Boston Criminal Lawyers Blog
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Many clients, and even attorneys, don’t understand the perils of interviewing potential witnesses without the assistance of an investigator. Even when I explain and encourage client to retain the services of an investigator, many of them forego the use of an investigator for no other reason than to save some money. Unfortunately, not hiring an investigator can end up costing the client much more in the long run, and in some cases, even a conviction.

The recent case of Commonwealth v. Zabek was heard before the Massachusetts Appeals Court and specifically addressed the issue of trial counsel interviewing witnesses on his own and the potential conflict of interest that may arise as a result.

In that case, the defendant was convicted after trial on charges of rape of child and other sexual offenses. In his appeal, the defendant claimed that his trial attorney was ineffective because he had an actual conflict of interest and could not therefore zealously defend him. The lawyer, the defendant argued, had interviewed a witnesses prior to trial without an investigator, which then potentially made the lawyer a potential impeachment witness at trial.

Specifically, because the lawyer interviewed the witness alone and without the use of an investigator, had the witness testified inconsistently at trial, the lawyer would have had an actual conflict against his client because his testimony might be necessary to properly defend his client.

The Appeals Court noted that the Massachusetts Rules of Professional Conduct prohibit an attorney from acting as trial counsel at a trial in which the lawyer is likely to be a necessary witness.

In this case, however, the Appeals Court rejected the defendant’s appellate claims because it turned out that the witness did not ultimately testify inconsistently with what was stated to the lawyer in the pre-trial interview. Additionally, the issue was raised before the trial judge and both the attorney and the defendant conceded that there was no reason to believe that the witness would offer any inconsistent testimony.

Nonetheless, this case is illustrative of the precise circumstances as to why a trial attorney should never interview witnesses on his own. By having another person witness the interview, that other person would then be available and able to be called at trial in the event the witness were to testify inconsistently.

Boston Criminal Lawyer Lefteris K. Travayiakis is available 24/7 for consultation on all Massachusetts Crimes and may be reached at 617-325-9500.

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In a recent appeal concerning a sexual assault case, he Massachusetts Appeals Court considered whether the purported ‘first complaint testimony’ must be remembered by the complainant in order to be admissible against a defendant at trial.

In Commonwealth v. Dale, the defendant appealed from his conviction of indecent assault & battery on a child under 14, arguing that the trial judge improperly admitted ‘first complaint testimony’ by the brother of the victim, who was 7 or 8 at the time of the incident. At trial, the brother testified that, at the time of the incident, the complainant had reported the abuse to him; but the complainant could not recall herself that she had, in fact, reported the abuse to her brother.

In Massachusetts, the first complaint doctrine permits a judge to admit testimony from the recipient of a victim’s initial report of sexual assault. The ‘first complaint witness’, i.e., the person to whom the sexual assault was first reported to, may also testify to the circumstances surrounding the complaint, including observations of the complainant; the events or conversation that culminated; the timing of the complaint; and other relevant conditions that might help the jury assess the truthfulness of the complainant as to the allegations of sexual abuse.

The Massachusetts Appeals Court rule that, in assessing whether the first complaint testimony is admissible at trial, it is not necessary that the complainant remember what, or if anything at all, was said. The court reasoned that the complainant’s lack of memory goes “to the weight of the evidence, not to its admissibility”.

The court specifically held that the first complaint doctrine balances the interests of a complainant, such as a child in this case, in having her credibility fairly judged on the specific facts of a case rather than unfairly judged by stereotypical thinking; with that of a defendant. This doctrine aims to provide the jury with all the information in order for them to assess the credibility of the complainant.

In other words, the Appeals Court ruled that, whether or not the complainant actually remembers relaying the circumstances of the abuse to another, the statements are still admissible. Whether or not the complainant remembers the conversation can be argued by the defendant to challenge the credibility of the complainant and the accuracy of the allegations.

In this particular case, it appears that the overwhelming reason why the court reached this decision is because the complainant here was a child at the time of the abuse. One view in the legal community is that child victims of sexual assault tend to block out the event so that their ability to remember and recall the circumstances at a later age is not out of the ordinary. On the other hand, many legal professional believe that children often tend to embellish, exaggerate or even fabricate sexual assault allegations for a variety of reasons. The Appeals Court here may have sought to balance these two views from their reasoning in this case.

Boston Criminal Lawyer Lefteris K. Travayiakis is available 24/7 for consultation on all Massachusetts Sex Crimes Charges and Criminal Appeals. Click Here to Schedule a Confidential Consultation or call 617-325-9500.

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A defendant’s motion for new trial from his conviction in a 1986 murder was upheld by the Massachusetts Supreme Judicial Court as a result of re-testing of critical forensic evidence.

In the case of Commonwealth v. Sullivan, the SJC affirmed the trial judge’s allowance of the defendant’s new trial motion from his convictions of 1st degree murder and armed robbery because forensic testing, technology not then available at the time of trial, would have been a substantial factor in the jury’s deliberations.

In this case, the defendant was convicted in the death of the victim in 1986. The evidence at trial illustrated two different eyewitness accounts: one version implicating the defendant in the killing; and the other that he was not even present at the scene at the time. One of the key pieces of evidence suggesting to implicate the defendant was the jacket he was wearing on the day of the murder…

At trial, the prosecutor argued that forensic testing on the jacket indicated the presence of blood on the cuffs; and a hair fiber found within the jacket was ‘consistent’ with a hair from the victim. This evidence was the only physical link between the defendant and the crime. The Massachusetts Supreme Judicial Court found that this evidence clearly was a substantial factor considered by the jury in there decision to vote for a conviction.

In 2011, however, the defendant had the evidence re-testing, and new forensic testing was able to establish that the spots on the jacket were not blood; that DNA recovered from the jacket were not that of the victim; and that the hair strand could not conclusively be said to have come from the victim.

As a result of this newly discovered evidence, the SJC agreed that, had this information been available to the defendant at the time of his trial, he could have argued to the jury that there was no direct physical link between him and the killing of the victim. The evidence, therefore, cast “real doubt on the justice of the defendant’s conviction.”

Boston Criminal Defense Lawyer Lefteris K. Travayiakis is available 24/7 for consultation on all Massachusetts Crimes, including Murder; and can be reached directly at 617-325-9500 or by Web Contact.

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In the case of Commonwealth v. Overmyer, the Massachusetts Supreme Judicial Court considered whether the smell of ‘unburnt marijuana’ provides police officers with probable cause to believe there is more than (the legal) one ounce to justify a search of the car without a search warrant. The court ruled that, no, the mere smell of unburnt marijuana does NOT justify a search.

In this case, police officers responded to a motor vehicle accident. On scene, the officers smelled “a very strong odor of unburnt marijuana near” the defendant’s car. In response to questioning by the police officers, the defendant admitted that marijuana was present in the car and gave the keys to the glove compartment to the police. Inside, there was a “fat bag” of marijuana. Because the odor of unburnt marijuana persisted, a further search was conducted and more marijuana in a backpack in the backseat.

As a result, this defendant was charged with possession with intent to distribute a class D substance and school zone violation.

In challenging the validity of the search of the car prior to trial, the motion judge ruled that once the marijuana was recovered from the glove compartment, the additional persistent smell of unburnt marijuana did not justify a further search of the back seat area and of the defendant’s backpack without a warrant.

The Massachusetts Supreme Court agreed, holding that since the law concerning marijuana was reclassified (and where it is no longer a crime to possess an ounce or less of marijuana) ‘the odor of unburnt marijuana alone cannot reasonably provide suspicion of criminal activity.’

Interestingly, the court further expanded on officers’ characterizations of the “strong” or “very strong’ smell of unburnt marijuana, describing these characterizations as inherently subjective. The court additional called into question whether a police officer can somehow identity, simply by “odor”, the presence and identity of a particular controlled substance and its weight. Ultimately, the SJC held stated that “…we are not confident…that a human nose can discern reliably the presence of a criminal amount of marijuana, as distinct from an amount subject only to a civil fine.”

Boston Criminal Lawyer Lefteris K. Travayiakis is available 24/7 for consultation for all Massachusetts Drug Crimes and can be reached at 617-325-9500 or his Contact Page.

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Earlier this month, Massachusetts enacted the “Act Relative to Domestic Violence”. Though arguably the intent of the act is in good faith, it has very profound and serious implications on those defendants charged with a domestic violence offense in Massachusetts, directly altering the landscape at a defendant’s arraignment and bail, as well as the potential criminal penalties a defendant may face.

There are now dramatic changes to the domestic violence laws in Massachusetts, including new criminal domestic violence charges; changes to issues concerning bail, release upon arrest, and detention hearings; as well as issues affecting the person’s CORI information.

First, persons who are charged with a criminal offense that involves ‘domestic abuse’ are not eligible for release or bail within 6 hours from their arrest (unless the release or conditions of bail are imposed directly from a judge in court).

Second, at the person’s arraignment, the court must now inquire of the Commonwealth whether the purported domestic abuse occurred at or about the time of the alleged crime. If so, the prosecutor is required to file a written statement with the court and the judge must also make written findings that domestic abuse is alleged. These “findings” are to then be kept in a “statewide domestic violence” database. Despite the fact that the defendant is presumed to be innocent, the person’s name will not be removed from this database unless the person is acquitted or a grand jury returns a “no bill” or rejects a proposed indictment. Even a dismissal of the case will not remove the person’s name from this database under the new law.

Although this statement may not be used in any grand jury proceeding or investigation, nor by “the Commonwealth related to the crime for which the person was brought before the court“, the Act leaves open whether this statement may be admissible in other criminal or civil matters, such as for “prior bad act evidence”. Ridiculous…

Third, issues of bail. In addressing whether the person charged should be released on his own personal recognizance or if conditions of bail should be set, the Act also permits judges to consider the safety of the purported victim and/or others in the community. Inevitably, judges now facing requests by prosecutors to set bail and other conditions of release, will lean towards setting bail, higher bail and/or additional conditions of release that would not otherwise been imposed prior to the enactment of this Act.

In the past, if a defendant while released on bail was charged with another criminal offense, his bail could have been revoked and he could have been held in custody for up to 60 days. Now, persons released on conditions of bail on domestic abuse charges who fail to abide by their conditions of bail are now subject to a 90 day revocation of their bail.

Additionally, as far as Dangerousness Hearings go, a defendant who is deemed to be ‘dangerous’ so that no conditions of release can reasonably assure the safety of the community will be held for a period of up to 120 days.

In dangerousness hearings, it is typical to summons in witnesses, including the victim, to contest whether holding the defendant without bail is appropriate. Under the new Act, defense counsel may not summons in the victim of a crime without first obtaining permission from the court and establishing a “reasonable belief…that the testimony will be material and relevant to support a finding that there are conditions of release that will reasonably assure the safety of any other person or the community.” Not only does this now infringe upon a defendant’s constitutional rights to be afforded a full opportunity to produce witnesses, but also infringes on the person’s right to present evidence on his behalf.

Boston Criminal Lawyer Lefteris K. Travayiakis is available 24/7 for consultation on all Massachusetts Domestic Violence Charges. To schedule a Free Consultation, Click Here to Submit a Contact Request or call 617-325-9500.

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In circumstances where criminal defendants, for whatever reason, elect to change their plea to guilty, the attorney must ensure that the client understands the full panoply of potential consequences that might result. One of the issues that must always be addressed before any change of plea is ensuring that the client, if he is not a citizen, understands the potential consequences of deportation of a conviction.

A conviction for many crimes may lead to deportation, removal from the country, or denial of re-entry, and it is the attorney’s duty to inform the client if the offense for which he pleads guilty to would result in removal. Following certain amendments to the 1952 Immigration and Nationality Act, if a non-citizen commits a removable offense, his removal is essentially inevitable, with a few exceptions.

Where a client elects to plead guilty to those removal offenses, simply advising the client that he is “eligible for deportation” or that he would “face deportation” is not enough.

Rather, the attorney must convey in some way that the plea to guilty and accepting the conviction for whichever removable offense would satisfy the conditions for removal and, under federal law, there would be virtually no avenue for discretionary relief once that fact came to the attention of immigration officials. In other words, the attorney must provide the client with accurate advice about any deportation consequences of change his plea to guilty.

Persons who are non-U.S. citizens and charged with any criminal offense should be proactive and inquire of their attorney what, if any, potential deportation or removal consequences may result should they either change their plea to guilty or be found guilty after trial. Knowing the potential immigration consequences is not only critical in ensuring that you are aware and understand all of your rights and consequences, but the information might also sway your decision whether to proceed to trial or seek a plea bargain on perhaps, reduced and non-deportable offenses.

Boston Criminal Defense Lawyer Lefteris K. Travayiakis is available 24/7 for consultation on all Massachusetts criminal charges.

Contact Attorney Lefteris K. Travayiakis to schedule a Free Consultation or call 617-325-9500.

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The Massachusetts Supreme Judicial Court considered the case of Silva v. Carmel, and decided that an abuse prevention order may issue where the defendant and victim live in the same state facility may not issue.

Both the defendant and the victim in this case were intellectually disabled persons who both resided at the same state-residential facility of the Department of Developmental Services. Following an altercation where the defendant pushed the victim into a bathtub and caused her injuries, the victim applied for and obtained a restraining order from a district court judge. The order was issued for one year following the judge’s finding that both parties resided in the same “household”.

On appeal, the SJC agreed with the defendant that the district court judge was mistaken in issuing the restraining order because the parties (1) did not reside together in the same household as contemplated by the statute; and (2) the relationship of the parties was not of the type the abuse prevention statute set out to protect.

In rationalizing its decision, the Supreme Judicial Court explained that the statute governing an abuse prevention order seeks to protect individuals from abuse by family or “household members” (persons who are married; have children together; reside in the same household; related by blood or marriage, etc.). Persons who simply reside in the same state-run facility do not meet the definition of ‘household members’ because they are connected solely because of their individualized treatment plans, not because of any family connection.

The Supreme Judicial Court also declined to extend the definition of “household members” to include persons living in state-run facilities because doing so might interfere with a department’s to implement service plans and client needs. Additionally, the court was constrained by the definition of “household member” as defined in the statute by the legislature.

Ultimately, the SJC reiterated that the abuse prevention statute’s goal is to prevent abuse or violence within the family unit. It was not enacted to apply to random acts of violence by strangers, or even friend-type relationships.

This doesn’t mean, of course, that persons who are abused or victims of violence by non-household members cannot obtain a restraining order against that person. The Massachusetts Legislature has provided for a mechanism to obtain civil restraining orders against people who are not family or “household” members.

Boston Criminal Lawyer Lefteris K. Travayiakis is available 24/7 for free consultation.

Contact Massachusetts Criminal Lawyer Lefteris K. Travayiakis or call 617-325-9500.

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The Massachusetts SJC unfortunately decided a case, in my opinion, the wrong way. In Commonwealth v. Kevin Keo, the Supreme Judicial Court considered whether the defendant, convicted of first-degree murder, was entitled to a new trial where his attorney failed to obtain a full transcript of a witness’s testimony from a separate trial and where the prosecutor gave two inconsistent closing argument at the two trials as to who the shooter was.

At the defendant’s murder, trial the prosecutor presented a theory of deliberate premeditation and he was convicted by a jury. HIs trial, however, came after the trial of his co-defendant, in which the prosecutor proceeded under the theory that the co-defendant was the shooter. In this case and in the subsequent trial, the prosecutor suggested that the defendant was the shooter – arguably inconsistent theories.

The Massachusetts Supreme Judicial Court, however, held that the defendant’s due process rights were not violated because the Commonwealth proceeded on a theory of aiding and abetting – that he had or shared the intent required to commit the crime of murder. The SJC also pointed out that that, in both trials, the prosecutor stated in his closing argument that it didn’t matter who shot the victim and the evidence was similar in each trial.

In a forceful dissent, however, the court stressed that in circumstances where different theories are presented at separate trials, juries should be informed “that the government at one time believed…that its proof established something different from what it currently claims.”

The dissent further explained that in order for the public to have confidence in the jury system, the government should not be able to make material changes in its version of facts or theories between trials, and then withhold those changes from the jury. The dissenting judges specifically took issue with the prosecutor’s assertion at the first trial that the co-defendant was the shooter; and then asserted that the defendant was shooter at his trial.

The dissent explained that the jury should have been made aware that the government’s initial theory was that the co-defendant was the shooter because this might have bolstered the defendant’s defense that he was not the shooter. Had the jury been provided with this information, it may very well be possible that the jury could have found reasonable doubt and acquitted the defendant.

Despite the result, the majority did strongly advise that prosecutors should “proceed with caution” if they assert inconsistent arguments in different trials concerning the same crime.

Boston Criminal Lawyer Lefteris K. Travayiakis is available 24/7 for free consultation on all Criminal Appeals.

Contact a Massachusetts Criminal Appeals Lawyer or call 617-325-9500.

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In a recent decision in Commonwealth v. Shabazz Augustine, the Massachusetts Supreme Judicial Court ruled that prosecutors seeking access to a defendant’s cellular site location information are first required to obtain a search warrant based on probable cause.

In recent years as the popularity of cell phone use has become so widespread, prosecutors have increasingly sought search warrants of a defendant’s cell phone records from their cell providers. The information commonly sought not only included a defendant’s call list, incoming and outgoing phone calls, text messages and pictures on the phone, but also cell site location information.

Cell site location information, or CSLI, is when a user’s cell phone transmits signals to cell phone towers that ‘ping’ the coordinates of the person’s mobile phone. The cell phone towers assist the cell phone in connecting to a call, and if the person moves closer to a different cell tower, the call is automatically transferred to that closer cell tower. By triangulating these pings, the user’s cell site location information can reveal a specific geographic location of where the phone was on a particular date and time.

When seeking cell phone records, prosecutors would submit a request pursuant to U.S.C. section 2703, which authorizes production from a cell phone provider to disclose records for a particular subscriber. The problem the Massachusetts Supreme Judicial Court found was that the standard required under section 2703(d) is something “less than probable cause.”

In its decision, the court confirmed that the cell site location information, i.e., tracking the location of an individual cell phone user, implicates privacy concerns. In other words, persons do have a reasonable expectation of privacy in their cell site location information and as such, the warrant requirement of Article 14 of the Massachusetts Declaration of Rights applies.

Tracking a person’s movement, therefore, through cell phone records and cell site location information, is of the type of privacy interest that would require government to obtain a search warrant establishing probable cause justifying the issuance of the warrant.

So how does this case apply to those defendant’s that had their cell site location information obtain prior to this decision?

The court, in announcing the new rule requiring prosecutors to obtain a warrant establishing probable cause in order to be provided with cell site location information, applies prospectively to cases in which a defendant’s conviction is not final. In other words, a defendant whose case has not yet been finalized and/or is pending on direct appeal in which this issue was raised may take advantage of this decision. Unfortunately, for those cases where the defendant has exhausted his/her appellate rights, this decision does not help them.

Boston Criminal Lawyer Lefteris K. Travayiakis has extensive experience in representing persons charged with Major Felony Crimes in Massachusetts, as well as litigating Motions to Suppress; and he is available 24/7 for consultation.

To schedule a Free Consultation, Click Here to Contact a Massachusetts Criminal Defense Attorney or call 617-325-9500.

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The Massachusetts Supreme Judicial Court today decided the case of Commonwealth v. Michael Robertson and considered the issue of whether secretly photographing or videotaping a person in a nude or partially nude state is illegal. The court ruled that it is not.

The defendant in this case was charged under M.G.L. c. 272, section 105, “Photographing, Videotaping or Electronically Surveilling Partially Nude or Nude Person”, which states in part:

“Whoever willfully photographs, videotapes or electronically surveils another person who is nude or partially nude, with the intent to secretly conduct or hide such activity, when the other person in such place and circumstances would have a reasonable expectation of privacy in not being so photographed or videotaped…and without that person’s knowledge and consent…”

The defendant here, while a passenger on a trolley in Boston, allegedly used his cell phone to photograph the woman’s upper thigh who was seated across from him. Another passenger who saw what the defendant was doing reported it to the police and the woman later acknowledged that she did not know she was being photographed.

Later on that same date, another female passenger noticed the defendant taking a photo of her crotch area. Using her own cell phone, she took a picture of the defendant photographing her.

In reaching its decision, the Massachusetts Supreme Court analyzed the language of the statute that reads “…another person who is nude or partially nude.” The court distinguished between secretly photographing partial nudity and someone who is partially nude. In other words, the court explained that, as written, the statute prohibits the secret taking of a photograph of someone who is in a nude or partially nude state, and NOT secretly taking a photograph of partial nudity.

Put another way, the court interpreted the phrase “partially nude” to mean someone who is partially clothed and who has one or more of his/her body parts exposed at the time the secret photograph is taken. Analyzing the facts of this particular case, the court went on to specifically explain that a female passenger on a train, who is wearing a skirt or other clothing covering her body, is not a person who is “partially nude”, irrespective of what is or not on underneath.

Obviously, the purpose of this law was to prevent “Peeping Tom’s” from taking voyeur type secret photographs of person’s private areas, but the statute as written does not appropriately proscribe that conduct. Given the court’s ruling and interpretation of the statute as written, it would now be up to the legislature to revisit and amend the language in the statute.

Boston Criminal Lawyer Lefteris K. Travayiakis is available 24/7 for consultation on all criminal legal matters, including Massachusetts Sex Crimes and Criminal Appeals.

To schedule a Free Consultation, Click Here to Contact a Massachusetts Criminal Appeals Lawyer or call 617-325-9500.