In a case where the client was charged with trafficking marijuana, the Commonwealth “nolle prossed” (dropped) all charges after Norman Zalkind and Emma Quinn-Judge prevailed on a key discovery motion.
Harvey Silverglate, of counsel to ZDB, published an opinion article in the Boston Globe on October 9, 2014, regarding the heartbreaking case of his client Bernard Baran. Baran, an openly gay man, was convicted of child rape in 1985. Jurors were never shown unedited videotapes of interviews with the children in which they initially denied that Baran had done anything wrong, before being subjected to suggestive and discredited interview techniques. Baran was freed after the tapes surfaced, having served 22 years in prison, but passed away on September 1 this year. Mr. Silverglate argues that the Commonwealth must now conduct a searching and public investigation into the question of whether the prosecutors at trial, one of whom is now a sitting judge, intentionally withheld the tapes from the defense. Mr. Silverglate’s piece can be read here.
In an October 4, 2014 piece for Forbes magazine Attorney Harvey Silverglate, of counsel to ZDB, discusses the history of the necessity defense in Massachusetts, including in his own practice, in light of an unusual recent case in which activists charged criminally for blocking a shipping channel to prevent the delivery of coal planned to raise the necessity defense in court, arguing that the threat of climate change justified their actions. The piece is available here. And in a second column, dated October 5, 2014, Mr. Silverglate criticizes the decision by federal judge George A. O’Toole, Jr. to deny accused Marathon bomber Dzhokhar Tsarnaev a change of venue for his trial, calling the decision “inexplicable . . . unless hubris is taken into consideration.” That article is available to read here.
David Russcol has filed an amicus brief in the Massachusetts Appeals Court on behalf of the Massachusetts Employment Lawyers Association. Writing in support of the plaintiff in Brown v. Office of the Commissioner of Probation, he argued that government employees who prove that they have been illegally discriminated or retaliated against should collect interest until their claims are paid, just like private employees. The defendants have suggested that they are exempt from paying interest, in which case there would be no consequences to the government for delaying payment. David Russcol wrote in the brief that, under the strong Massachusetts anti-discrimination law, government employers should be held to the same standard as private companies, not a lower standard.
On September 29, 2014, ZDB founding partner Norman S. Zalkind attended a retrospective on the 50-year anniversary of the Freedom Summer Project at the Multicultural Center at the University of Rhode Island (“URI”). Norman began his career after law school doing civil rights work in Mississippi before returning to Boston, where he founded the law firm that is now ZDB with the goal of emulating the rigorous trial work he had experienced trying criminal cases in the South. At the retrospective Norman was interviewed as part of a project to create a videotaped record of memories and reflections about Freedom Summer to be housed in the archives of the Carothers Library at URI, and was among the veterans of Freedom Summer honored at an evening banquet.
In September 2014, David Duncan and Zoraida Fernandez were successful in negotiating for their client, who was charged with conspiracy to distribute drugs as part of a multi-defendant federal indictment, to serve a state sentence on gun charges concurrently with his federal sentence. This resolution significantly lessened the total time that their client will have to serve. In addition, they were able to arrange for their client to serve the combined sentence at a federal medical center, rather than a state or federal prison, so that he could continue to receive necessary care for an injury.
All three of ZDB’s named partners have been selected by their peers for inclusion in the 21st edition of The Best Lawyers In America©. Norman Zalkind, who has been included in Best Lawyers for more than twenty consecutive years, is listed for white-collar and non-white-collar criminal defense. David Duncan is also listed for both white-collar and non-white-collar criminal defense, and Inga Bernstein is listed for criminal defense: non-white-collar and employment law—individuals. As we announced yesterday, Inga Bernstein has also been named Best Lawyers’ 2015 Boston Employment Law – Individuals “Lawyer of the Year.”
In July 2014, David Duncan and Norman Zalkind settled a personal injury case for $850,000.00. The client suffered three broken leg bones and a concussion in 2009 and was left with permanent scarring as a result of being hit by a hit-and-run driver while in a crosswalk. The client was able to save a friend from injury by pushing her out of harm’s way. ZDB filed suit in the Suffolk Superior Court against the driver responsible for these injuries and against the owner of the vehicle involved. The case settled during mediation.
On July 1, 2014, the Massachusetts Supreme Judicial Court granted an application for further appellate review from the decision of the Massachusetts Appeals Court in Commonwealth v. Wallace, which upheld the denial of the defendant’s motion to dismiss the charges against him on speedy trial grounds. Norman Zalkind and Ruth O’Meara-Costello represent the defendant, who is charged with first-degree murder, and argue on appeal that his rights were violated when the Commonwealth of Massachusetts waited more than five years to return him to Massachusetts for trial following his arrest.
On June 26, 2014, Inga Bernstein and Emma Quinn-Judge filed an application for leave to obtain further appellate review with the Massachusetts Supreme Judicial Court (“SJC”) from the decision of the Massachusetts Appeals Court in Kiely v. Teradyne. The cases raises two important questions concerning the application of the state antidiscrimination statute, G.L. c. 151B, and has significant implications for workers who seek to vindicate their rights to workplaces free of discrimination and retaliation.
First, is a plaintiff entitled to attorney’s fees under G.L. c. 151B, § 9, where a jury finds liability for discrimination or retaliation? The Appeals Court concluded that the statute requires a showing of “harm” or “actual damage or loss” before a plaintiff may recover fees and that a jury finding of discrimination or retaliation was not sufficient to show such harm. In her application for further appellate review, Kiely argues that the Appeals Court decision misreads the language of c. 151B and fundamentally undercuts the statute, by failing to recognize that discrimination and retaliation are inherently harmful, both to the individual and to the public at large.
Second, when is a plaintiff in a retaliation case entitled to punitive damages? The SJC articulated a new standard for punitive damages in discrimination cases in Haddad v. Wal-Mart Stores, Inc., 455 Mass. 91, 110 (2009), but no published decision has yet applied that standard to a retaliation case, and Kiely argues that the SJC should grant further appellate review to clarify how the Haddad standard should be modified when applied to a retaliation claim.
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