Articles Posted in Criminal Constitutional Law

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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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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 ruled that it is reversible error and improper for a prosecutor to suggest the defendant had the opportunity to tailor his testimony and lie because he had heard the other witnesses during trial.  This issue was addressed in Commonwealth v. Alphonse, and because the error was reversible, the defendant’s conviction was reversed.

The defendant was tried for the crime of assault & battery in the Brockton District Court.  During closing arguments, the prosecutor argued:

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The Massachusetts Supreme Judicial Court considered whether evidence or documents that were provided to an attorney by the client are obtainable by prosecutors from the attorney via subpoena.  The question, the court ruled, depends on whether or not the the evidence was provided to the attorney for purposes of legal assistance.

This case involved circumstances where the defendant was the subject of a grand jury investigation who, in the course of seeking legal advice, had given his phone to his lawyer.  The government, on behalf of the grand jury, obtained an order from a superior court judge ordering the attorney to produce the phone so that the grand jury could examine its contents.  The attorney refused to honor the superior court judge’s ordering him to do so and the appeal reached the Supreme Judicial Court. Continue reading →

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The Massachusetts Supreme Judicial Court addressed the issue whether a defendant, who was the object of the police investigation, may still move to suppress evidence seized from the co-defendant under the theory of “target standing”.  Target standing is a legal theory that permits a defendant, who is charged with a possessory offense, such as unlawful possession of drugs or guns, to challenge the lawfulness of the seizure of that evidence even though it may have been seized by police from a co-defendant or other third-party.

In the case of Commonwealth v. Santiago, the SJC held that, a challenge to the suppression of evidence on the theory of target standing does not apply unless the defendant is charged with a possessory offense, even though he may have been the primary suspect in the police investigation. Continue reading →

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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.

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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.

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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.