2012 • Massachusetts Lawyers Weekly • January 21, 2013 Lawyers of the Year 2012 Publisher’s...

B2 • Massachusetts Lawyers Weekly • January 21, 2013 Lawyers of the Year 2012

Publisher’s Note

Dear readers:

Please join me in congratulating Massachusetts Lawyers Weekly’s 2012Lawyers of the Year. In this special section, we celebrate the varied accom-plishments that led to their selection.

Some of the honorees were chosen for their work in the criminal arena.John H. Cunha Jr. and Charles W. Rankin secured the acquittal of criminaldefendants in high-profile cases. Robert F. Shaw Jr. successfully argued that a

first-degree murder conviction should be over-turned because a rap video was introduced at thedefendant’s trial. And Brien T. O’Connor delivereda knock-out blow in a federal fraud trial, persuad-ing the government to drop all felony charges andaccept a misdemeanor plea.

Two prosecutors were also named Lawyers ofthe Year. Assistant District Attorney Ashlee N.Logan successfully prosecuted the first homicidecase in conjunction with a new state law pro-hibiting texting while driving, while Assistant

U.S. Attorney Barbara Healy Smith took on a case that involved a 30-year-old murder on foreign soil, a university research project and testimonyfrom former members of the Irish Republican Army.

Other honorees were chosen for their accomplishments on the civil side.Frank P. Porcelli and William F. Lee scored big patent wins, while Frances S.Cohen successfully argued that the state must pay for sex reassignment sur-gery for convicted murderer Michelle Kosilek. Robert P. Powers took a casethat could have dramatically expanded social-host liability in Massachusettsto the Supreme Judicial Court. And Thomas J. Frain persuaded the AppealsCourt that a regulation barring individuals with IQs over 70 from qualifyingfor disability benefits was invalid.

The accomplishments of these deserving individuals are explored furtherin this special section.

Susan A. Bocamazo, Esq., Publisher, Massachusetts Lawyers Weekly

Frances S. Cohen . . . . . . . . . B3

John H. Cunha Jr. . . . . . . . . B4

Thomas J. Frain . . . . . . . . . . B5

William F. Lee . . . . . . . . . . . . B6

Ashlee N. Logan . . . . . . . . . . B7

Brien T. O’Connor . . . . . . . . B8

Frank P. Porcelli . . . . . . . . . . B9

Robert P. Powers . . . . . . . . B10

Charles W. Rankin . . . . . . . B12

Robert F. Shaw Jr. . . . . . . . B13

Barbara Healy Smith . . . . . B14

PHOTOS BY MERRILL SHEA

2012

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aking a break from her securities litigation andenforcement practice, Boston attorney Frances S.Cohen achieved a significant victory in a constitu-tional law case in 2012, obtaining a federal court or-

der requiring prison officials to provide an inmate with sexreassignment surgery.

“I had no prior experience with transgendered individ-uals and just looked at it as a case where a prisoner was notgetting any medical treatment for a condition,” Cohen says.

Typically in such cases, an inmate disagrees with the de-cision of prison doctors that treatment isn’t necessary.

“This case, I felt from the beginning, was different,” Cohensays. “[The plaintiff] wanted exactly the medical care theprison doctors were recommending. But the Department ofCorrection wouldn’t give it to her because they do not ap-prove of the diagnosis and have a bias against the treatment.”

Over the two decades of litigation — Cohen has been in-volved for 12 of those years — “there was never a dull mo-ment,” she says. The commissioner of the Department ofCorrection told U.S. District Court Judge Mark L. Wolf thatshe would resign before complying with a judicial order togrant the surgery. An expert for the DOC also advised thepope on issues relating to sexual assignment, Cohen says.

At the center of it all: Michelle Kosilek, formerly known asRobert, who is serving a life term for murdering her wife in adomestic dispute and suffers from gender identity disorder.

“Michelle is a model prisoner,” Cohen says, noting thather client had the highest-paying job in the prison, knownas a “houseboy,” with a significant level of responsibility. Butshe resigned and took a lower-paying job because the de-partment refused to change her title to “housegirl.”

“Initially, folks were skeptical about her,” Cohen says. “But sheis somebody who is willing to struggle to get what she needs.”

Q.What were the legal issues involved in the case? A. Our legal argument was that the Department of Cor-rection is violating the Eighth Amendment prohibition oncruel and unusual punishment by refusing to pay forMichelle’s sexual reassignment surgery. The DOC tried acouple of arguments. First, they said they didn’t quarrel withthe diagnosis but that Michelle is doing fine and doesn’tneed surgery. The second argument is that it would raisesecurity concerns to allow her this kind of transition. Theycannot argue about cost because it is not, constitutionally,a criterion for denying relief.

Q.Were you surprised by the public reaction to the decision? A. The almost unanimous public opinion against [the de-cision] has been the hardest challenge. This is a very diffi-cult diagnosis, and it is very difficult to understand the treat-ment. In recent years people have become moreunderstanding about the spectrum of gender identifica-tion, and my hope is that the decision will help other pris-oners. At its worst, inmates with gender identity disorderare self-castrating.

Q.What kind of impact do you think the case will have? A. It is important that mental conditions be given the samekind of treatment and attention as physical conditions. Psy-chiatry has come a long way in recognizing that mentalconditions require certain treatment; the courts and theprisons have to catch up, and this is an important case inthat regard. This decision is about parity for mental condi-tions to get the same kind of treatment as physical.

Q.Where does the case stand now in terms of your client get-ting the surgery? A. We have a fee petition pending in the District Court; feesare virtually obligatory for a prevailing party. Our fee claimis about $800,000, but we offered to waive all of our fees ifthe Department of Correction would agree to give her therelief she is asking for. Their response was “no.” The gov-ernment has said they plan to appeal and will not acceptthe decision. It is very frustrating because Michelle feels likeher access to surgery is very fragile. We are really hopingthings will work out on appeal.

— CORREY E. STEPHENSON

Lawyers of the Year 2012 January 21, 2013 • Massachusetts Lawyers Weekly • B3

T

FRANCES S. COHENBingham MCCutchen


n one of the most heart-wrenching murder cases inrecent Boston history, a Suffolk Superior Court jurystunned a packed courtroom in March 2012 by ac-quitting one of two defendants implicated in a drug-

related armed robbery that ended in the death of four, in-cluding a mother and her 2-year-old son.

Boston defense lawyer John H. Cunha Jr. — with his part-ner, Helen Holcomb, at his side — represented EdwardWashington, the accused getaway driver in the September2010 tragedy dubbed the “Mattapan Massacre.” Washing-ton and co-defendant Dwayne Moore faced murder andnumerous other charges in the slayings, which prosecutorssaid occurred during a drug robbery.

The key witness in the highly publicized trial was Ed-ward’s cousin, Kimani Washington, a career criminal whotestified that he went with the two co-defendants to rob adrug dealer. The lone survivor of the attack, Marcus Hurd,testified against Edward Washington from the wheelchairhe requires after being paralyzed in the attack by a bulletto the head. Hurd corroborated much of Kimani Wash-ington’s account of the incident, though he was unable toidentify the gunmen.

In the end, Cunha cut through the palpable emotion thathad taken hold of the courtroom and impelled the jury toconcede that there was simply not enough evidence to con-vict Edward Washington on any of the nine charges that hefaced, including four counts of first-degree murder.

Q. How do you rein in juror emotion, which in a case as trag-ic and graphic as this one could easily sway jurors towardconviction simply to remedy the horror of the crime? A. It’s a twofold answer. First, you must acknowledge andrecognize the horror, because you can’t hide it. You have toconfront it. But then, remind them, as often as you can, toadhere to their oath. Jurors are extremely conscientious.They know they’ve taken a sacred oath. You have to remindthem that their job is not easy.

Q. Did you have any hesitation about employing a strategyof turning the jurors against their authority figures by por-traying police and prosecutors as, at the very least, overzeal-ous in their pursuit of the perpetrators?A. I didn’t hesitate for a second. I agree that the Zeitgeist ofthe moment, on TV and elsewhere, favors the police. I call itthe “Dirty Harry” phenomenon: You have to believe themno matter what, because in the end they’re doing the rightthing. But their witness fed them a lie that was beyond be-lief. He admitted he planned the whole thing, then claimedhe just left, despite striking evidence to the contrary. I wasfully confident that the jury would see that he was mislead-ing the police and that they didn’t take the appropriate stepsto find out whether they were being led by the nose.

Q. What was the dynamic between you and co-defendantDwayne Moore’s attorney, John Amabile?A. John is a tremendous lawyer, and it was made easier be-cause we trusted each other. But it was a subtle interaction;if we had gone after each other, it could have altered the fo-cus and made it easier to convict, yet our interests didn’t al-together coincide. We had to determine where our inter-ests lined up and where we had to divert.

Q. Do you feel the case was fairly portrayed in the media?A. On the whole, yes, though it could have more accurate-ly set out the ample evidence which belied Kimani Wash-ington’s story. Instead, the government’s claim that he leftthe scene before the shootings was parroted without con-sideration as to whether the evidence supported it.

Q.What was the toughest part of trying the case?A.Addressing and overcoming the strong human desire toconvict arising from the horrific nature of the crimes.

Q. Was there one piece of evidence or testimony that swungthe jury in your favor?A. Yes. The jury completely rejected Kimani Washington.There was no physical or forensic evidence that tied Ed-ward Washington to this crime. [Kimani Washington’s tes-timony] was beyond belief.

— MATT YAS

JOHN H. CUNHA JR. Cunha & Holcomb

I

dvocating on behalf of a 45-year-old developmen-tally disabled woman whose IQ was one point

above the cut-off score for eligibility, Thomas J.Frain overturned a state regulation last July that

denied benefits to those with an IQ over 70. The regulation was invalid, the Appeals Court ruled, be-

cause it did not cite any authority to support its rule, as re-quired by statute.

Frain’s client in the case, Paula Tartarini, was raised by asingle mother, now in her 70s, who worries about herdaughter’s future. “Paula would fail miserably on her own.She wouldn’t even get through the day if it weren’t for hermother,” Frain says.

The victory holds special meaning for the Bolton lawyer,who grew up with a developmentally disabled brother.

Q. How significant is the Appeals Court ruling?A. It’s a very important issue for the least of our brethren.These folks have no voice of their own. Until 2006, a 70 IQwas not a cut-off. In 2006, the Superior Court held thatsomeone with an 83 IQ was still eligible. The reaction wasto drastically cut back that regulation, so those with 70 orabove weren’t eligible, even though it’s not accepted on aclinical or medical basis. It was purely to stop people fromgetting in the door.

Q. What happens now?A. We’ve urged them to adopt the rule prior to 2006 basedon the [recommendations of the American Association onIntellectual and Developmental Disabilities], which saysyou also have to look at a person’s adaptive functioning. Dothey appreciate dangerous situations? Can they cook? Dressthemselves? The court has ordered a full review of myclient’s case and I’m hoping they award her services.

Q. What was your biggest challenge?A. When you see injustice and disabled people suffering,and a hard-working, do-the-right-thing mom who is suf-fering and worrying, you become very close to the peopleand you don’t want to lose. This was a very important caseto win, not just for my client but for everybody. The biggestchallenge was fearing I might lose, especially once I got tothe Appeals Court. Justice is a hard thing to get in any cir-cumstance. But it’s really sweet when it comes.

Q. How does your own experience inform your work?A. I have a brother a year younger than me who is men-tally retarded and lives in a state-operated group home.My mother is 80 and still visits him every other day. Myfamily situation is similar [to Tartarini’s]. My father passedaway when I was 22, and my mother worked full time asa nurse, trying to manage the family and keep him safe.Once an intellectually disabled person turns 22, federalspecial education laws no longer apply and you’re left withstate services, which are drastically different and ap-pallingly worse. People fall out of the federal safety netand each family is left on its own to apply for services. Ourfamily spent years of trial and error not knowing what toask for. When I had just gotten out of law school and wasliving at home, I heard my mother on the phone while mybrother was suffering in pain. He has a seizure disorderand the person at the group home refused to take him tothe ER. That angered me.

Q.Do you handle other cases in this area?A. Since 1995, I have been heavily involved on a pro bonobasis with the nonprofit COFAR, a statewide advocacygroup for intellectually disabled people. I’m presidentnow, but I’ve never stopped volunteering. This is a pas-sion of mine.

— SYLVIA HSIEH


A

THOMAS J. FRAINThomas J. Frain Law Office


s the world watched the high-profile Apple Inc. v.Samsung Electronics Co. smartphone patent law-

suit play out on the West Coast last summer, somemight have been surprised to learn that legal tal-

ent from Boston was co-representing Silicon Valley’s Apple. WilmerHale partner William F. Lee was a leading mem-

ber of the plaintiff ’s legal team, which succeeded in per-suading the jury to find that Samsung owed Apple $1.05billion.

Lee is no stranger to big-time cases, but Applewas a stand-out for the sheer mountain of news stories, commentariesand Tweets it yielded.

On the surface, the issue sounded straightforwardenough: Apple accused Samsung of ripping off its iPhonedesign. But in reality, the tech giants, and others, have beenmired in a swamp of suits and countersuits as they devel-op and introduce complex, revolutionary products in a fast-changing global marketplace.

The Apple-Samsung war wasn’t confined to the onecourtroom in San Jose, Calif. Lee says the two companieswere already slugging it out in 40 court battles across theglobe, with WilmerHale handling part of that load as wellas co-representing Apple in the suit last August.

Q.Why so many lawsuits for these products?A. This really is the result of what I would call “conver-gence of technology.” You have computer technology andwireless cellular technology converging, so you have dif-ferent people with different patent portfolios coming to-gether. And the litigation, in fact, is staking out their re-spective market positions. … You wouldn’t have 40 casesworldwide if it was just about a single patent or a singleproduct.

Q.What makes these cases so complex?A. This is more about the smartphone marketplace andhow the intellectual property, which is held by the respec-tive parties, is going to shake out. It’s very complicated be-cause of the number of patents involved; it’s very compli-cated because of the number of products involved. And theinterest of the press made it particularly challenging.

Q.Was the level of media scrutiny a new experience for you?A. I’ve done a number of cases that had a lot of publicityaround them. I was on the Iran-Contra special prosecutor’stask force for a year and half, and I would say there was asmuch interest in that as anything I’ve ever done. But I thinkbecause of the existence of social media today, the Internet,this was a case where there was more public attention, morepublic dissemination of what occurred during the case, andmore commentary on the case than any case I’ve been apart of. …And what it meant was [that] anything you said,anything you did, would be trending on Twitter before youcould get back to your seat.

Q. Some of the trade publications made last summer’s trialsound almost circus-like, with the judge scolding attorneysand a lot of dramatic tension. Do you agree with that depic-tion, or do you think it got overblown?A. I don’t think it was a circus. It was a very challenging jurytrial in which the emotions and tensions ran high, but thejudge did a very good job of managing the case. The lawyerson the other side, I thought, were terrific lawyers, and it wasa real professional battle of a really important case. That’sthe way you want it to be.

Q.How did you initially get the case?A. Probably about 10 years ago I gave a speech at a judi-cial conference, and there was a lawyer from Apple therewho asked to sit down and talk to me. … We do a tremen-dous amount of work in this area for Silicon Valley clients.So, Intel [Corp.], Apple, Cisco [Systems], Broadcom[Corp.], Oracle are all really large clients of the firm, togive you an idea.

— LAURA SCHREIER

WILLIAM F. LEEWilmerHale

A

wo winters ago, 17-year old Aaron Deveau senta text message while he was driving in Haver-

hill. His car veered into the opposite lane and col-lided with another vehicle, resulting in the death

of a 55-year-old grandfather. The man’s companion sur-vived the crash with injuries.

Deveau would be the first person in Massachusetts to becharged with motor vehicle homicide in conjunction witha new state law prohibiting texting while driving.

Last summer, Essex County Assistant District AttorneyAshlee N. Logan tried the case before a District Courtjury that found Deveau guilty on charges of vehicularhomicide, texting while driving and negligent operationof a motor vehicle. He was sentenced by Judge Stephen S.Abany to two and a half years in prison, with one year tobe served and the balance suspended. Deveau also losthis driver’s license for 15 years.

Logan has spent the past seven years as a prosecutor inEssex County DA Jonathan W. Blodgett’s office.

Q.When did you realize that this case would garner nationalattention?A. We knew that it had local attention because of how newthe statute was. Besides the motor vehicle homicide charge,the defendant was also tried under the new statute re-garding damage to property or persons due to mobilephone use while driving. We didn’t know how far reach-ing [the media coverage would be] until midway throughthe trial.

Q.How were the records of the defendant’s cell phone use in-troduced as evidence? A. There were a few different ways that we presented it. Thestatute itself requires the phone use to be the proximatecause of the damage. We had records of both phone callsand text messaging. We introduced the actual 911 recordsas well as an officer who was familiar with the 911 systemand testified as to how it works. So we could limit the gapbetween when the last text message was sent, which was at2:35, and when the first 911 call was made, which was at2:36.

Q. Of course, you then had to show that the defendant hadbeen driving the entire time.A. We had that information from his statement, in which hehad said he received his last text at 2:33 and stated where hehad received it. We were able to show the time it would take forhim to travel to where the crash took place. His attention wasfocused on his cell phone at the time that the crash began.

Q. The defendant initially claimed that the accident was not theresult of his texting, but due to the fact that he was swerving toavoid another vehicle. How did you disprove that theory?A. We had a state police officer from the reconstructionunit who investigated the car’s positioning and whetherthere was any mechanical failure. He did an investigationinto the marks from the road. He formed the opinion thatthe defendant was drifting over the roadway and that theentire car was in the opposite lane of travel. The wheels ofthe defendant’s car were not turned. [The defendant’s claim]was inconsistent with what the wheels on his tires wereshowing. That was important in proving the second chargerelating to mobile phone use.

Q. Have you received inquiries from other prosecutors look-ing to try similar cases?A. Yes, I have received calls from other prosecutors re-garding both the attention of the media and how I prose-cuted [the case], and there have been similar prosecutionsin other states.

— NOAH SCHAFFER


T

ASHLEE N. LOGANEssex County District Attorney’s Office


ew criminal defense lawyers ever give an openingstatement that delivers a knockout blow. ButBoston attorney Brien T. O’Connor did exactly that

in a high-profile federal fraud case last year.O’Connor and his Ropes & Gray colleague Joshua S. Levy de-

fended Hopkinton-based medical device manufacturer Stryk-er Biotech against charges that the company and three of its salesexecutives defrauded surgeons into combining Calstrux, a bone-void filler, with OP-1, a bone morphogenic, for an off-label usethat the Food and Drug Administration never approved.

The company faced massive fines and exclusion fromfederal health programs, while the sales execs — representedby attorneys from three other Boston firms — were look-ing at the possibility of serious prison time.

However, the defense team realized during discovery thatthe government never interviewed seven surgeons who al-legedly had been victimized. The team sought and receivedthe cooperation of the surgeons, who were prepared to tes-tify that the defendants never deceived them in any way.

O’Connor revealed that fact to the jury in his openingstatement. And before the government finished the directexamination of its first witness, it dropped all charges againstthe individual defendants and all felony charges againstStryker, accepting a guilty plea to a no-intent misdemeanorcharge and a $15 million fine.

Though the government was criticized in the media forthe outcome, O’Connor, a former federal prosecutor him-self, says he has nothing but respect for the prosecutors whohandled the case.

“We give the government a lot of credit for respondingvery professionally and very immediately to some of thevery significant points we made in our opening statement,”he says. “The government made a very difficult and coura-geous decision to take a misdemeanor from the companyand let the executives go.”

Q. How did you get the surgeons to cooperate? After all, ifthey used the mixture with bad results, wouldn’t it be in theirinterest to maintain that the product was fraudulently mar-keted to them?A. With some of them it was very difficult. Part of that is theydidn’t know us. They’re very busy on significant patient healthissues. Though it was hard, we were persistent and followed up.All told, we were very impressed with their willingness to talkto us because, in some respects, that’s an act of courage andrecognition that a trial is a search for the truth and we all haveto play a role in the process to get the right result.

Q. If the surgeons weren’t defrauded, how did they know todo the mixing to get the anticipated results without promo-tion from the company?A. That’s a really good question, and we worked hard in theopening [to address that]. …We displayed scientific articlesclearly demonstrating that surgeons had been mixing bone-void fillers with active bone-healing and bone-forming agents[for years]. … The government’s main concern was that onneither the Calstrux nor OP-1 label was there any approvalfor the use of the two together. But the government broughtserious felony charges requiring the government to prove notjust off-label promotion but fraud beyond a reasonable doubt.It’s on that point that we focused our defense efforts.

Q.More broadly, the Department of Justice has been engagedin an intense effort over the past few years to crack down onthe promotion of off-label uses of drugs and devices. Howmight a case like this impact that kind of campaign?A. I hope a lesson from this case is that there’s a big differ-ence between fraudulent conduct and misdemeanor off-label promotion. The rules [regarding] off-label promotionare very complex and difficult to follow. And I think thegovernment does need to be careful not to overcharge. …Additionally, these surgeons are the meal ticket for sales-people. If they don’t have the trust and confidence of sur-geons, they’re done in the medical community because sur-geons talk to each other. So proving the company was tryingto deceive is a huge undertaking.

— ERIC BERKMAN

BRIEN T. O’CONNORRopes & Gray

F

n patent law, there’s patent infringement, and thenthere’s willful, reckless patent infringement, which iswhat the vast majority of plaintiffs claim. And if aninfringer is found to be willful, the defendant can face

treble damages. The willfulness charge “changes the whole picture,” says

Frank P. Porcelli, a partner at Boston’s Fish & Richard-son who helped score a major victory in the far-reach-ing Bard Peripheral Vascular, Inc., et al. v. W.L. Gore &Associates case in 2012.

Before the decision last June by the U.S. Circuit Court ofAppeals for the Federal Circuit, the “reckless” test could bedecided entirely by a jury. In Bard, the court vacated a $371million verdict against Porcelli’s client, W.L. Gore & Asso-ciates, ruling that judges, not juries, should decide whetheran infringer is objectively reckless.

The decision marks the first time the Federal Circuit in-terpreted a two-prong test laid out by the U.S. SupremeCourt in its seminal 2007 In re Seagate Technology ruling.Under the test, the plaintiff must present evidence that adefendant’s conduct was objectively reckless, and thendemonstrate that the infringer subjectively knew its actionswere reckless.

Q. Why shouldn’t the entire reckless test be left to a jury todecide? A. The fear is that a jury, having found that somebody in-fringed, almost assumes that they did it willfully or delib-erately, and they don’t appreciate that there’s more to it thanthat under the law; that you’re not a willful infringer justbecause you’re an infringer.

Q. So what role does the jury play now? A. The decision by the Federal Circuit in June of 2012 ba-sically said, “Look, if you have a reasonable defense, thatmeans you were not objectively reckless when you decid-ed to go ahead [with the infringement].” So the focus be-comes not what your view was, or your mental state, butsimply taking an objective look at whatever defense you re-lied on, and was it reasonable that you relied on it? … Sothat is what the judge does. The subjective part is: If you areobjectively reckless, if your defense wasn’t reasonable, didyou know that? Or should you have known that when youwent ahead? And that’s what the jury should be deciding,and the only thing they should be deciding.

Q.How did you make that argument?A. There were other bodies of law that treated [this ques-tion] in the same way we wanted patent law to be treated,which was: objective for the court, subjective for the jury.This Seagate test didn’t come out of thin air when the Fed-eral Circuit adopted it. … Those other cases talk about whena suit is brought in bad faith or not. Was your bringing ofthe suit objectively reasonable? And if it wasn’t, did youknow that when you brought it? Exactly the same method-ology. So we said, “Wait a minute, [Seagate] came from thatlaw, and in most cases they certainly show that the firstprong is not a question for the jury but a question for thecourt.” So that’s what we had to rely on in large part.

Q.How does this case rank in terms of your career highlights?A. Well, I really like to do the interesting appeals. Eithersomething is big at stake in terms of dollars — and this wasbig in terms of dollars — but more importantly, it was bigin terms of legal issues. This case really affects every singlepatent infringement case where there’s a willful infringe-ment charge, which is virtually every one.

— LAURA SCHREIER


I

FRANK P. PORCELLIFish & Richardson


hen Robert P. Powers was enlisted to de-fend a civil suit against Jessica Simpson, a

19-year-old who had hosted a party while herfather was away, the Boston lawyer knew he

had a tough case on his hands. An underage guest at the party consumed liquor he had

brought himself, left with a 16-year-old passenger, andcrashed his car into a utility pole. The passenger, plaintiffRachel Juliano, was seriously injured and sued Simpson andher father under a social-host liability theory.

The biggest challenge, Powers says, “was the fact that it’sreally hard to disagree with the proposition that underagedrinking is not acceptable.”

But the Melick & Porter attorney also knew that if Ju-liano prevailed, it would represent a major expansion of so-cial-host liability in Massachusetts. Such liability has tradi-tionally applied when the defendant serves the alcohol ormakes it available to others. In this case, however, Simpsonprovided no liquor; just the party venue.

The Supreme Judicial Court ultimately decided in Ju-liano, et al. v. Simpson, et al. that neither underage hosts northeir parents should be held liable in those situations.

“If mere control of premises gave rise to a duty of carefor social hosts, the difficulties facing judges and jurieswould be manifold,” Justice Fernande R.V. Duffly wrote forthe court. Justice Margot G. Botsford suggested in a con-currence that the Legislature amend the social-host liabil-ity law to cover such situations, but Powers believes thatwould be unwise.

“A statute that would subject a homeowner like [Simp-son’s father] would be wrong,” Powers says. “[It’s] just notgoing to eliminate the immaturities of youth.”

Q.How do you respond to critics who say as long as a party is“BYOB,” Juliano creates a safe haven for underage drinking? A. It’s a mistake to think that way. Would a judicial decisionthat impacts their parents’ insurance companies really changeyoung adult thinking? I don’t think so. Why not instead trysomething similar to what they’ve done with cell phones?My son is 16 and applying for his driver’s license, and they’remaking it quite clear that using a cell phone while drivingwill cost you your license. Why not impose a loss-of-licensepenalty on underage individuals who host drinking partiesfor their friends? That’s something a young adult can relateto and would be a more meaningful deterrent.

Q. Why shouldn’t Simpson and her father be considered li-able under a straight negligence theory? She gave minors aplace to drink, creating a foreseeable risk that someone wouldget drunk, drive and cause an accident.A. There have to be practical limits to liability, and it’s thecourts’ responsibility to draw those lines. Positing that there’sno line and everyone should get their chance in front of ajury ignores the toll that litigation takes on people and theirfamilies and ignores the fact [that] this process, on an in-dividual case-by-case level, does little or nothing to elimi-nate the scourge of underage drinking.

Q.A case is pending involving an underage tailgater killed inan accident after a concert at Gillette Stadium. Should a high-er standard of care apply to stadium operators and other so-phisticated commercial entities when giving people a place toconsume their own alcohol?A. That’s a tragic case. A girl died and there’s a natural urgeto want a remedy. But you need to be careful about the con-sequences of leaving [the Juliano] precedent behind in fa-vor of broader duties. …I’m reluctant to comment on a casethat’s not mine, but if you say a landlord who permits park-ing has a duty to supervise tailgating activities, what do yousay to … all the academic institutions when people come?I think control over the liquor supply still provides a prac-tical limit.

— ERIC T. BERKMAN

ROBERT P. POWERSMelick & Porter

W

Melick & Porter, LLP proudly congratulates our

colleague and Managing Partner

ROBERT P. POWERS

for his recognition as one of the

“Lawyers of the Year 2012” by

Massachusetts Lawyers Weekly

www.melicklaw.com

BOSTON, MA | PROVIDENCE, RI | TRUMBULL, CT | PORTSMOUTH, NH

http://www.melicklaw.com/


n many ways, Scott Campbell was the forgotten co-defendant in Commonwealth v. Cahill, et al., one ofthe state’s biggest public corruption trials in recenthistory.

Indicted alongside former Treasurer Timothy P. Cahill,Campbell was charged with conspiring with his ex-boss tospend $1.5 million of the Lottery’s advertising budget overan eight-week span in 2010 during Cahill’s run for governor.

While most of the publicity focused on Cahill, Camp-bell’s lawyer, Charles W. Rankin of Boston, stole the showduring closings when he delivered a powerful argumentthat paved the way for a Dec. 11 acquittal.

The verdict followed a month-long trial and more than25 hours of deliberations. Meanwhile, a mistrial was declaredin the Cahill case after jurors failed to reach a verdict.

Q.You’re credited with hitting a home run with your closing.When you sat down, did you know you had nailed it?A. The first thing that was on my mind was, “Please God,don’t let me cry.” Then the second thing was, “Oh no, Ididn’t say this, that or the other thing.” Until the jury cameback, I was haunted by the shortcomings I perceived inthe closing.

Q. Give me an example of something you wish you hadsaid?A. The judge decided in her jury instructions that sheagreed with our idea of the law surrounding similarly sit-uated individuals. That was an important legal ruling thatI wanted to discuss in the closing, but I didn’t want to dealin legal niceties because I felt like there was a more practi-cal, human theory of defense available. That’s one of thethings I kind of obsessed over. Fortunately, I can stop beat-ing myself up now. I was trying to highlight a theme of mydefense that Scott Campbell was merely an aide to Mr.Cahill. The reality is that Scott was a minor player in thiscase. At the same time, I tried to suggest to the jury thatthere was no crime committed.

Q.How different would things have been if Cahill’s case hadbeen severed from Campbell’s?A. There’s always a balance that goes on to present a defensethat’s going to distinguish your client from the co-defendant.You also don’t want to do something that’s going to needlesslyharm or provoke some reaction from the co-defendant.

Q.Why not?A. Rarely does a circular firing squad work out well for ei-ther defendant. If defendants start attacking each other orblaming the other for the commission of a crime, you es-sentially have two prosecutors, and that enables the gov-ernment to just sit back and watch the fireworks.

Q. In your closing, you made a comparison between Presi-dent Obama’s trip to New Jersey after Hurricane Sandy andthe Cahill case. How are the two related?A. Incumbents have an inherent advantage in a campaignbecause they have media access more readily than a non-incumbent. No one criticized — or should criticize — thepresident for going to New Jersey, because there were cer-tainly legitimate reasons to do it, just as there were legiti-mate reasons for the Lottery to run ads touting the bene-fits that went to cities and towns.

Q.What concerns did you have about Cahill testifying? A. I believed Cahill wouldn’t consciously do anything tohurt Campbell, but I just held my breath. You really just holdyour breath.

Q.Was this the longest jury deliberation of your career?A. No. I had a jury out for 17 days in the Charlestown Codeof Silence case before they came back.

— DAVID FRANK

CHARLES W. RANKINRankin & Sultan

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rap video shouldn’t tip the scales when a man is ontrial for murder. That’s what Robert F. Shaw Jr.’s in-

ner sense of justice told him. And that’s why the45-year-old Cambridge attorney was so grati-

fied when he succeeded in convincing the Supreme Judi-cial Court to overturn the first-degree murder convictionof Lamory Gray last November.

Prosecutors had convinced a jury that Gray was amember of the Heath Street gang and had gunned down18-year-old Herman Taylor on a Roxbury street in 2006,thinking he was member of a rival gang. To fill in theholes in the evidence, prosecutors found a way to intro-duce a rap video replete with words and images glorify-ing street violence. Gray happened to appear in the videodressed in “gangsta” garb.

But now Gray will have a new trial thanks to the effortsof Shaw, who convinced the SJC to conclude in Common-wealth v. Gray that “lyrics such as ‘forty-four by my side,’ ac-companied by images of stereotypical ‘gangsta thugs,’ …could not but have had a prejudicial impact on the jury.”

Q. You started your career litigating cases for Fortune 500clients. What made you turn to the less lucrative and oftenthankless field of criminal defense?A. The simple answer is that criminal law is where my heartis. Quite frankly, I credit my mother, Elaine Frederick, forinstilling a deep sense of justice in me.

Q.The state’s case seemed rather weak given the lack of reli-able evidence identifying Gray as the perpetrator. What wasthe prosecution’s theory of the case?A. The government pursued this as a gang killing, utilizingthe notion of gang rivalry and gang membership as a proxyto tell the jury that Lamory Gray had the motive and intentto kill. That’s what is so troubling about these kinds of cas-es — how the government utilizes assertions of gang mem-bership and gang rivalry to buttress cases and make asser-tions about motive and intent when its evidence otherwiselacks that foundation.

Q.Why was getting the rap video evidence introduced at tri-al so crucial for the prosecution?A. The rap video evidence was simply one way for the gov-ernment to convey that label of “gang member.” You canimagine how significant that is when the government cansay that this individual has the motive and intent to killbased upon what is fundamentally basic association.

Q. Do you believe it is impossible for a jury to look at rapvideo evidence objectively and draw from it specific indica-tors of the participant’s intent or predisposition?A. The problem is that, in Lamory Gray’s community, thatmusic is not unusual. And it is not intimidating to peopleor scary to people. If you have a jury that is drawn from dif-ferent cross-sections of the community that doesn’t havefamiliarity with that music, they may draw inferencesagainst Lamory Gray based on that music video. The prob-lem is that those inferences won’t be grounded in commonsense and experience. They will be grounded primarily inthe cultural differences that make the inferences seem jus-tified. We do not want determinations of guilt turning onthe differences in cultural and community experience.

Q. How did you react when you heard that the SJC had over-turned Gray’s conviction? A. I was enormously relieved and humbled because, in myview, the decision is an example of the system working. Itmakes the work so meaningful. It was a very special expe-rience.

— PAT MURPHY

ROBERT F. SHAW JR.Law Offices of Robert F. Shaw Jr.

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t’s not every day that an attorney gets a case involv-ing international law, a murder investigation on for-eign soil, former members of the Irish RepublicanArmy, and a university research project. In re: Re-

quest from the U.K. had all those elements when it landedon Assistant U.S. Attorney Barbara Healy Smith’s desk.

Two Boston College researchers brought an action to quashDepartment of Justice subpoenas against the school seekinginterview recordings of former members of the IRA. The gov-ernment wanted to turn the recordings over to Northern Ire-land police officials investigating the abduction and killing ofa Belfast woman in 1972, pursuant to a mutual legal assistancetreaty between the United States and the United Kingdom.

“This was very unusual,” Smith says, noting that the re-searchers challenging the subpoenas “were two private indi-viduals who were not the custodians of the documents, sothey weren’t the recipients of the subpoenas. They weren’tparties in the mutual assistance treaty. [But] they tried to blockthe process and keep the documents from being turned over.”

Having failed at the federal District Court, the researchersappealed to the 1st Circuit, arguing that the subpoenasshould be quashed to protect the confidentiality they prom-ised to the interviewees.

Smith, who handled the matter with Assistant U.S. At-torneys Randall E. Kromm and John T McNeill, argued thegovernment’s case while the local, national and interna-tional press followed every aspect of the litigation. Last July,the 1st U.S. Circuit Court of Appeals ruled that the matterwas between U.K. officials, the federal government andBoston College — not the researchers.

“As we argued to the 1st Circuit, and as the 1st Circuitrecognized, the treaty itself expressly excludes and expresslydisavows that it creates any private right to anybody to in-tervene in the process,” Smith says.

Nevertheless, the saga continues; the researchers havefiled a petition for certiorari at the U.S. Supreme Court.

Q.The case received a huge amount of media attention. Didthat affect the way you handled it?A. It probably had more media attention than any case I’veever handled, but that doesn’t really have a bearing on howyou analyze your arguments and how you present them.But yes, there was a massive amount of coverage every dayin the local papers, and as I understand it there was mas-sive coverage in the U.K. and in Ireland, as well.

Q. Was there a particular aspect of the case that was espe-cially challenging?A. Yes, the interplay between the [researchers’] motion tointervene in Boston College’s effort to quash the subpoe-nas and the independent, separate civil suit [by the re-searchers]. And the fact that there were two different cas-es in the civil court and in the District Court; and twoappeals; and two sets of subpoenas; and Boston College hadappealed one and not appealed the other. Organizational-ly, that created a challenge in just how to structure the ar-gument. [So] we had to consider: Does one [case] subsumethe other one? That turned out not to be an easy question.

Q.How did you tackle such a complicated question?A. Well, in the end we framed it as [what] we thought [theresearchers’] strongest rights would have been as interven-ers. But that fell short. They didn’t meet those tests. And sotheir separate civil complaint also fell short. That was evenfurther removed. If they could meet the standard for in-tervention, we argued, then they were even further awayfrom having a cognizable claim in the standard civil action.[Moreover,] we argued that these type of treaties work wellbecause they are designed to make the process more effec-tive and efficient and quicker. We were pleased that the 1stCircuit recognized that strong public interest in not im-peding criminal investigations.

— KIMBERLY ATKINS

BARBARA HEALY SMITHU.S. Attorney’s Office

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