testing if a defendant can show, inter alia, that the evidence has not already been subjected to the requested analysis.  It sets out five reasons why it would be justifiable for the requested analysis not to have been pursued, such that it should be pursued now.  These prongs are identical to the recommendation contained in Getting It Right, except that the report recommends putting “or” after every clause, whereas the enacted text uses semicolons and then puts “or” before the last prong. The significance of the fact that both approaches emphasize the disjunctive nature of the list of prongs will become evident shortly.

(i) the requested analysis had not yet been developed at the time of the conviction;

(ii) the results of the requested analysis were not admissible in the courts of the Commonwealth at the time of the conviction;

(iii) the moving party and the moving party’s attorney were not aware of and did not have reason to be aware of the existence of the evidence or biological material at the time of the underlying case and conviction;

(iv) the moving party’s attorney in the underlying case was aware at the time of the conviction of the existence of the evidence or biological material, the results of the requested analysis were admissible as evidence in courts of the Commonwealth, a reasonably effective attorney would have sought the analysis and either the moving party’s attorney failed to seek the analysis or the judge denied the request; or

(v) the evidence or biological material was otherwise unavailable at the time of the conviction.


In 2014, the defendant sought DNA testing pursuant to c. 278A in an attempt to overturn his conviction, arguing, under the first prong, that the DNA testing he then requested had not been performed in 1997 because it had not yet been developed.  He also initially made an argument, under the fourth prong, that a reasonably effective attorney would have sought the analysis.  The judge, however, ruled that the statute required the defendant to show the “actual reason” that no DNA testing was requested in 1997, even though the test being requested was not then available.  In order to determine the “actual reason,” the judge, over objection, compelled the testimony of the defendant’s trial attorney. The defendant had not waived attorney-client privilege or submitted any affidavit from his trial attorney, but the Commonwealth argued that any time a movant pleads that his trial attorney was not reasonably effective, he has waived attorney/client privilege as to all communications with trial counsel.

The defendant sought interlocutory relief from this decision, and, in a G.L. c. 211,§ 3, memorandum, SJC Chief Justice Gants held that the Commonwealth could subpoena the trial attorney but his testimony would be limited by attorney-client privilege and any waiver by the defendant.  At the hearing, when the Commonwealth began questioning the trial attorney about privileged communications, the defendant waived the “reasonably effective” prong, insisting that he could still meet the statutory requirements on the unavailability of the requested DNA analysis at the time of his conviction, under the first prong.

The defendant argued that the Commonwealth was asking the trial attorney about privileged communications, which the defendant had not waived, and that abandoning the “reasonably effective” prong obviated the need for his testimony.  The motion judge disagreed, finding that the defendant had waived his attorney-client privilege.  Although the trial attorney repeatedly refused to answer the Commonwealth’s questions, citing privilege, he eventually relented under the threat of contempt by the court.

The motion judge ultimately concluded that it had been a strategic decision not to request DNA testing at the time of trial.  The motion judge rejected the defendant’s argument that, to get testing he need only show that the analysis was not performed at the time of his conviction “for any” of the five alternative reasons under G.L. c. 278A, § 3(b)(5).

BBA Amicus Brief

Our amicus brief argues that the judge misinterpreted Chapter 278A.  Once the defendant demonstrated that the requested analysis had not yet been developed at the time of conviction, he satisfied the requirements of § 3(b)(5) and did not need to support any other prong of the test.  The use of “or” in the list of prongs demonstrates that the Legislature intended a defendant need only identify one reason the testing had not yet been done.  The statute contains no requirement that the defendant must show a “primary cause” or “actual reason” why DNA testing was not conducted at the time of trial.  Furthermore, the brief argues that the judge misunderstood § 3(b)(5)(iv): The test is not to determine why the defendant’s attorney did not seek a different type of DNA testing at the time of trial, but rather, whether a reasonably effective attorney could have sought the requested analysis.  Here, a reasonably effective attorney could not have sought the requested analysis because the requested analysis did not exist at the time of the conviction.

The brief also argues that the trial judge’s erroneous focus on the “primary cause” that DNA testing was not pursued at trial resulted in the “deeply flawed conclusion” that the defendant had waived attorney-client privilege.  The brief makes clear that there was no express or implied waiver of the privilege and the trial judge’s interpretation threatens to undermine the effectiveness of Chapter 278A, which calls for an objective test of what a reasonably effective counsel could have done, and not a subjective analysis of what trial counsel actually did.  If the statute were to be interpreted as the trial judge espouses, with both the “primary cause” and subjective analyses, it would frustrate the purpose of the law and chill access to justice, potentially denying wrongfully-convicted individuals a pathway to establishing their innocence.

The case is scheduled for standby oral argument on Thursday, December 10.  If it is not heard that day, it will be argued on Monday, January 11th.  We look forward to watching the broadcast and reading the decision in the coming months and will, as always, keep you updated on how the case is decided.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association