Articles Posted in Criminal Constitutional Law

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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 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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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.

Massachusetts Criminal Lawyer Lefteris K. Travayiakis is available 24/7 for free consultation. Click Here to Schedule a Free Consultation or call 617-325-9500.

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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.”

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

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

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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.

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

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

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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.

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

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

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The Massachusetts Rules of Criminal Procedure establish time limitations as to when a criminal defendant is charged and to be brought to trial, and these protections are guaranteed in the United States Constitution and the Massachusetts Declaration of Rights.

But in many criminal cases, there are a variety of delays that often occur. Delays can result from simple discovery or evidentiary issues; witness issues; or in some cases, neglect.

By way of background, defendants are protected from potential criminal charges through the Statute of Limitations or where the initiation of criminal charges are delayed. By statute. Massachusetts General Laws Chapter 277, Section 63, many felonies must be charged within 10 or 15 years from the date of the commission of the alleged crime. The exception is murder, however, for which there is no statute of limitation. By contrast, most misdemeanor offenses must be charged within 6 years from the alleged commission of the crime.

Generally (with some exceptions and variations), the statute of limitations begins to toll (starts running) upon the completion of every element of the criminal offense.

Against this backdrop, a defendant’s speedy trial rights, more specifically defined in Rule 36 of the Massachusetts Rules of Criminal Procedure, establish time limits for when a case should proceed to trial. Because criminal cases can vary in complexity, there are different time limits for cases that are non-complex (drug cases); somewhat complex (cases that might involve forensic evidence or unique evidentiary issues; and complex (murder, rape, etc.).

Rule 36 essentially mandates that all criminal defendants are guaranteed a trial within 12 months from arraignment. If the 12 months period expires without a trial, a defendant may petition the court to have the charges dismissed, which would bar prosecution for this offense.

However, simply because a criminal case went beyond the 12 month period without a trial does not guarantee that the case will be dismissed. The government may rebut the motion to dismiss by offering evidence that certain delays in the case were excusable.

Excusable delays or “excluded periods” of time can arise from any circumstances that was not the result of the conduct of the prosecution; or where those delays benefited the defendant or he agreed to such delays. A delay benefitting the defendant and that would thereby be ‘excluded’ from the computation for purposes of speedy trial issues include: unavailability of a witness or even the defendant; competence to stand trial; continuances that were granted by the court that were at the request of the defendant or upon the court’s own motion; and some other extraordinary circumstances.

So when does the clock start ticking for purposes of speedy trial issues?

Under Article 11 of the Massachusetts Declaration of Rights, the clock starts ticking when a criminal complaint issues against the defendant.

Courts scrutinize speedy trial violations very carefully and, more often in not, the calculations do not benefit the defendant, particularly when the “excluded time period” is calculated. Nonetheless, extraordinary circumstances do present themselves in some cases.

Boston Criminal Lawyer Lefteris K. Travayiakis is available 24/7 for consultation on all Massachusetts Misdemeanor and Felony Charges.

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 recently decided a case involving a challenge to the constitutionality of a statute that criminalizes the Improper Storage of a Firearm.

G.L. c. 140, section 131L(a), which criminalizes the improper storage of a firearm that is not within the immediate control of the owner. By law, a firearm that is not within the immediate control of its owner must either be kept in a locked container equipped with a trigger lock.

In the case of Commonwealth v. John McGowan, the defendant was a licensed to carry firearms. He kept the firearm, however, loaded in his bedside table.

One evening, he got into an argument with his roommate, who took the firearm and tossed it outside in the bushes. The defendant called 911 and when police responded, they found the gun in the bushes. He was later charged with Improper Storage of a Firearm.

The defendant moved to dismiss the charges on the basis that the statute was unconstitutional as a result of the United States Supreme Court’s decisions in District of Columbia v. Heller and McDonald v. Chicago.

The United States Supreme Court in Heller held that the Second Amendment to the United States Constitution protects the right of citizens to possess a handgun in the home for the purpose of self-defense. In so doing, the court ruled that the District of Columbia’s ban on handguns was unconstitutional.

In McDonald v. Chicago, the United States Supreme Court held that the Second Amendment right, as explained in Heller, was incorporated into the Fourteenth Amendment and was therefore applicable to the states.

In a previous case of Commonwealth v. Runyan, the Massachusetts Supreme Judicial Court held that although a complete ban on the possession of all firearms would not be constitutional, Massachusetts is legitimately able to limit that right by requiring that all firearms that are not in the immediate possession or control of the owner or user be properly stored.

The question then became, does requiring that a firearm within the home be properly stored or locked infringe upon a citizens’ constitutional right of self-defense?

The Massachusetts Supreme Judicial Court said no. Although a person’s right to exercise self-defense might be delayed as a result of having the firearm in a locked container or equipped with a trigger lock, the requirement, whose purpose is to prevent accidents, does not invalidate the storage requirements.

The court explained that because the requirement that a firearm not within the immediate control of the owner/user be locked or equipped with a trigger lock is designed to prevent unauthorized access to the firearm, the statute is consistent with the right to bear arms of the Second Amendment in self-defense in one’s home.

Boston Criminal Lawyer Lefteris K. Travayiakis is available 24/7 for free consultation on all criminal charges, including post-conviction matters and Massachusetts Criminal Appeals.

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

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The Massachusetts Supreme Judicial Court recently considered whether the admission of a 911 call at trial was proper where the caller did not testify at trial, and whether admitting the call violated that defendant’s constitution right of confrontation.

In this case, the defendant was charged with two counts of Assault & Battery, and prior to trial, moved to preclude the prosecutor from admitting the 911 call, in which the caller identified his as the perpetrator, and alleging that he had just beaten her.

By way of background, in the case of Crawford v. Washington, the United States Supreme Court ruled that the Confrontation Clause of the Sixth Amendment barred the admission of statements of witness who did not appear at trial [unless they were unavailable to testify and where the defendant had had a previous opportunity to cross-examine them].

However, in Davis v. Washington, the United States Supreme Court, defining what constitutes a ‘testimonial statement’, ruled that statements are not testimonial if they were made under circumstances to enable police assistance to an ongoing emergency. In contrast, statements are testimonial when their primary purpose is to establish or prove events relevant to a criminal prosecution.

In this case, the Massachusetts Supreme Judicial Court ruled that the 911 caller’s statements were made in the course of an ‘ongoing emergency’, and that therefore her statements was non-testimonial in nature; and not, in other words, under circumstances to prove the facts for a criminal prosecution.

The prosecutor, therefore, was permitted to introduce the 911 call, even though the caller did not testify at trial, and according to the Massachusetts Supreme Judicial Court, this did not violate the defendant’s constitutional Right of Confrontation under the Sixth Amendment.

Boston Criminal Lawyer Lefteris K. Travayiakis is available 24/7 for consultation on all Massachusetts Crimes of Violence Charges, including Assault & Battery.

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

Attorney Lefteris K. Travayiakis may also be reached at lefteris@travayiakis.com.