Committee for Public Counsel Services

Strategic Litigation Unit

75 Federal Street, 6th Floor, Boston, MA 02110
Tel: (617) 482-6212

ANTHONY J. BENEDETTI
CHIEF COUNSEL

September 21, 2021

Honorable Dalila Wendlandt

Associate Justice
Supreme Judicial Court
John Adams Courthouse
One Pemberton Square
Boston, MA 02108

RE: Carrasquillo v. Hampden County District Courts, SJ-2019-0247

Dear Justice Wendlandt:

We write to provide an update to the court regarding the counsel shortage in the Hampden
County criminal courts and CPCS continuing good faith efforts to address the issue.

Duty Day Coverage September through December

As of September 13, 2021, CPCS once again implemented the emergency duty day rate in
Hampden County. The emergency duty day rate had previously been in effect in July 2019 and
remained in effect through June 30, 2020. CPCS was concerned, and remains concerned, about
the ability of other counties to cover their own duty days if their attorneys are taking duty days in
Hampden County. When the emergency duty day rate was in effect between July 2019 and June
2020, it did in fact have the negative consequence of exacerbating counsel shortages in neighboring
counties, as bar advocates were drawn away from their home counties by the emergency rate in
Hampden County. Nevertheless, in light of the deteriorating situation in Hampden County, CPCS
put the emergency duty day rate back in place, which has resulted in a significant increase in
attorneys taking duty days in the Hampden County courts.

The Chicopee, Palmer, and Westfield District Courts have full coverage through the end
of the year. See attached Ex. A Duty Day Calendars updated as of September 17, 2021. From
September through the end of the year, nine different HCLJ bar advocates and eleven out-of-
county attorneys are scheduled for a duty day in Chicopee; nine different HCLJ bar advocates and
seven out-of-county attorneys are scheduled for a duty day in Westfield; and fourteen different
HCLJ bar advocates and six out-of-county attorneys are scheduled for a duty day in Palmer.

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 Unfortunately, the Springfield and Holyoke District Courts still have a significant number
of openings. See id. Springfield District Court is covered through the end of the month, has
Section 35 attorneys scheduled through October, and currently only has two days with no coverage
in October, though there are many days where additional attorneys are needed. Through October,
sixteen different HCLJ bar advocates and four out-of-county attorneys are scheduled for a duty day
in Springfield. Holyoke District Court still has three uncovered duty days in September alone and
has six uncovered duty days in October. Between now and the end of the year, only five HCLJ bar
advocates and three out-of-county attorneys have scheduled a duty day in Holyoke.

The Springfield PDD continues to take cases from the list of defendants without counsel,
prioritizing those cases where a person is held, and continues to accept new cases of current
clients. As of this writing, all defendants incarcerated without counsel are conflicts for the PDD.
Moreover, while the Springfield PDD is scheduled for its full complement of duty days starting in
October, given its current caseload, CPCS can only commit to taking its duty days in the
Springfield and Holyoke District Courts from Monday, October 18 through Friday, October 29.

As previously stated, the closest PDD offices (Worcester, Northampton, and Pittsfield)
have taken cases when they could. However, the Franklin County Bar Advocate Program is unable
to fulfill all of its duty days in the last quarter of 2021, and the Northampton PDD will be
providing coverage for extra duty days in Franklin County as a result. Thus, they are not able to
assist in Hampden County. Worcester County is on the cusp of its own counsel crisis; therefore,
the Worcester PDD cannot accept any more cases. The Pittsfield PDD has taken the most cases
from Springfield and their caseloads have risen continually since May 2021; they do not have any
capacity to take additional cases at this time.

Implementing the Lavallee System

According to our records, as of the end of the day on Friday, September 17, there were 95
people without counsel, 12 of them held, and four of them have had cases pending for more than
45 days. The Lavallee lists we receive from the court are missing a significant number of people.
We have reached out in the hopes that this on-going problem can be addressed.

CPCS Continued Good Faith Efforts

CPCS continues its good faith efforts to provide each and every indigent defendant with
qualified counsel at arraignment. In the short term, the Private Counsel Division (PCD) has
redoubled its efforts to contact attorneys to take cases off the list. Since our last status report, the
PCD has reviewed and approved eight more out-of-county attorneys to the Hampden County list;
this is in addition to the 44 out-of-county attorneys actively taking cases and/or duty days. One of
the attorneys added to the list is Superior Court certified, and the PCD identified three additional
attorneys who are eligible for superior court certification and are working with them to complete
the process.

Working with HCLJ, CPCS identified HCLJ attorneys that could possibly have capacity to
take additional cases. As a result of this effort, thirty-four panel members were contacted by phone
and four cases were assigned. Some bar advocates are still reviewing their caseloads and capacities.
Others declined for reasons including health concerns and lack of capacity due to the Covid-19

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backlog. We are hopeful that more bar advocates will be willing to sign up for duty days in
Springfield District Court in light of the findings of CPCS environmental expert that the
Springfield courthouses may used in the usual course (see below).

The PCD continues to work with the Massachusetts Bail Fund so that eligible individuals
can have their bail posted. Last week, HCLJ assigned 13 superior court cases and 19 district court
cases off the list, the PCD found counsel for seven more, and the Springfield PDD took three
cases.

In the long-term, the PDD announced the creation of a Holyoke PDD office. See Ex. B
Letter from Randy Gioia and Vanessa Velez. The office will be comprised of eight staff attorneys,
an Attorney-in-Charge, a Supervising Attorney, a social worker, an investigator and two
administrative assistants. The Holyoke office will cover cases arising in the jurisdictions of
Holyoke, Chicopee, and Palmer. Springfield and Westfield will continue to be handled by the
Springfield PDD office. The goal of establishing this new PDD office is to provide more PDD
coverage in Hampden County, and thereby ease the pressure on Hampden Lawyers for Justice
(HCLJ) to find qualified Bar Advocates to take cases. It is hoped that, once the new Holyoke PDD
office is up and running, it will help ensure adequate duty day coverage throughout Hampden
County so that individuals entitled to counsel are timely and promptly represented from the
earliest point in criminal proceedings to their end.

CPCS will provide more information about the office as plans develop, but is actively
looking for physical space and anticipates that hiring will begin in the coming weeks. CPCS is also
stepping up efforts to recruit new attorneys to the panels in Western Massachusetts, while looking
into new strategies to appeal to newer attorneys for both staff and private panel positions.

Roderick Ireland Courthouse in Hampden County

On September 13, 2021, Chief Counsel Anthony J. Benedetti suspended in-person

appearances in the Roderick L. Ireland Courthouse by staff attorneys until CPCS had an
assessment from its own consultant that appearing in person before the court did not pose
unacceptable environmental health risks. Bar advocates were also encouraged to stay out of the
courthouse until we received more information.

On Thursday, September 16, 2021, PDD Managing Director, Jay Dixon and Deputy Chief
Counsel Randy Gioia accompanied our expert, a Certified Industrial Hygienist, to inspect the
Springfield courthouses at 50 and 80 State Street. During the inspection, the expert took samples
from various surfaces to test for the presence of mold. Late Friday afternoon, September 17, 2021,
the expert informed us that testing of the sample from the air diffuser indicated the presence of
mold and advised that the area should be cleaned and sprayed with mold inhibitor to abate the
condition. None of the other surface samples he lifted showed the presence of mold.

After receiving this information, Attorney Gioia contacted facilities management for the
trial courts, which promptly responded by sending in remediation crews to the building. At around
7:00 p.m. on Friday evening, CPCS was informed that a contractor had cleaned four diffusers
outside the courtrooms across from the superior court clerk s office, including the one with the
positive test for mold.

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 On Monday morning, September 20, 2021, CPCS received a preliminary safety assessment
from our expert, advising that, based on his review of documents, first-hand observations in the two
courthouses, and his review of the results of his surface sample testing, occupanc in the building
should be restored to normal business as usual conditions. These conclusions are conditioned on
inspection of the weekend remediation and review of re-testing on the third floor of the Ireland
Courthouse, and the prompt review of the underlying lab data relied upon by the trial
courts. Based on our expert s safety assessment, CPCS believes it is safe to permit our attorneys to
appear in person in court and has informed our attorneys of this.

Trial Courts Request for Evidentiary Hearing

Respondents requested a hearing, conducted by the Single Justice or other neutral

decisionmaker, to explore and identif the causes of the counsel shortage in Hampden Count ,
and possible solutions. Resp. Status Report at 6. CPCS respectfully suggests that the filings in this
case are clear as to the multitude of reasons for the counsel shortage in Hampden County, as well
as possible solutions, and CPCS is open to suggestions as to additional solutions which we may not
have considered. Nevertheless, CPCS is amenable to an evidentiary hearing before a neutral
factfinder and a status conference, as requested by Respondents, for the purpose of deciding on a
process.

Respectfully submitted,

/s/ Rebecca Jacobstein

Rebecca Jacobstein
Director of Strategic Litigation

/s/ Benjamin H. Keehn

Benjamin H. Keehn
Appellate Counsel to the Trial Unit

cc: AAG Timothy Casey

ADA Katherine McMahon

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EXHIBIT A
EXHIBIT B
 Committee for Public Counsel Services
Private Counsel and Public Defender Division
75 Federal Street, 6th Floor, Boston, MA 02110
Tel: (617) 482-6212 – Fax: (617) 988-8495

ANTHONY J. BENEDETTI RANDY GIOIA

CHIEF COUNSEL DEPUTY CHIEF COUNSEL

VANESSA VÉLEZ
DEPUTY CHIEF COUNSEL

September 14, 2021

Good afternoon,

As all of you know, we have had significant issues to timely provide lawyers to all who are guaranteed
representation for some time. Nowhere is this issue more pronounced than in Hampden County, an area
where we have consistently had problems recruiting and providing counsel. In response to this ongoing
emergency, we are implementing two initiatives with the same goal: to end the counsel crisis in Hampden
County.
In an effort to create a long-term solution to the problem, CPCS is establishing a new Public Defender
Division (PDD) office in Holyoke. The office will be comprised of eight staff attorneys, an Attorney-in-
Charge, a Supervising Attorney, a social worker, an investigator and two administrative assistants. The
Holyoke office will cover cases arising in the jurisdictions of Holyoke, Chicopee and Palmer. Springfield
and Westfield will continue to be handled by Springfield office. This new office will provide greater
coverage by the PDD in Hampden County and ease the pressure on Hampden Lawyers for Justice (HCLJ)
to find qualified Bar Advocates to take cases. Most importantly, it will ensure all courts are adequately
covered to ensure counsel at all duty days and the assignment of counsel in a prompt and timely manner
so that all CPCS clients are represented from the earliest point in criminal proceedings to their end.
We will provide more information about the office as plans develop, but we are actively looking for
physical space and anticipate that we will begin hiring in the coming weeks. We are also stepping up
efforts to recruit and new attorneys to the panels in Western Massachusetts, while looking into new
strategies to appeal to newer attorneys for both staff and private panel positions.
The second initiative, which we shared last week, begins today and is a short-term strategy to the ongoing
counsel crisis. An "Emergency Duty Day Rate" has been implemented for duty day coverage by Bar
Advocates from Hampden County and outside Hampden County starting today and ending on December
31, 2021. Bar Advocates providing duty day coverage from today through December 31, 2021, in
Chicopee, Holyoke, Palmer, Springfield, and Westfield will receive an "emergency rate" of $480.00 per
day. In addition to the $480.00 emergency rate, The bar advocate will be able to bill for their actual time
worked on cases assigned and other legal work on assigned cases up to the 10-hour presumptive daily cap
on billable hours.
To qualify to take a duty day in Hampden County and receive the $480.00 emergency rate, Bar Advocates
should continue to take duty days in their home counties and out-of-county Bar Advocates may not cancel
a duty day in their home county to take a duty day in Hampden.
CPCS will continue to advocate for higher hourly rates for the private bar as preparation for fiscal year
2023 begins. The legislature responded with our year one request of a three-year proposal and we will be
back looking to continue this progress. We hope that these initiatives, in conjunction with enhanced
recruiting and higher hourly rates for Bar Advocates, will help us finally overcome this ongoing counsel
crisis.
Thank you for your advocacy on behalf of our clients throughout this crisis, especially over the last
eighteen months during the pandemic. This is difficult and challenging work under the best of
circumstances and it is greatly appreciated.

Respectfully,

Randy Gioia
Randy Gioia
Deputy Chief Counsel
Public Defender Division

V.Vélez
Vanessa Vélez
Deputy Chief Counsel
Private Counsel Division