August 23, 2014

New Massachusetts Domestic Violence Act


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.

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May 9, 2014

Sufficiently Advising a Client of Immigration Consequences Upon Change of Plea


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.

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April 29, 2014

SJC Rules Persons in Same Residential Facility Cannot Obtain Restraining Orders Against The Other


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.

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April 15, 2014

Murder Defendant Denied New Trial Despite Prosecutor's Inconsistent Closing Arguments


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."

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March 12, 2014

Mass. SJC Rules Probable Cause Required to Obtain Cell Site Location Information


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.

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March 5, 2014

Massachusetts SJC Rules Peeping Tom "Upskirting" Not Illegal


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.

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December 30, 2013

Federal Judge Says NSA Data Gathering Constitutional


A New York federal judge ruled that the United States government's phone gathering system is constitutional and a necessary measure to combat possible terrorist attacks against the country. The judge further ruled that Congress was within its rights to establish the system and that it does not violate any citizen's constitutional rights.

Notably, this New York decision is contrary to the rulings of a Washington D.C. judge who held earlier in December that the program is likely unconstitutional. Essentially, one judge found that the NSA program is successful in thwarting potential terrorist attacks before they come to fruition; while the other judge ruled that he was not convinced that the program was producing any results at all. Given the contrary rulings and expected appeals in both cases, the issue will likely find its way to the United States Supreme Court at some point.

The New York federal court judge based his decision on several points, including reliance on a 1979 U.S. Supreme Court ruling that held that individual telephone consumers do not have privacy rights in the data that the company retains regarding their use of service.

He also ruled that Congress has complete discretion to grant power to the government to conduct secret surveillance; and that there is violation of individual privacy rights in the program developed by the NSA. In so holding, he concluded that the telephone data collected by the NSA does not belong to the individual consumers, but to the telephone companies themselves.

Obviously, there is still tremendous debate about the constitutional and privacy issues surrounding the NSA data gathering program. What is clear, however, is that there is no definitive legal authority on whether the program is constitutional or not. Until the issue reaches the United States Supreme Judicial Court, each jurisdiction will be deciding the issues inconsistently.

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December 11, 2013

Issues Following Arrest: Exercising Your Right to an Attorney and To Remain Silent


The Massachusetts Declaration of Rights and the United States Constitution afford every citizen with certain fundamental rights, including the right to remain silent and assert one's privilege against self-incrimination. Just about everyone has heard of that right, but believe it or not, many people charged with a crime either don't exercise it, or don't properly assert.

The United States Constitution states that "no person shall be compelled in any criminal case to be a witness against himself." Accordingly, every person subjected to a custodial interrogation must be warned that he (1) has a right to remain silent; (2) any statement he makes can be used as evidence against him; (3) that he has a right to consult with an attorney and that if he cannot afford one one will be appointed; and (4) that if he does choose to speak, that he has a right to stop questioning at any time. Once these warnings are provided, a defendant's subsequent statements are only admissible as evidence against him at trial if the government shows, by proof beyond a reasonable doubt, that the defendant gave a knowing, voluntary and intelligent waiver of those rights.

Against this backdrop, it's not enough to just tell the police that you "might" want to speak with a lawyer or are "considering" consulting with an attorney. Police are only required to stop questioning upon a clear and unambiguous request for counsel. In other words, the invocation of the right to an attorney must be sufficiently clear that the police officer understands the statement to be a request for a lawyer.

Yes, it may appear all too simple to simply say "No more questions, I would like to speak to a lawyer at this time" or words to that effect, but all too often that is not case. Whether because of duress of the circumstances and being under interrogation; the person's lack of knowledge or experience in the justice system or mere ignorance, it is all too common to see people who did really want to consult with a lawyer but unfortunately didn't properly assert their request so that the police stopped questioning them.

In fact, the Massachusetts Supreme Judicial Court has considered a wide variety of circumstances where the person's request for an attorney was too "ambiguous", thereby ruling that the request to stop questioning was sufficient. For example, the statement to police "I might need a lawyer and want to talk with him before talking to you" was held not to be a proper invocation of the right to counsel.

Accordingly, persons who find themselves in police custody and subject to an interrogation should unambiguously and clearly invoke their right to counsel and to remain silent by stating "I do not want to answer any questions until I first speak with a lawyer."

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September 8, 2013

Boston Man Charged with Drug Dealing in Weymouth


A 20 year old man from Boston was arrested this past Thursday on Massachusetts Drug Charges in Weymouth. He was charged with Drug Distribution, Possession with Intent to Distribute a Controlled Substance, Conspiracy to Violate the Drug Laws, and Resisting Arrest.

According to the Weymouth Police Department, the defendant was alleged to have engaged in a drug transaction with a Weymouth man at a home on Pierce Road. That man was arrested on similar drug charges. Police had received tips about alleged drug dealing at that address.

One of the most important steps in defending any drug case is evaluating the specific facts and circumstances involving the person's arrest. Anyone who has been the subject of a search to their person or property by police can challenge that search under the United States Constitution and the Massachusetts Declaration of Rights.

If a challenge to the search of the person and the seizure of contraband is successful, then the court can suppress or exclude whatever item was seized as a result of the constitutional violation. For example, if the police stopped someone on the street and search them without reasonable suspicion or probable cause, then the drugs, guns or whatever else illegal was recovered could be thrown out of the case.

Cases involving searches and seizures depend on very specific fact patterns and legal issues. It is important that you have a qualified and experienced attorney evaluate your case and examine any constitutional issues very closely.

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September 5, 2013

Somerville Soccer Rape Suspect Charged with Aggravated Rape of a Child


A Somerville High School student was arraigned yesterday on several Massachusetts Sex Crimes Charges, including Aggravated Rape of a Child in connection with the alleged sexual assault of another young high school athlete with a broomstick.

A total of three Somerville students who were attending a retreat in the Berkshires at Camp Lenox and allegedly sought out three other students and attempted to assault them. The students were members of the Somerville's soccer team and several other students who were participating at a summer camp at Camp Lenox in Otis.

Police allege that the three students took a broomstick to rape and sexual assault a freshman student; and also tried to do the same to two other students but they were able to escape. According to prosecutors, blood and other evidence was recovered from the scene.

The three students, all juniors, were charged with a variety of sexual assault charges, including indent assault and battery on a person; aggravated rape of a child; assault with intent to rape; intimidation of a witness; and assault and battery with a dangerous weapon.

The crime of aggravated rape is charged where, in addition to the rape of a person, the act committed also resulting in serious bodily injury to the person; was committed by joint venture; or was committed during the commission or attempted commission of another crime.

As with most Massachusetts sex crimes, a conviction for aggravated rape will subject the defendant to sex offender registration and possibly other collateral sex crime consequences.

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August 17, 2013

Waltham Man Charged with Murder in Stabbing Death


Jared Remy, of Waltham, was charged this week in Waltham District Court with Massachusetts Murder Charges in connection with the stabbing death of his girlfriend, Jennifer Martel.

According to the Middlesex County District Attorney's Office, Waltham Police officers responded to a 911 call at Remy's apartment and found what they described as a scene indicating a struggle inside and outside of the home. Ms. Martel, according to police, was located on the patio outside with multiple stab wounds.

A neighbor, identified by the Boston Globe as Benjamin Ray, told the media he witnessed the incident; that Remy was repeatedly stabbing her with a knife. He told reporters that he tried to stop it but it wasn't enough.

Several reports have since surfaced that suggest that there had been prior incident of alleged domestic violence involving Remy and Jennifer Martel, including a pending Waltham District Court case for domestic assault & battery that Remy had reportedly been arraigned on earlier this week.

Remy pled not guilty to the Murder Charges, which is punishable by life imprisonment.

In Massachusetts, first degree murder can be charged where the act is committed with either deliberate premeditation and malice; or extreme atrocity or cruelty with malice.

However, some circumstances may present themselves in this case that might lessen this defendant's culpability for the alleged act. Some examples of mitigating circumstances may include heat of passion upon reasonable provocation; sudden combat; or excessive force in self-defense.

In order to be convicted of voluntary manslaughter, the prosecutor would have to prove, beyond a reasonable doubt, that (1) the defendant intentionally inflicted injuries likely to cause death; and (2) that the defendant acted unlawfully. The penalty for imprisonment upon conviction for voluntary manslaughter is commitment to state prison for up to 20 years.

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August 12, 2013

Accosting Person of Opposite Sex Requires Sexually Offensive Conduct


The Massachusetts Appeals Court recently reversed the conviction of a man who was convicted of Annoying or Accosting a Person of the Opposite Sex where the government failed to provide proof that the alleged conduct involved a sexual element.

The prosecution alleged that the defendant approached a woman and tried repeatedly to converse with her. She ignored his attempts and the defendant then left in his car. Sometime later, the defendant again approached the woman and ordered her to get in the car. Eventually, the defendant drove away, but not before the woman was able to get the man's license plate.

Following trial, the defendant was convicted with having Annoyed or Accosted a Person of the Opposite Sex and appealed.

The Appeals Court reversed the conviction, holding that although the defendant's conduct "may have been offensive in a generic sense", it did not comport with the legal definition of "offensive" under the law.

Under the statute, in order for the conduct to be "offensive", it must have caused displeasure, anger or resentment and was "repugnant to the prevailing sense of what is decent or moral. Whether the conduct is "decent or moral" suggests an intent to reach sexually explicit acts or language.

In this case, the appeals court found, although the conduct was offensive in the general sense, it was devoid of any sexual content, and the evidence was therefore insufficient to prove the crime.

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July 15, 2013

Can a Defendant's Pre-Arrest Silence Be Evidence of Consciousness of Guilt?


In the case of Salinas v. Texas, the United States Supreme Judicial Court recently considered the question of whether a defendant's pre-arrest silence, prior to being placed in custody or receiving Miranda warnings, can be used against him in a subsequent criminal prosecution as evidence of consciousness of guilt.

In this case, prior to being taken into custody, the defendant voluntarily answered some questions from police about a murder. After answering several questions, the defendant remained silent when he was asked whether any ballistic evidence testing would yield matches between his shotgun and the shell casings found at the crime scene. Rather than answer, the defendant remained silent, shuffled his feet, and bit his lip.

After being silent for several moment, he then continued answering other questions from the police.

At trial for murder, the prosecution introduce evidence of the defendant's silence as evidence of consciousness of guilt.

The United States Supreme Judicial Court held that, in circumstances of pre-arrest and where a person has voluntarily chose to speak with police, merely being silent does not automatically assert your 5th Amendment Rights. Rather, the person being questions must expressly invoke the 5th Amendment Protection, i.e., right to remain silent, otherwise it is not invoked and prosecutors may then use that silence against the person at trial.

The court wrote:

"A witness's constitutional right to refuse to answer questions depends on his reasons for doing so and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim..."

In this regard, the U.S. Supreme Court rejected the argument that a person's silence should be understood as a Fifth Amendment plea because most people do not know the law.

The Massachusetts Declaration of Rights, however, offers greater protection to criminal defendants. In similar circumstances, the Massachusetts Supreme Judicial Court has previously suggested that a defendant's pre-arrest silence should not be used as evidence of consciousness of guilt.

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July 13, 2013

Massachusetts Prosecutors Crossing the Line in Closing Arguments


In the case of Commonwealth v. Joshua Lewis, the Massachusetts Supreme Judicial Court recently emphasized the limitations prosecutors are required to abide by when arguing their cases before juries.

In that case, the defendant was charged with assault with intent to murder and several firearms offenses after being shot and wounded by a Massachusetts State Police Trooper. At trial, the defendant's attorney argued that the defendant did not have a gun, fired at the defendant without justification, and then placed a gun where the defendant was laying.

In closing arguments, the prosecutor made statements to the jury that the defendant was a "street thug" and even went so far as calling the defendant's attorney a liar; and the defendant's theory of defense a "sham".

An except of the prosecutor's closing went like this:

"The entire defense in this case, I'd suggest to you, is a sham."
"[what about] the wad of money in his front pocket. Of course, all us unemployed people have a big wad of money in our pocket. Where's my money? They are street thugs who are out, and that they're going to do with those guns, luckily, we didn't get a chance to find out."
"It's the arrogance of street thugs that gets you in this case."
"As you look over all of this evidence...[it] will be obvious to you that the lies came from [the defense] table. And I'm not leaving out the attorney either..."

The defendant's convictions for the crimes of assault with intent to murder and firearms offenses were reversed by the Massachusetts SJC as a result of these improper comments made by the prosecutor to the jury.

In Massachusetts criminal trials, prosecutor are permitted to argue forcefully for a conviction based on the evidence, but it is improper to refer to: the defendant's election to not testify; misstate evidence or refer to facts not in evidence; interject personal belief in the defendant's guilt; play on racial, ethnic, or religious prejudice; play on the jury's sympathy or emotions; or comment on the consequences of a verdict.

Aside from being completely unprofessional, a prosecutor may also certainly not personally disparage the attorney or infer that the attorney is somehow misleading the jury.

In the same way, it is improper for prosecutors to repeatedly refer to the defendant as a "street thug", as this characterization encourages the jury to find the defendant guilty by virtue of his purported association with known criminals. Particularly in cases where there was no evidence of any such illicit associations, these arguments are extremely prejudicial to the defendant and may rise, as in this case, to the level of requiring reversal of the convictions.

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July 11, 2013

Can Police in Massachusetts Take a Person's DNA After Arrest?


In a recent case involving a constitutional challenge to seizing a person's DNA without his consent, the United States Supreme Judicial Court, in Maryland v. King, considered whether it is a constitutional violation for police officers to take a defendant's DNA as part of the normal booking procedure following an arrest. This was authorized by a statute enacted in Maryland.

In that case, the defendant was arrested on assault charges. During the booking process, officers used a cheek swab to take a DNA sample from the defendant. The swab was ultimately matched to an unsolved 2003 rape, and the defendant was charged with that crime as well.

The defendant moved to suppress the taken of his DNA without his consent or without a court order, and the case eventually made its way to the United States Supreme Court, which held that:

When police make an arrest supported by probable cause for a serious offense and the suspect is detained at the police station, it is reasonable under the 4th Amendment of the United States Constitution to take and analyze that persons DNA. This, the court held, is a legitimate booking procedure, much like taking a person's fingerprints or photographing the defendant.

Incredulously, the United States Supreme Court majority held that a buccal swab for the taking of DNA evidence is a relatively slight intrusion on the privacy interests of a person; while also ensuring the government's interest in accurate identifying those persons arrested.

Notably, Justice Scalia ripped the decision in his dissent, inferring that the real reason the police take a person's DNA is not to identify them, but to solve crimes.

Despite the Supreme Court's rulings, the Massachusetts Declaration of Rights generally affords greater constitutional and privacy protection for its citizens. With respect to the taking of DNA evidence, no Massachusetts statute permits police officers to routinely take a person's DNA as part of the booking process.

Rather, the taking of a person's DNA without his consent may only be compelled by court order or upon conviction by statute. Massachusetts General Laws Chapter 22E, Section 3, mandates that any person convicted of a felony must submit their DNA to be included into the state's database.

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