You may recall that we used this space last month to cover a new amicus brief filed at the Supreme Judicial Court (SJC) by the BBA in the case of Commonwealth v. Johnson, 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, 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..
The SJC held oral argument in the case on May 9, and from the start, the justices were interested in the question of what the Legislature could have meant in choosing the “otherwise restrained” language, putting that to counsel for both sides. It didn’t take long for them to zero in on the arguments in the BBA’s brief, which they cited repeatedly from the bench.
But the BBA mentions didn’t stop there. The justices had clearly done their homework, as several them drilled down into the BBA task-force report on wrongful convictions and even a Boston Bar Journal (BBJ) article on Chapter 278A—both of which were cited in our brief.
That 2009 task-force report was ultimately the catalyst for the Legislature’s 2012 enactment of Chapter 278A. The report, Getting It Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts, made four sets of recommendations aimed at reducing the number of wrongful convictions in the Commonwealth—including proposed language for a new law to create the framework for individuals to assert their claims for access to forensic evidence, such as DNA, associated with the case that led to their convictions.
It appeared that the justices were interested in the BBA report inasmuch as the language it suggested—“Any person who has been convicted of a criminal offense in a court of the commonwealth, and is in custody or whose liberty is restrained as the result of that conviction”—could offer guidance in interpreting the language the Legislature later approved.
They also noted that the BBJ article presciently foresaw that this very issue would one day be before the SJC:
Arguably eligibility to file a motion under chapter 278A would also extend to those whose liberty is restricted by being required to register as a sex offender. See Doe v. Sex Offender Registry Bd., 447 Mass.768, 775 (2006) (“In the context of sex offender registration, an offender’s liberty and privacy interests are constitutionally protected, and deprivation of these interests generally requires procedural due process.”).
One final point made from the bench at argument, and one that echoes a core conclusion of the BBA’s task-force report, is that testing forensic evidence even after conviction is critical to maintaining the integrity of entire system of justice—not only because it helps correct, and even prevent, a wrongful conviction, but also because it allows law enforcement to continue to pursue the actual perpetrator.
The video of the Johnson argument can now be viewed on-line. We are expecting a decision from the Court by the end of summer and will of course update you when it arrives.
—Michael Avitzur
Government Relations Director
Boston Bar Association
