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The Massachusetts Supreme Judicial Court’s recent decision in Commonwealth v. Henry imposed clearer defendant-friendly safeguards on judges when imposing restitution in a criminal matter.  Additionally, the SJC also held that, in cases of theft from retail stores, the amount of actual restitution is the “replacement value” of the stolen goods; unless the government proves by a preponderance of the evidence that the stolen goods would have been sold, in which case the “retail sales value” should be the amount of restitution.

It had been the longstanding practice to impose restitution in cases regardless of whether or not the defendant was employed or had any ability to pay it.  Oftentimes, the defendant, by that time placed on probation, would be brought back before a judge on a probation violation hearing because he wasn’t able to pay per the court order.  Way too often, the defendant had either his probation extended so he could somehow find satisfy the restitution amount; or he was ultimately sent to jail.

Moving forward, a judge must take into account a defendant’s ability to pay the restitution amount; and may not impose a longer period of probation or extend the probation because of the person’s inability or limited ability to pay that restitution. Continue reading →

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cellphoneIn the case now being prosecuted in Suffolk County, Massachusetts, against Aaron Hernandez, the SJC has ruled that a cell phone belonging to Hernandez, given by him to his prior attorneys, must be turned over to prosecutors for the Commonwealth as a result of an anticipatory search warrant application.

Aaron Hernandez is awaiting trial for murder in connection with the shooting deaths of Daniel de Abreu and Safiro Furtado in an alleged drive-by shooting in Boston. In its investigation, Alexander Bradley told prosecutors he witnessed Aaron Hernandez shoot at 5 people in a BMW on the date of the shooting. Bradley also told prosecutors that, following the shooting, he and Hernandez communicated with one another via text message, with Bradley eventually threatening to sue and expose Hernandez’ violent conduct. Later, in June 2013, Hernandez gave his cell phone to his attorney for the purpose of seeking legal advice on several issues. Continue reading →

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imagesA reported question pre-trial was taken by the Massachusetts Supreme Judicial Court in the matter of Commonwealth v. Timothea T. Neary-French as to whether the defendant had a right to an attorney prior to submitting to a breathalyzer test.  The Supreme Judicial Court held that there is no such right to an attorney before deciding whether to take a breath test when stopped for Operating Under the Influence of Alcohol, despite the fact that the law permits a permissible inference of intoxication upon a reading of a blood alcohol level of 0.08% or more. Continue reading →

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The United States Supreme Court, in a decision concerning the lawfulness of a stop and search of a man, founds grounds to justify the arrest of the person despite ruling that the police officer violated the man’s constitutional rights by stopping him in the first place.  The decision, issued in Utah v. Strieff, is disturbing because it expands the scope of where unlawful police action might be negated where other circumstances, not known at the time of the unlawful police conduct, become known.

The facts of the case involved a drug investigation of a house in Utah, where the police had received an anonymous tip of “narcotics activity.” Police conducted “intermittent” surveillance of the home where they observed visitors who had left a few minutes after arriving.  One day, they observed this particular defendant leave the home and walk to a nearby convenience store. A detective approached him and asked him what he was doing at the home and requested the man’s identification. Continue reading →

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The United States Supreme Court reversed the murder conviction of a Louisiana man and granted him a new trial, finding that the the prosecutor had withheld evidence that could have supported his defense at trial that could have cast doubt on the credibility of prosecution witnesses. This case, Weary v. Cain, is notable because the SJC expanded upon the principle concerning violations of a defendant’s due process rights when the prosecution withholds material evidence.

Under the rule pursuant to Brady v. Maryland, the suppression by the prosecutor of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. In Weary v. Cain, the SJC held that the defendant does not need to establish that “more likely than not” that he would have been acquitted if the withheld evidence had been admitted. Rather, the defendant claiming a “Brady violation” need only show that the evidence is sufficient to “undermine the confidence” in the verdict.

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In a recent decision concerning whether the seizure and resulting inventory search of a car by the police, the Massachusetts Supreme Judicial Court held that, in circumstances where persons are arrested and their vehicle may be towed and inventoried, a practical alternative to the seizure and impoundment of the car could render its impoundment unreasonable and unlawful. See Commonwealth v. Jemaul R. Oliveira.

In this case, Mitchell Violet and Jemaul Oliveira were arrested for shoplifting from a department store. When questioned, they told the police that the merchandise was in a bag in their car and also gave the police the keys and permission to retrieve the bag from the car. The police took the keys, unlocked the car and retrieved the bag from the back seat.

After advising them that the car would be impounded and inventoried, the defendants appeared “agitated” and Violet requested that he have his girlfriend come pick up the car, as it was also registered in her name. The police rejected this request, conducted an inventory search of the car, and in the glove compartment, found a loaded firearm.

Both were then charged with Shoplifting by Concealing Merchandise and Unlawfully Carrying a Firearm.

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The issue of the reliability of eyewitness identifications has been a hot topic in Massachusetts courts the last few years.  Several cases from the Massachusetts Supreme Judicial Court and Appeals Court have touched upon the danger of suggestiveness of eyewitness identifications, their reliability and consequently, their admissibility against defendants at trial.  Commonwealth v. Johnson, decided by the SJC on February 12, 2016, is yet another decision highlighting suggestive identification issues.

The Johnson case involved an issue where the defendant, prior to trial, moved to suppress (or exclude) the identification of him by the victim of a robbery because, he argued, it was made under circumstances that were impermissibly suggestive and therefore, unreliable to be admissible as an identification of him at trial. robbery  These issues are litigated in Massachusetts courts daily, and most often, it isn’t much of a big deal as far as the law goes.  But in this case, the major issue that sets this case apart from most others is that the impermissible identification procedure didn’t come from the police…

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In a recent decision, the Massachusetts Appeals Court appears to have broadened the scope of “reasonable suspicion to stop” a person in circumstances where he did not match the descriptions of the suspect as provided by eyewitnesses.

In the case of Commonweatlh v. Johnson, police responded to several 911 calls of shots fired by multiple shooter in a residential area. One 911 caller reported that the shooters were black and or Spanish, one of which ran towards a nearby park. Another 911 caller reported a shooter as a black male who wore a black jacket, a red bandana, and then ran from the scene (without stating even the general direction of flight). Continue reading →

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The Massachusetts Supreme Judicial Court recently considered a defendant’s challenge that his second degree murder conviction should be overturned because his constitutional rights were violated when the trial judge refused to grant immunity to potential defense witnesses. In the case of Commonwealth v. Brewer, although the SJC affirmed the defendant’s conviction, the court left open the issue of defendant’s, as opposed to only the government, having a means to offer immunity to potential witnesses.

In this case, the victim had been shot after leaving a party, though the evidence suggested that he was not the intended target of the shooting. The government called three witnesses who claimed the defendant was the shooter, one of whom was granted immunity in exchange for his testimony. The defense, however, attacked these witnesses’ credibility and asserted that one of these three witnesses was actually the shooter.

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The Massachusetts Appeals Court recently rejected the Commonwealth’s appeal from the suppression of drug evidence by the trial court, holding that the judge properly suppressed the drugs seized from the defendant because the Boston Police conducted an unlawful search and seizure of his person.

In the case of Commonwealth v. Johnny Evans, the defendant challenged the stop by the police and claimed that he was subjected to an unlawful search and seizure, despite the recovery of cocaine. The judge who heard the defendant’s motion to suppress agreed, ruling that the stop was unconstitutional, and suppressed the cocaine.

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