Boston Criminal Lawyers Blog
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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.

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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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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.

Boston Criminal Lawyer Lefteris K. Travayiakis is available 24/7 for all Massachusetts Drug Crimes Charges, including Drug Distribution and Possession with Intent to Distribute Drugs.

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

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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.

Boston Criminal Lawyer Lefteris K. Travayiakis is available 24/7 for consultation on all Massachusetts Sex Crimes Charges, including aggravated rape, indecent assault and battery, and assault with intent to rape.

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

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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.

Boston Criminal Lawyer Lefteris K. Travayiakis is available 24/7 for consultation on all Massachusetts Murder Charges, including first degree murder, second degree murder, and manslaughter charges.

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

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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.

Boston Criminal Lawyer Lefteris K. Travayiakis is available 24/7 for consultation on all Massachusetts Sex Crimes Charges, as well as all Criminal Appeals.

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