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On April 13, 2018, Governor Baker signed a law overhauling many aspects of the Massachusetts criminal justice system. My colleague Naomi Shatz recently covered the ways that the bill made pretrial diversion available to more defendants, and introduced a new program of diversion through restorative justice. Both of those programs, if successfully completed, allow defendants to move forward without a record of conviction, or even without a record of arraignment.

The reform legislation also takes several steps to expand the ability of defendants to turn the page on prior criminal cases by sealing or expunging their prior records. Although these provisions will not become effective until October, at that point they will have far-reaching effects for many individuals. I previously addressed the pre-reform state of the law a few years ago for this blog. As things stand until the new law takes effect, a defendant must wait 5 years after a conviction of a misdemeanor before being able to seal his or her record, 10 years for a felony, and 15 years for sex offenses that can be sealed. Non-convictions (such as dismissals after a continuance without a finding) can be sealed either after those waiting periods, or by petitioning a judge to seal the record sooner. Continue reading

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On Friday, Governor Baker signed a sweeping criminal justice reform bill into law, and because it contained an emergency preamble it went into effect upon signing. The law makes significant changes to defendants’ ability to get a pre-arraignment diversion — a way to resolve a case without any criminal record.Criminal-Justice-Reform-Act

Under the old law (Mass. G.L.c. 276A), a defendant could obtain a pre-arraignment diversion if she met all of the following criteria, set forth in section 2 of the law:

  • The case was one where a prison sentence was possible and the district court had final jurisdiction;
  • Was between ages 18-22 or was a military veteran;
  • Had not previously been convicted of any crime;
  • Did not have outstanding warrants or criminal cases in any court;
  • Received a recommendation from a program that she would benefit from the program.

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Pre-Arraignment-DismissalOn March 22, a decision by the Massachusetts Appeals Court made a small but significant change in the authority of District Court and Boston Municipal Court judges to screen out criminal charges that may have been improperly issued or legally flawed. In Commonwealth v. Moore, the Appeals Court held that these judges cannot decide a motion to dismiss a complaint for lack of probable cause before a defendant is arraigned – that is, before a defendant formally faces the charges and pleads guilty or not guilty. This decision has the potential to substantially increase the number of people in Massachusetts with criminal records, many of whom may face adverse consequences from employers or others. This result will waste judicial resources and is contrary to the goals of the criminal justice reform bill that just passed the Legislature. It should be addressed promptly by the Legislature and/or reversed by the Supreme Judicial Court.

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In this series, I look at some of the protections afforded by Title IX that have not gotten as much attention in the media or political arena as have Title IX’s applications to equity in athletics and campus sexual assault. Part 1 looked at Title IX’s protection against employment discrimination. Part 2 examined how Title IX protects students from non-sexual sex-based harassment. Part 3 looked at Title IX and dress codes.Title-IX-and-Religious-Schools

Title IX is a federal law that prohibits schools that accept federal funding from discriminating on the basis of sex. As I’ve discussed in previous pieces, this includes discrimination in providing athletic opportunities, failing to properly address sexual harassment and sexual assault, gender-based harassment and bullying, and dress codes. It is generally understood that Title IX applies in all public schools, from kindergarten through graduate programs, and also applies to most private colleges because of their participation in federal financial aid programs. But courts have held that Title IX may also apply to private (including parochial) elementary and high schools. Conversely, there are private colleges and universities that have taken steps to ensure that Title IX does not apply to them. It is important for any students or parents dealing with discrimination issues at school to understand whether Title IX may protect them. Continue reading

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Massachusetts-Appeals-Court-Wage-Act-Decision

It’s not as easy as it used to be to answer the question of who’s the boss.  Many employees survive on a patchwork of part-time jobs; the gig economy is growing fast enough to double in the next few years.  Indeed, a recent study released by  Upwork and the Freelancers Union predicts that most workers will be freelancers by the years 2020.  As facts in the workplace evolve, so must the law.

That’s exactly what happened last fall in  Gallagher v. Chambers, a case decided by the Massachusetts Appeals Court.  There, the Court clarified the test for identifying an employer under the Massachusetts Wage Act.  Previously, courts had applied a common-law set of factors that led to inconsistent results in lower courts, which in some cases dismissed corporate defendants even though those entities benefitted from a plaintiff’s work.  In Gallagher, a home health aide sued to recover for unpaid overtime wages.  She named as defendants both her former customer – who had overseen her work on a daily basis – and the agency that had helped her find the placement and processed her paychecks.  That raised the question of whether both were really her “employers” for purposes of the Wage Act.   The Appeals Court took the opportunity to refine the rule for answering that question.

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SJC-Sick-Time-Wage-Act

On January 29, the Supreme Judicial Court in Mui v. Massachusetts Port Authority held that accrued but unused sick pay is not subject to the state Wage Act, even if the employer has agreed to pay out some or all of the sick pay when an employee separates from employment. While the result may make sense on the facts of this case, and is generally consistent with the way the Wage Act is currently drafted, the Court’s decision sweeps more broadly than it needs to. It removes a powerful incentive for employers to promptly pay compensation that is due to some employees at the end of their employment.

In Mui, MassPort (the agency responsible for Logan Airport, among other things) began the process of discharging the plaintiff, a longtime employee, after he made an apparent suicide attempt that caused property damage. Before that process completed, Mui retired from MassPort, and an arbitrator later decided that MassPort could not fire him because he had already retired. MassPort had a policy of paying a portion of accrued but unused sick time to employees upon their departure, unless they were discharged for cause. MassPort at least initially refused to give Mui his sick pay (which amounted to about $47,000) because it claimed he had been discharged for cause. Continue reading

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SJC-Victim-Sentencing-Recommendations

In the recently decided Commonwealth v. McGonagle, the Supreme Judicial Court considered whether a Massachusetts statute that allows victims of crimes to recommend a sentence violates (1) the Eighth Amendment to the U.S. Constitution and Article 26 of the Massachusetts Declaration of Rights (particularly in light of the U.S. Supreme Court’s recent decision in Bosse v. Oklahoma, 137 S. Ct.  1 (2016)); and (2) the defendant’s due process rights. The SJC concluded that consideration of a victim’s sentence recommendation in a non-capital case does not violate either the federal or Massachusetts constitutions. While victims’ accounts regarding the effect of the crime provide relevant information for a sentencing judge, allowing victims to make a specific sentence recommendation seems unfairly prejudicial to the defendant and irrelevant, and the SJC’s reasoning in this case does not go far enough in addressing these concerns.

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Supreme-Court-Sixth-Amendment

Robert McCoy was convicted of murdering his estranged wife’s mother, stepfather and son by a Louisiana jury, and condemned to die.  He is currently before the United States Supreme Court (McCoy v. Louisiana, No. 16-8255), which will shortly hear argument on whether his rights under the Sixth Amendment were violated when his attorney, in his opening at the trial, conceded that McCoy had committed the murders.  The attorney did so over McCoy’s strenuous and repeated objections, made to the lawyer and to the judge before trial.

While there is a subsidiary issue of effective assistance of counsel, there is no question that the attorney made a considered strategic decision that making the concession was the best chance to spare McCoy the death penalty.  The primary issue is whether this decision was the lawyer’s to make, or whether it was exclusively the client’s to make. Continue reading

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University-Duty-of-Care

In news that might seem unsurprising to both lawyers and non-lawyers alike, on December 28 a judge in the Superior Court held that Endicott College was not liable for a student who got extremely drunk at a dorm party, and then assaulted three fellow students, leaving two with broken facial bones. After serving part of his four-year sentence for the assault and being paroled, the student brought suit against the college alleging that the college’s negligence caused his actions. The student argued that the college was liable in negligence for his actions under three theories: (1) social host liability (which applies to those who negligently serve alcohol to someone who later injures someone as a result of being intoxicated); (2) that the college had a “special relationship” with the student that imposed a duty of care to protect the student; and (3) that the school was negligent in supervising the student and preventing him from harming himself. The judge, assessing whether the college owed some duty of care to the student, determined that “No Massachusetts case . . .  has ever determined that a special relationship exists between a college or university or its officials and its students that would impose a duty to protect students from the voluntary use of drugs or alcohol.”

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Protecting-Families-Through-Evidentiary-Privilege

In addition to the many other changes contained in the criminal justice bills that have recently passed the Massachusetts House and Senate, criminal justice reform in the Commonwealth could include one additional significant change in the laws of evidence. The Senate’s bill includes a provision that would disqualify a parent from testifying against a minor child in most criminal cases. The effect would be to make parent/child communications generally legally private, much like confidential discussions between married people. As a lawyer who works often with families—and as a parent—I believe very strongly that this provision works a necessary change in the law and hope that the conference committee now working to create a uniform bill will include it. Continue reading

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