Every attorney at Wood & Nathanson is motivated to advance racial justice. It is a central focus of what we do. We thought we would take a moment to outline some of our work in this area.
One of the most dangerous intersections of race and the law is racist traffic stops. In 2017, Attorney Malm brought a sweeping challenge to police power to conduct pretextual traffic stops. That eventually helped bring about the 2020 decision in Commonwealth v. Long, making it much easier for defendants to prove that they were racially profiled. Attorney Wood was proud to help put together the amicus team on behalf of the Massachusetts Association of Criminal Defense Lawyers in Long. Read more here. Of course, racist traffic stops lead to disproportionate searches of vehicles. Attorney Wood helped author an amicus brief that convinced the SJC to limit impoundment and searches of the cars of arrested people.
Stop-and-frisk practices also disproportionately endanger people of color. We brought litigation limiting police’s power to stop and frisk to only those cases where the police have reasonable suspicion that someone is armed and dangerous. Similarly, Attorney Jellison brought a challenge to Boston Police’s power to pat frisk an African-American juvenile girl based primarily on her attempts to avoid contact with the police. The SJC had previously ruled that African-American men avoiding contact with the police was not evidence of guilt because it could easily be “to avoid the recurring indignity of being racially profiled.” The claim lost at the Appeals Court but Attorney Jellison is seeking review from the SJC, supported by civil rights organizations. Attorney Wood also helped assist with the MACDL brief in Commonwealth v. Evelyn, arguing that avoiding police contact in “high crime” areas is not justification for searching someone. (Mr. Evelyn was represented by Wood & Nathanson alumna Attorney Hayne Barnwell.)
Jury selection is another area where African-Americans are particular targets of discrimination. Attorney Nathanson recently filed a brief with the SJC arguing that the prosecutor should not have been allowed to strike five African-American jurors from a Boston jury just because there were already “enough” African-Americans on the jury. In one of Attorney Nathanson’s very first cases, he convinced the Appeals Court that the prosecutor discriminated against the sole African-American juror in a Norfolk County jury pool. The prosecutor claimed he struck her because she was a divinity student, but the strike was really based on her race. Prosecutors also use CORI checks on prospective jurors as a way of disproportionately excluding African-Americans from jury service. In 2010, Attorney Wood convinced the SJC to limit prosecutors’ power to engage in this practice. The prior year, Attorney Wood also developed a broad challenge to the underrepresentation of African-Americans on Norfolk County jury panels but was able to obtain his client’s release before the issue was finally litigated.
The school to prison pipeline is known to entrench and worsen racist outcomes for children of color. In a series of cases, Attorney Jellison convinced the SJC to keep children out of the juvenile justice system based on recent legislative changes requiring that “disturbing a school” be abolished and that a child’s first minor misdemeanor of any kind be dismissed. After that, Attorney Jellison convinced the SJC to keep prosecutors from circumventing these changes by charging multiple misdemeanors from the same incident and then claiming these protections no longer applied because it was not a “first” offense.
This is just some of the work that our attorneys have done to try to challenge racism within the criminal legal system. The work continues to this day. We welcome it and we will not stop fighting.