Articles Posted in Criminal Defense

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Over the last several years, the Massachusetts criminal justice system has been rocked by misconduct in state-run drug labs. First, and so far most significant, Annie Dookhan, a chemist at the Hinton State Lab in Jamaica Plain, tainted over 42,000 state convictions by employing several different scientific shortcuts to boost her efficiency and productivity. Rather than meticulously testing each sample to determine whether or not it contained cocaine, heroin, or other suspected drugs, her practices over several years included “dry-labbing,” or combining samples from different cases and testing them all at once, then recording the results under each case; fabricating records that she tested and calibrated lab equipment as required by protocol, in order to save time; and contaminating samples that tested negative with drugs so that they would test positive. The Supreme Judicial Court has addressed cases involving Dookhan several times already. As if this were not disturbing enough, a second chemist at a different state lab, Sonja Farak, undermined the integrity of thousands of drug cases in Western Massachusetts over 8 years by using methamphetamine, cocaine, and a variety of other drugs while at work; stealing and consuming both standard comparison drug samples and drugs that were seized by police; and using lab equipment to manufacture crack cocaine. Between Dookhan and Farak, prosecutors have (presumably unknowingly) used fabricated or unreliable evidence to convict or induce guilty pleas from thousands of people in Massachusetts. Continue reading

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Like that of many states, Massachusetts law provides for enhanced criminal penalties for specified drug offenses committed in close proximity to parks or schools. Defendants who commit such offenses in so-called “school zones,” which the statute defines as any location within 300 feet of a school of any kind, including any public or private accredited preschool or Head Start facility, or a “park zone,” defined as any location within 100 feet of a public park or playground, at any time of day except between the hours of midnight and 5 a.m., are subject to a mandatory two year sentence, on top of any punishment imposed for the underlying crime. The statute is explicitly clear that “lack of knowledge of school boundaries” is not a defense; a person who is found to have committed a drug offense within the stated distance from a school is subject to the enhanced penalty regardless of whether they knew of the school’s location or even of whether the school was easily recognizable as such (an issue with some preschools and Head Start facilities, which are often located inside larger buildings primarily devoted to other purposes.) As draconian as this law remains, it is actually an improvement on the version of the law in place until 2012, under which “school zones” included any location within 1,000 feet of a school, regardless of the time of day.

In its decision in Commonwealth v. Peterson, issued on January 3, 2017, the Supreme Judicial Court (“SJC”) set a limit on the statute’s application for the first time. In Peterson, the defendant was a passenger in a car with three other people. When the car stopped at a traffic light at an intersection near a public park, the police officers in the car behind it determined that its inspection sticker had expired. They pulled the car over shortly afterward, at a location that was no longer within one hundred feet of the park. The ultimate results of the stop were the discovery of drugs and a semi-automatic weapon, and the arrest of the defendant, who was charged with a number of crimes including a violation of the school zone statute.

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In my last blog post, I discussed some of the steps Massachusetts has taken in recent years to reform the state’s criminal justice system and the problems that remain in that system.  In this post, I will discuss some reforms that Massachusetts should enact in the next legislative session.

For starters, Massachusetts must abolish mandatory minimum sentencing for drug offenses once and for all.  Despite the liberal political leanings of many in state government, the state’s District Attorneys somehow remain staunchly opposed to any such reform.  According to the title of a 2015 letter in the Boston Globe signed by nine of the Commonwealth’s DAs: “Opponents of mandatory minimum sentencing fail to account for reality.”  That’s a bold choice of headline, particularly once you consider that those reality-ignoring opponents include Supreme Judicial Court Chief Justice Ralph Gants, who systematically tore apart the arguments in favor of mandatory minimums in a 2015 speech at UMass-Boston, as well as Catholic leaders from across the Commonwealth. Continue reading

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At the federal level, efforts at criminal justice reform have been trapped in a legislative logjam.  Despite considerable bipartisan consensus on the subject – including the backing of the notorious Koch brothers, who fund Republican candidates across the country – no significant legislation has passed through the United States Congress.  That, despite the fact that the United States currently houses 2.2 million people in our prisons and jails.  That translates to an incarceration rate of 693 per 100,000 people – a rate far in excess of Iran, Zimbabwe, and Singapore.  A recent report by the Brennan Center for Justice concluded that 576,000 people who are currently incarcerated could be freed with little-to-no impact on public safety, at a savings of $20 billion annually.  According to the report, 364,000 prisoners could be subject to alternatives to incarceration – treatment, community service, or probation – while another 212,000 have already served lengthy prison terms and could be directly released into the community.

At the federal level, the only steps to remedy the effects of our draconian system have come from the executive branch.  Attorneys General Holder and Lynch have told their line prosecutors to pursue fewer mandatory minimum sentences, and Holder urged the U.S. Sentencing Commission to apply a recent reduction in drug sentences retroactively to reduce the sentences of thousands of those currently incarcerated.  In addition, President Obama has commuted the sentences of 1,176 prisoners and issued 148 pardons – far more than any other president in history.  But even those historic numbers are a mere drop in the proverbial bucket.  With a federal prison population of 190,058 inmates, Obama’s clemency numbers constitute about 0.6% of that group.  Those numbers will likely increase a bit before January 20th, but executive clemency is a poor substitute for true legislative reform. Continue reading

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Early one morning in 2013, Verissimo Tavares fled the Boston Police on his motor scooter, and in the process tossed away what turned out to be a gun.  He was charged and convicted in federal court of the crime of being a felon in possession of a firearm, and was sentenced to seven years, which was a “departure” from the recommended sentence of 10-12 ½ years that the federal sentencing guidelines prescribed.

Had Mr. Tavares been a newcomer to the criminal justice system, the guidelines would have produced a recommended sentencing range of between 3 and 4 years.  His history, and in particular his previous convictions of “crimes of violence” doubled his sentence and could, without the departure, have tripled it.  In particular, Mr. Tavares had previous convictions for resisting arrest and for assault and battery with a dangerous weapon, and both of those convictions were considered “crimes of violence” by the sentencing judge, with the result that his sentencing range skyrocketed.

Not surprisingly, Mr. Tavares appealed, and the First Circuit took up, for the umpteenth time, the question of what constitutes a “crime of violence” with a substantial impact on how much time a convicted defendant will have to serve. Continue reading

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We have previously covered on the blog the implications of Massachusetts initiatives regarding marijuana and the interaction between Federal and state drug laws. In 2008, voters decriminalized the possession of an ounce of marijuana under state law. In 2013, voters set up a system for the medical use of marijuana in Massachusetts. Possession, distribution, or use of marijuana in any form remains illegal under Federal law, and the Federal Drug Enforcement Administration recently reaffirmed the placement of marijuana on Schedule I, meaning that it has “no currently accepted medical use,” a “high potential for abuse,” and a “lack of accepted safety for [its] use.” However, in 2014 Congress enacted into law an Obama administration policy permitting states to implement medical marijuana laws, giving a subtle positive signal at least for medicinal use of marijuana.

This week, Massachusetts voters again gave the green light to marijuana reform in the form of Question 4. Question 4 is long and complex, but we can summarize some of its most important provisions. Under Question 4, starting on December 15, 2016, it will no longer be illegal under Massachusetts state law for anyone 21 years old or older to possess an ounce or less of marijuana, or up to 5 grams of marijuana concentrate. Within one’s own home, an adult over 21 is permitted to possess up to 10 ounces of marijuana, grow up to 6 marijuana plants (up to a total of 12 plants at a time for two or more people), and possess any marijuana grown on the premises. Individuals committing these acts are protected against any criminal or civil penalties under state law; by contrast under current state law possession of marijuana without appropriate medical documentation is at least a civil infraction with a $100 fine, and cultivation or possession of more than an ounce is criminal.

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In June, Supreme Court Justice Sonia Sotomayor attracted attention for her dissent in Utah v. Strieff.  In that case – which held that a court need not suppress the fruits of a suspicionless stop if the individual has a pre-existing warrant for their arrest – Sotomayor wrote that the Court’s opinion would encourage more baseless stops and thus “risk treating members of our communities as second-class citizens.”  Setting aside legalese, Sotomayor cited the authors W.E.B. Du Bois, James Baldwin, and Ta-Nehisi Coates, and discussed the humiliation that people of color experience due to their disproportionate targeting by the criminal justice system.  She ended her opinion with the following passage:

We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. See L. Guinier & G. Torres, The Miner’s Canary 274-283 (2002). They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but. Continue reading

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Since the United States Supreme Court’s landmark decision in Gideon v. Wainwright, 372 U.S. 335 (1963), the right to assistance of counsel in criminal proceedings has been fundamental in protecting due process rights of criminal defendants.  However, the Supreme Court has repeatedly rejected arguments that the right to counsel should extend to pre-charge proceedings such as questioning by police.  The Court has consistently limited the Sixth Amendment right to counsel to proceedings occurring after a formal charge has been brought, as it did in Moran v. Burbine, 475 U.S. 412 (1986), where it upheld a defendant’s conviction although police concealed from him that an attorney was attempting to reach him before he was questioned and confessed.

In Comm. v. Brazelton, 404 Mass. 783 (1989), the Supreme Judicial Court held that there was no right to counsel under Art. 12 of the Massachusetts Declaration of Rights when deciding whether to submit to a breathalyzer test, and adhered for Art. 12 purposes to the federal Sixth Amendment limits:  the right to counsel under the state constitution, as under the federal constitution, comes into being only when formal criminal proceedings commence against a person in court.  In Comm. v. Neary-French, (No. SJC-12057, August 16, 2016), the SJC revisited the issue.  The defendant in Neary-French argued that an amendment to the Massachusetts OUI statute subsequent to Brazelton, which makes it a per se crime to operate a motor vehicle with a blood alcohol content exceeding .08, made the decision whether to submit to a breathalyzer test a critical stage in a criminal prosecution.  If that were the case, Art. 12 would require the assistance of counsel in making the decision.  The Court rejected the argument and reaffirmed that Art. 12, like the Sixth Amendment, assures the assistance of counsel only after formal charges are brought. Continue reading

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Dr. Roger Ian Hardy, a Massachusetts fertility specialist, was a recent beneficiary of the Massachusetts definition of rape, as “sexual intercourse with another compelled by force and against the victim’s will or compelled by threat of bodily injury.” Dr. Hardy has been accused of molesting multiple female patients during gynecological exams and procedures, under the guise of providing medical treatment. As horrifying as the allegations are, the Middlesex County District Attorney has stated that no charges will be brought, due to what the Boston Globe calls an “apparent gap” in the law. At least as to the crime of rape, that conclusion is probably legally correct—but legislators should be careful, if they seek to close that gap, not to create deeper problems by sweeping all sex that results from any form of deception into criminal conduct.

Massachusetts courts have held that obtaining sex through fraud is not rape at least since 1959, when the Supreme Judicial Court decided Commonwealth v. Goldenberg. Goldenberg, another doctor, had sex with a patient who came to him for an abortion, claiming that the sex was part of the procedure. The Court held that he hadn’t raped her, because he hadn’t used force–she consented to the act, although under false premises. If Goldenberg were the only case to that effect, I suspect the District Attorney here would prosecute Dr. Hardy and argue that its holding is outdated, and that in view of the law’s ongoing evolution in this area the Supreme Judicial Court should overrule it. But in 2007, in Suliveres v. Commonwealth, the SJC upheld Goldenberg (in a case in which a man pretended to be his twin brother in order to have sex with  the brother’s girlfriend) and said that the legislature had ample time to act to change the law if it disagreed with the result in that case; because it hasn’t acted, the law stays the same. These cases certainly foreclose a successful prosecution for rape in Dr. Hardy’s case. (That said, I find it surprising that the District Attorney has not charged him with indecent assault and battery, which has different elements, does not require force, and arguably could apply.)

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This week, two Massachusetts teenagers were convicted of sexually assaulting a heavily intoxicated 16-year old girl.  Another teenager had videotaped the incident and disseminated the videos on Snapchat, the hugely popular social media app.  The main evidence in the case came from another teenage girl who was not present at the scene but had received snapchat videos showing the victim naked, “almost in a headlock,” being fondled, kissed, or forced to perform sex acts, and slurring the word “stop.”  Although Snapchat automatically deletes video and images after they are viewed, the witness was able to preserve the images by saving screenshots of them on her phone.  The defense presented no witnesses, and the jury was out for less than a day before convicting the defendants on the charges, which could result in a sentence of as much as twenty years in prison.  The male teenager who took the videos, but did not participate in the sexual assault, had previously pled guilty to related charges.

The sexual assault of an incapacitated minor, whether documented by social media or not, is obviously an egregious crime with serious penalties, and the videotaping or photographing of a sexual assault of a minor, also violates a number of criminal laws.  However, Snapchat users, who are primarily in their teens or early twenties, may not realize that seemingly mundane photos or videos capturing everyday moments could also rise to the level of a crime or violate college or university policies against sexual harassment.

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