Editor: Ken, as Chairman of Goodwin Procter's Products Liability & Mass Torts practice, you also find time to chair the firm's Pro Bono committee. What has led to your interest in pro bono?
Parsigian: After serving for five years as a volunteer at VISTA (Volunteers in Service to America) I attended law school and then joined Goodwin. However, I retained my passion for community work and am grateful that I can continue it at Goodwin.
Editor: On May 1, 2008 you were awarded the John Minor Wisdom Public Service and Professionalism Award of the ABA. Please tell our readers about the origin of this award.
Parsigian: The ABA named its pro bono and professionalism award after John Minor Wisdom, a fifth circuit judge who was not only internationally respected for his jurisprudence but also for his dedication and commitment to public service.
Editor: Your pro bono service extends over a 22-year period. Could you recount the recent case of Kenneth Richey and its favorable outcome?
Parsigian: The Kenneth Richey case came from the ABA's Death Penalty Project, which matches up cases with lawyers. I am opposed to the death penalty because I do not think the state should be in the business of executing, but that doesn't mean I'd give up thousands of hours of my life defending the principle in the case of a depraved murderer. There were two things about the Richey case that I found appealing. First, there were real questions about whether he committed the crime at all. When you believe somebody has really been railroaded, you feel more inspired to fight.
Secondly, what always struck me about the case at the writ large level was that even if every single word the prosecution said were true, this should not have been considered a death penalty case. Here is what the State said: at 3:45 a.m. Kenneth Richey was so drunk that, according to the government's witness, he lay passed out, spread-eagle in a bush. Nonetheless, the State claimed, at 4:15 he got up, staggered across the street, got some gasoline and turpentine, went to an upstairs apartment, spread gas on the floor and onto the deck, started a fire in the hopes that it would burn through the floor and kill his ex-girlfriend, and jumped off the deck. The fire never burned through the floor, but there was a little girl asleep in the upstairs apartment, and tragically, she died. Even the prosecution admitted that Richey threw a wet towel over his head when the fire department came and twice tried to rescue her; he had to be physically restrained from trying again. I don't know of a single death penalty case in which the accused actually tried to save the life of the person who died at risk to himself.
Interestingly, the prosecution offered Richey a plea bargain such that he would have been out in 11 years, which itself was very odd; in a death penalty case, the guilty party might be offered life without parole, but not 11 years. To me this indicated that the prosecution knew the weakness of the case, and it was vindictiveness on their part to seek the death penalty. As in other cases like these, the prosecutor was running for judge; a little girl had died, and somebody had to be blamed.
Ultimately the case turned on facts surrounding the charge of murder by arson. When the fire marshall went through the apartment initially, he said the cause of fire was an electric fan in the living room. The next day, the State decided there may have been an issue of arson, so officers went to Kenny Richey's apartment, where they found him still in the same clothes from the night before and arrested him. When his clothes and person were tested for accelerants, nothing was found. The living room carpeting was retrieved from the dump where it had been taken the day before, and when it was later tested it, gasoline and turpentine were "discovered" on it. It was on this, and on testimony from a few witnesses (who later recanted) that the prosecution built its case. At the same time, no one could make the case that Richey had ever wanted to kill the little girl, for whose death Richey was supposed to pay with his life.
We enlisted the help of a highly regarded forensic chemist and an equally respected fire recreation expert, who together concluded that there was in fact neither gasoline nor turpentine (nor anything like it) on the carpet, and that what was on the deck was naturally occurring wood turpentine. In fact, they found there was no credible evidence of arson whatsoever. Upon further investigation, we discovered the State's expert had used his own unpublished and untested methods - methods he thought "superior" to all others in his field, but methods which our experts dismissed as junk science. Meanwhile, we also learned that Richey's original lawyer knew that the little girl herself had started two fires in the house - one on the bed and another on the sofa - to which the fire department had come. Apparently the lawyer had decided he did not want to blame the victim, so he avoided using any of that evidence, which struck me as a very poor choice to make in a case in which he convinced his client to waive a jury and try the case before a three-judge panel.
We took the case to the Sixth Circuit, where his conviction was reversed, and the state was told to release him or retry him. By this point, no one in the Ohio Arson Crime lab would support the expert testimony from the first trial. We convinced the Court that any minimally competent lawyer would have been able to show that there was no evidence of arson, and therefore no murder by arson was possible. The State came to us with a deal that if Richey would plead guilty to one count of reckless endangerment of a child and one count of breaking and entering, he could walk for time served. Kenny wanted to fight, but I did not let him; to subject him to a trial by jury in the original jurisdiction (which was still hostile) would have been malpractice on my part, when they were willing to set Kenny free for pleading guilty to what amounted to a "failure to babysit." As I told Kenny, to get that plea deal after the death penalty is as close as most prosecutors ever come to admitting they were wrong.
Editor: Please tell us about your work with GLAD (Gay & Lesbian Advocates & Defenders) in convincing the Massachusetts Supreme Court to legalize gay marriage.
Parsigian: That was a fascinating project. Mary Bonato, GLAD's lead lawyer, was trying to make the point that there is a fundamental constitutional right for gay and lesbian couples to marry. I have a hard time with fundamental rights arguments, so I constructed an argument built on case law that showed that a husband or wife can never annul a marriage because of infertility. However, a marriage can be annulled if a husband is impotent: if you cannot consummate a marriage, you can annul. To me, this indicates that the fundamental purpose of marriage is the protection of intimate relations, not procreation. Once the state got rid of the sodomy law, there was no impediment to gays being married.
I have also argued that gays and lesbians can adopt in our state. All adoptive parents are judged by the same standard - that of having to act in the best interest of the child. What is the basis for saying that some of those parents can legally get married in the best interest of the child, but others are deprived of that?
Editor:Would you tell us about the asylum cases?
Parsigian: The asylum cases are wonderful for a few reasons. I run a program at the firm in which I take second- and third-year lawyers and mentor them through one of these cases. We get the cases through an immigration asylum relief organization called PAIR, which screens the cases and identifies those suitable for large-firm representation. Through the program, junior lawyers can learn all of those things that trial lawyers are supposed to know how to do. First of all, they get to have a lot of client contact, which they would not otherwise get in their practice areas. Secondly, of particular importance is learning how to work with witnesses. The most common challenge in these asylum cases is consistency. Your heart really goes out to people when they lose their case on some technical inconsistency in their testimony, so lawyers must spend time working up their client's testimony very carefully. In addition the lawyer gets to do an administrative hearing in front of an administrative law judge; usually he or she will put on the individual and then a country expert, who will point out that the asylum seeker will be persecuted, beaten or imprisoned in her home country because she is of a certain ethnicity, gender, tribe or sect. We have had enormous success with this program; I believe we have had asylum granted in every case we have taken.
Editor: Can you tell us about the Youth Advocacy Project of the Boston Bar Association?
Parsigian: I just love this organization. They would describe it differently, but I will give you my version. There are countless mostly inner city youth in Boston and in other cities across the state (Springfield comes to mind) who have their first brush with the law as a teenager. Especially if that teenager is outside Boston, he or she will get a public defender who is likely not a specialist in juvenile justice. For the public defender (who is probably overworked)the goal becomes getting the kid out the same day with no jail or juvenile home time; with a first offense the defender will usually succeed.
But YAP sees the first offense as a huge red flag signaling problems generally in multiple areas - at school and/or after school, and at home with few or no role models or respected control figures. YAP takes an all-in approach. Juvenile defenders put a plan together to help the youngster at school and to make sure he is advancing. They work with the family to find an extended family member who will be a positive influence and assist in finding an after-school program or a job.
When you hear kids who have worked with YAP and have come out on the other end and graduated from high school and gone to college, and they talk about what a difference YAP made to them, you really hear that you have done some good. It is a great organization.
Editor: In what ways do you feel that Goodwin Procter continues to be a leader in pro bono among the law firms in the area?
Parsigian: Many law firms and most large law firms that I know are facing the problem that they have overhired. Many offered to pay people to do community service, and to my knowledge, they gave their hires the money and left them on their own to find work. We took a different path, which we call the Make a Difference program. We actually went about creating internships and fellowships for our hires. We found openings at organizations and put together a list of options. By having partners work to put together these programs, the people we have hired understand that they are going to be "left behind" if they choose the community service option. I think to the shock of many, half our incoming class volunteered to do these programs, which paid $60K rather than $160K a year. I was very impressed, but not shocked, to see how many people want to make a difference.