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Bostonbarjournaljanuary/February 2008 a Publication of the Boston Bar Association BostonBarJournalJanuary/February 2008 A Publication of the Boston Bar Association CollegeCollege andand UniversityUniversity LiabilityLiability ForFor StudentStudent DeathsDeaths andand InjuriesInjuries Impatient Millionaires: The Lottery Session in the Superior Court Massachusetts Guide to Evidence: Preliminary Reflections Impatient Millionaires: The Lottery Session in the Superior Court In-House Lawyers’ Bar Status: “Counsel, You’re Not in Kansas Anymore” MassachusettsInvoluntary Client Guide Relationships to Evidence: Preliminary Reflections In-HouseDePeiza: SJCLawyers’ Affirms Bar Terry Status: Stop “Counsel,Based on Police You’re Training Not in Kansasand Experience Anymore” Forming Involuntary Client Relationships DePeiza: SJC Affirms Terry Stop Based on Police Training and Experience Federal Prosecutors and Advancement of Legal Defense Fees FormingRepresenting Involuntary Victims ofClient Domestic Relationships Violence Under M.G.L. Chapter 209A Federal Prosecutors and Advancement of Legal Defense Fees Pro Bono Report: Representing Victims of Domestic Violence GROW YOUR 401(k) WISELY Six things you won’t hear from other 401(k) providers... We were created as a not-for-profit 1. entity, and we exist to provide a benefit We leverage the buying power of the 2. ABA to eliminate firm expenses and minimize participant expenses Our fiduciary tools help you manage 3. your liabilities and save valuable time Our investment menu has three tiers to 4. provide options for any type of investor, and our average expense is well below the industry average for mutual funds We eliminated commissions, which erode 5. your savings, by eliminating brokers We have benefit relationships with 28 6. state bar and 3 national legal associations.* LEARN HOW No other provider has more than one. YOU CAN GROW YOUR * Alabama State Bar Hawaii State Bar Association The Mississippi Bar Oklahoma Bar Association State Bar of Arizona Illinois State Bar Association State Bar of Nevada Rhode Island Bar Association Arkansas Bar Association Indiana State Bar Association New Hampshire Bar Association State Bar of Texas 401(k) WISELY Colorado Bar Association Kansas Bar Association State Bar of New Mexico Vermont Bar Association Connecticut Bar Association Louisiana State Bar Association New York State Bar Association Washington State Bar Association The District of Columbia Bar Maine State Bar Association North Carolina Bar Association State Bar of Wisconsin State Bar of Georgia Minnesota State Bar Association State Bar Association of North Dakota Association of Legal Call an ABA Retirement Ohio State Bar Association Administrators (ALA) Funds Consultant at 1-877-947-2272 www.abaretirement.com For a copy of the Prospectus with more complete information, including charges and expenses associated with the Program, or to speak to a Program consultant, call 1-877-947-2272, or visit www.abaretirement.com or write ABA Retirement Funds P.O. Box 5142 • Boston, MA 02206-5142 • [email protected]. Be sure to read the Prospectus carefully before you invest or send money. 11/2007 Boston Bar Journal Volume 52, Number January/February 2008 Contents President’s Page 2 Officers of the Boston Bar Association President, Anthony M. Doniger BBJ Editorial Policy 3 President-Elect, Kathy B. Weinman Vice President, John J. Regan Departments Treasurer, John H. Chu Secretary, Deborah S. Birnbach Voice of the Judiciary 4 Impatient Millionaires — The Lottery Session in the Superior Court Members of the Council By Paul A. Chernoff Mark M. Christopher Damon P. Hart Grace H. Lee R.J. Cinquegrana Brent L. Henry James D. Masterman Heads Up 6 Lisa M. Cukier Christine Hughes Samuel B. Moskowitz Massachusetts Guide to Evidence: Paul T. Dacier Julia Huston Rebecca B. Ransom Preliminary Reflections Laurie Flynn Sandra L. Jesse Vivian Tseng Lawrence M. Friedman Kimberly Y. Jones Charles E. Walker, Jr. By James J. Marcellino and Randolph M. Gioia Robert H. Kelley Mark J. Warner Kristin D. Casavant Lisa C. Goodheart Nina J. Kimball The Profession 8 Past Presidents In-House Lawyers’ Bar Status: Edward J. Barshak Joseph L. Kociubes John A. Perkins “Counsel, You’re Not in Kansas Joseph W. Bartlett Renée M. Landers Rudolph F. Pierce Anymore” John G. Brooks Edward P. Leibensperger Joel M. Reck By J. Charles Mokriski R.J. Cinquegrana William F. Looney, Jr. Richard W. Renehan John J. Curtin, Jr. Joan A. Lukey Lauren Stiller Rikleen Case Focus 11 Gene D. Dahmen Hon. James P. Lynch, Jr. Mary K. Ryan John P. Driscoll, Jr. Hon. Sandra L. Lynch Richard A. Soden DePeiza: SJC AffirmsTerry Stop Thomas E. Dwyer, Jr. James J. Marcellino Raymond H. Young Based on Police Training and Hugh R. Jones, Jr. Hon. Margaret H. Marshall Experience Michael B. Keating Edward I. Masterman By Michael Pelgro Boston Bar Journal Board of Editors Bonnie Sashin, Editor Matthew C. Baltay Practice Tips 12 Aaron J. K. Ostrow, Associate Editor Manisha H. Bhatt Forming Involuntary Client Catherine F. Meeks, Cover Design Hon. Thomas Billings Relationships Madeleine Blake Lisa S. Burton By Paul Tremblay The Boston Bar Journal is published five times a year by Andrew L. Cohen the Boston Bar Association at 16 Beacon Street, Boston, Michael A. Collora Massachusetts 02108. Tel. (617) 742-0615. Articles Legal Analysis 14 Hon. William I. Cowin from the members of the Boston Bar Association are Hon. Judith Fabricant Federal Prosecutors and encouraged. Mail all correspondence to the Boston Bar Donald R. Frederico (Chair) Journal, 16 Beacon Street, Boston, MA 02108. Visit the Advancement of Legal Defense Hon. Mark V. Green Boston Bar Association at www.bostonbar.org. Articles Fees: Don’t Ask, Don’t Tell Joseph Halpern appearing in the Boston Bar Journal represent the Martin R. Healy By John J. Falvey, Jr. and views of their authors and do not necessarily carry the J. Allen Holland endorsement of the Association. Janet E. Taylor Kimberly Y. Jones ©2008 Boston Bar Association. Elizabeth Eunjoo Kim All rights reserved. Legal Analysis 18 Andrea Studley Knowles Paul G. Lannon, Jr. College and University Liability for Advertising inquiries: Hon. Peter M. Lauriat Student Deaths and Injuries Call (617) 778-1958. Michael K. Loucks By Daryl J. Lapp and John Loughnane Martha Ann Mazzone Mark R. Vernazza David A. McKay Mark F. Murphy Pro Bono Report 22 Timothy M. Murphy Representing Victims of Domestic Regina S. Rockefeller Violence Under M.G.L. Chapter 209A Hon. Janet L. Sanders Vivian Tseng By Lisa M. Hodes BBA Update 23 BBF News 28 Boston Bar Journal • January/February 2008 President’s Page By Anthony Doniger Alternative Justice he Boston Bar Association has long existence. The court offers a GED program, a housing been on the front bench in the resource center, job training, substance abuse treatment and Tdebates about sentencing reform. other social services. Community service is often a large For over two decades we have encour- component of the sentences meted out there. Lest you think aged discussions about the strengths and this is just a liberal panacea, be assured that sentences in such weaknesses of the Commonwealth’s community courts often are tougher with respect to low-level criminal justice system, especially with crime, and the counseling/treatment alternatives usually last respect to sentencing reform and prisoner far, far longer than the time spent serving the applicable jail re-entry. We have called for the repeal of sentence. mandatory sentencing laws – particularly the harsh and ineffective drug mandatory Here is a true and quite typical story from Red Hook: a minimums. We have also encouraged the woman in her late 40s is arrested on a misdemeanor charge of establishment of an effective system of intermediate sanctions drug possession. She has had 74 prior arrests, almost all for in lieu of incarceration for nonviolent offenders, including low-level crimes related to her three decade-long drug providing improved parole options for nonviolent drug addiction. The current offense carries a maximum 90-day jail offenders to transition eligible candidates into the community sentence, and handled traditionally, she probably would serve and to save our overwhelmed prison resources for the violent no more than 30 days. Instead, she is sentenced to a detox and offenders who pose a real threat to society. rehabilitation program and to six months of intensive outpa- tient drug treatment. She successfully completes her mandate What we have not talked enough about, but should, are and is clean and sober for the first time in her adult life. She alternative approaches to dealing with non-violent offenders, gets a job with the assistance of employment counselors, and particularly in misdemeanor or low-level felony cases, that holds it. serve these same interests. The traditional response to such offenses is either a short-term jail sentence or “time served.” In addition to broad community justice models, there are Imagine, however, a court that could craft meaningful short- other more limited alternatives sometimes called problem- term sentences as an alternative to jail or no jail. How about solving justice programs that are offered within traditional sentencing such a defendant to a group counseling program court systems. For example, in response to studies showing for defendants with substance abuse problems; to a health that persons with mental illness are significantly overrepre- education program for prostitutes or johns; to individual sented in jails and prisons, the “mental health court” has counseling for defendants with mental
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