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Law360 (April 22, 2020, 2:31 PM EDT ) Defense groups suing to release inmates from Massachusetts prisons amid the COVID-19 pandemic are asking the state's high court to hold the state Department of Correction in contempt for defying a mandate to file detailed, daily reports on the virus's spread.
In a contempt complaint filed with the Supreme Judicial Court on Tuesday, the Committee for Public Counsel Service and the Massachusetts Association of Defense Lawyers say the agency took more than a week to file facility-specific data and then left out vital details such as the number of tests given and the number of people released.
While the DOC sent bare-bones filings to the defense groups and court-appointed special master, Brien T. O'Connor of Ropes & Gray, it gave fleshed-out facility breakdowns to local media, including an NPR affiliate whose reporter published the numbers in a Twitter post — much to the surprise of the defense groups.
"The undersigned counsel should not have to go on Twitter to find out what is really happening inside the DOC," the groups wrote in their complaint.
In addition to the contempt finding, the defense groups have asked the court to order the DOC to file the required data dating back to its April 3 order, to continue to provide it going forward and any other relief the court sees fit.
The complaint is the latest indication that frustrations are boiling over among the defense groups, who have objected to a slow-moving process they see as being hampered by the same public officials who are under the court's direction to thin out the state's jail population.
On April 8 — days after the Supreme Judicial Court expanded pretrial release amid what it called an "urgent and unprecedented" public health crisis — CPCS top lawyer Anthony Benedetti wrote a letter updating 3,500 defense attorneys to shortcomings on the part of the DOC and the state's sheriffs.
"While we have achieved some great success, obstacles and roadblocks continue to make the job of getting our clients out from behind the walls much too difficult," Benedetti wrote.
"The sheriffs and the DOC are required to provide us with lists of all individuals who are being held pretrial," he added. "The lists should provide us with the information necessary to identify attorneys and argue for release. Many have fallen short."
Benedetti said the groups then took the complaints to O'Connor. In their current complaint, the groups said the DOC only started reporting the meager facility-specific numbers on April 13 after the special master "flagged this error" for the agency.
CPCS and MACDL filed the emergency petition with the SJC in late March, seeking to release inmates from the state's jails and prisons "to mitigate the mortal harm that the COVID-19 pandemic will inflict upon incarcerated people." The court heard arguments in the case on March 31, and days later ordered that many pretrial detainees be granted a presumption of release. The order also called for a daily regimen of data reporting by the parties in the case, including the DOC.
The scant information in the DOC's daily reports was one pillar of the defense groups' motion last week for the SJC to reconsider parts of its April 3 decision. Calling the agency's filing failures "roadblocks," the groups told the court they have to "undertake substantial efforts just to get the DOC to report as much information to the special master as it does to the media."
According to the special master's most recent weekly report, the sheriffs have reported the total inmate population; the number of tests given to inmates, correctional officers, and other staff; and the number of confirmed COVID-19 cases among those same three groups. The sheriff's county jail data goes back to April 5.
Meanwhile, the department's report provides only the number of confirmed cases of COVID-19 for inmates and staff at each facility. Its data only goes back to April 13.
Representatives for the parties were not immediately available for comment.
The petitioners are represented by Rebecca Jacobstein, Benjamin H. Keehn, Rebecca Kiley and David Rangaviz of the Committee for Public Counsel Services; Matthew R. Segal, Jessie J. Rossman, Laura K. McCready and Kristin M. Mulvey of the ACLU Foundation of Massachusetts Inc.; Chauncey B. Wood and Victoria Kelleher of the Massachusetts Association of Criminal Defense Lawyers.
The Department of Correction is represented in-house by Charles W. Anderson Jr.
The case is Committee for Public Counsel Services et al. v. Chief Justice of the Trial Court et al., case number SJC-12926, in the Supreme Judicial Court of Massachusetts.
--Editing by Gemma Horowitz.
For a reprint of this article, please contact reprints@law360.com.
