This week, the Supreme Judicial Court of Massachusetts is holding oral arguments in a number of high-profile appeals. Daniel Medwed, GBH News legal analyst and Northeastern University law professor, joined Henry Santoro on Morning Edition to discuss the legal issues. This transcript has been edited for clarity and length.
Henry Santoro: Dan, if you were on the SJC this week, what are the cases that caught your eye and why?
Daniel Medwed: Well, the first one that grabbed my attention, Henry, is an appeal filed by Tamara Lanier, a Black woman who sued Harvard University a couple of years ago for the use and possession of certain daguerreotypes — early stage photographs that depicted her ancestors while they were enslaved. Her claim is that she should receive the images, they should be transferred to her and that she should get just damages for their use. Harvard moved to dismiss the case on the grounds that she lacked a property interest in the images and that her claim was time-barred; that she filed it too late.
The trial court in Middlesex County out in Woburn reluctantly agreed. They said, "Unfortunately, current legal principles basically tie our hands." So this is a fascinating, fascinating case. What happened afterwards, Henry, is that ordinarily a case like that would just go up to the intermediate court, to the Massachusetts appeals court. But in this instance, the SJC reached down and plucked the case for what's called direct review. That's very rare, and it's usually a sign that the SJC is fascinated by the case. And in fact, the issues here are fascinating. They concern the nature of property rights and, of course, the extent to which we should compensate for historic harms.
Santoro: How do you think this thing will turn out? Does Lanier the plaintiff have a strong claim to those daguerreotypes?
Medwed: Oh, absolutely. I think she has a very strong moral claim because her ancestors were forced to sit for these photographs in front of a Harvard professor and white supremacist, Louis Agassiz, way back when. But the legal landscape is much more complicated. So on the one hand, the general rule is that the subject of a photograph doesn't have any property interest in the items, regardless of how objectionable the origins or the circumstances are surrounding the photo. That's the general principle. On the other hand, Lanier has raised some very compelling legal claims about how property rights are not immutable, they're not fixed and how principles of equity and ancient property law could perhaps correct this injustice. So I think we'll just have to wait and see how the SJC responds.
Santoro: In addition to the Harvard case, did anything else jump out from the court's docket?
Medwed: Sure. Well, another one that caught my eye is a case called Pearson vs. Hodgson, and this concerns the nature of jail conditions in Bristol County, or really the nature of a telecommunications contract between Bristol County and a private service provider. So here's the backdrop: Under Massachusetts law, a sheriff must provide "reasonable access to telephone services for incarcerated people to allow them to communicate with their loved ones." The ever controversial sheriff in Bristol County, Tom Hodgson, entered into a lucrative and exclusive contract with a private company, Securus Technologies, that had a couple of ripple effects. First, according to the ACLU, it nearly doubled the phone rate for inmates in the Bristol County facility. And second, it provided basically for 48 percent of the gross revenues to go back to Bristol County, to the jail itself. So the gist of this claim here is basically that Bristol County has profited on a vulnerable and marginalized population that had no other recourse but to use these exorbitant telephone services.
Santoro: And GBH news covered that story when that story broke. Because those rates, those phone rates, the inmates couldn't afford to pay for a phone call.
Medwed: I don't think any of us could. It's really incredible.
