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united-states-2361405_1920-1The “First Step” bill now circulating in the U.S. Senate promises to make some changes to sentencing and imprisonment that would ameliorate harsh penalties and treatment.  However, it does not go far enough, and in some cases it actually takes a step backward.  There are multiple provisions, but I will look at only one of them, which makes changes to the mandatory minimum sentences imposed on defendants convicted of drug offenses based on their prior criminal history.

Section 401 of the bill is titled “Reduce and Restrict Enhanced Sentencing for Prior Drug Felonies.”  The bill does both of these things: it reduces the mandatory minimums applicable to each enhancement category, and it restricts the prior offenses that trigger enhancement.  But it also adds an entirely new category of prior offense that can trigger enhancement.

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On November 16, 2018, the U.S. Department of Education released draft regulations that would significantly reform Title IX requirements for schools in dealing with sexual harassment and sexual assault on campus. Naomi Shatz has tweetstormed initial summaries and analysis of key features of the draft regulations. There is a lot to unpack in the regulations, and we will undoubtedly have more to write about them in the coming weeks. They also may change before they become final; this publication is the start of a 60-day public comment period, after which the Department of Education must reconsider and respond to input from the public before the regulations become effective. However, once the regulations are finalized, they will have the force of law and will be difficult to change, so it is very important to focus on what is in the draft now.

For now, I want to focus on the critical, and controversial, issue of cross-examination. The ability to ask probing questions of adverse witnesses is a deeply-rooted part of our court system in both civil and criminal cases; in criminal cases, it is a constitutional right under the Sixth Amendment. In sexual misconduct cases on campus, which generally are not in a courtroom setting, the procedural protections available tend to be different. The disciplinary processes at different schools vary considerably, but under guidance from the Obama Administration, cross-examination was discouraged and, if it occurred at all, was usually watered down. For instance, at many schools, a student can suggest questions to an investigator or hearing panel, but that investigator or hearing panel may reframe the question or refuse to ask it altogether, making it much more difficult to hone in on relevant issues. The well-intentioned instructions from the Department of Education, starting with the 2011 Dear Colleague Letter (now withdrawn), expressed concern that forcing accusers to confront the students they were accusing of misconduct and be cross-examined could traumatize them and deter them from making complaints. However, some courts (primarily the Sixth Circuit in the Midwest and state courts in California) have recently held that, at public colleges and universities, it may be a requirement of due process for an accused student to be able to cross-examine an accuser or witness in some fashion, at least when credibility is a key issue (as it often is in these cases).

The draft regulations would significantly change the approaches of most schools, requiring post-secondary institutions to hold a live hearing at which each party and witness would be subject to cross-examination, with a few limitations. (For instance, a complainant’s prior sexual history is generally off-limits.) Either party could request that cross-examination be conducted in separate rooms (through something like Skype), so that the parties would not have to confront one another face to face. Each party would have an opportunity to have all relevant questions asked, including those relating to credibility, and if a decision-maker refused to allow a question to be asked, they would have to provide an explanation. If a party or witness refused to be cross-examined, their evidence could not be considered at all. Since many schools have moved away from live hearings and allowed evidence to be submitted in writing or through interviews with an investigator, they would have to fundamentally change how they make decisions. We have seen many situations where both accused students and complainants have limited access to relevant information, and no way of meaningfully addressing gaps or inconsistencies in others’ statements. That is the core focus of cross-examination.

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In 2011, the Massachusetts Department of Public Health (“DPH”) discovered that state lab chemist Annie Dookhan had tampered with drug samples and falsified drug analyses submittedlaboratory-2815641_1920 to DPH’s Hinton drug testing lab in Boston, where she was employed as an analyst, and that the tainted results were then used as evidence in criminal trials. Her misconduct began in 2003 and extended until the end of 2011.  Over the course of the next two years the understanding of the scope of her misconduct grew, until it became apparent that over 40,000 criminal cases were affected.  Multiple litigations later, the Supreme Judicial Court issued an opinion (its third involving Dookhan) which tried to find a middle way between wholesale dismissal of the cases she had a hand in analyzing and painstaking, time-consuming and expensive case-by-case determination of the impact of her misdeeds.  As my colleague discussed at the time, in Bridgeman v. District Attorney for Suffolk District, the SJC fashioned a remedy in light of four principles:

  1. The government must bear the burden of taking “reasonable steps” to remedy egregious misconduct on its part;
  2. Relief from a conviction generally requires a convicted defendant to file a motion for relief;
  3. Dismissal of a criminal conviction “with prejudice”, i.e. without the option to re-file charges, is a remedy of last resort; and
  4. Where the misconduct affects large numbers of defendants, the remedy must be not only fair, but timely and practical.

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In the fall of 2017, writer Moira Donegan created the “Shitty Media Men” list—an “anonymous, crowd-sourced” spreadsheet that collected rumors and allegations of sexual misconduct by men in media and publishing. metooThe spreadsheet was up on the internet for only 12 hours before Donegan pulled it, but it went viral and became much more public than Donegan intended. Donegan said she had not foreseen this outcome; her goal had been to “create an alternate avenue to report this kind of behavior and warn others without fear of retaliation.” That fear of reprisal has become reality: last week, one of the men named on the list, writer Stephen Elliott, sued Donegan and 30 other anonymous women for defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress.

What do these legal claims mean, and does Elliott have a case?

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Nanny-cam

As a law firm made up of parents of young children, many of us have had the experience of reading our local parents’ listserv and seeing people asking for recommendations for the best nanny cam to buy to keep an eye on children. We often end up jumping into these threads to warn people about the illegalities of audio-recording an unsuspecting person in Massachusetts, often to the surprise of our fellow parents. It seemed useful to explore: under what circumstances might using a nanny cam be illegal?

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college-building-2-1In recent weeks, potential new draft regulations from the Department of Education’s Office for Civil Rights (OCR) have garnered considerable media attention, despite not being yet released. Last week the full text of those draft regulations was leaked to the public. Among several other notable changes to current practice at most colleges and universities (detailed in my colleague Naomi Shatz’s tweets after we first got our hands on the draft regulations), the draft would require a significant increase in respondents’ rights to cross-examine their accusers and other witnesses. Meanwhile, in the past months, the Sixth Circuit Court of Appeals has focused in a string of decisions on whether respondents in Title IX cases at public schools have a due process right to confront and cross-examine their accusers, and recently issued a new decision, in Doe v. University of Michigan  making the strongest statement we have seen yet from any court of appeals in favor of cross-examination. The regulations and the Sixth Circuit’s decision are both plainly intended to increase the rights of accused students, yet they offer schools very conflicting guidance about how to do so. In addition, the regulations could have significantly unintended consequences in practice.

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By: Melissa Ramos*

In an October 2017 opinion, the Massachusetts Supreme Judicial Court decided that a judge could no longer instruct a jury about a defendant’s refusal to take a breathalyzer test unless the defendant requested the instruction. An individual stopped on suspicion of operating a vehicle under the influence, more commonly known as OUI, already had a legal right to take or refuse a breathalyzer, and the refusal could not be entered into evidence at trial. However, until recently, the prosecutor could request that the judge instruct the jury that they could not consider the absence of adult-alcoholic-arms-174936breathalyzer evidence at trial when determining guilt or innocence—an instruction that could focus the jury on the absence of that evidence and cause them to speculate that the defendant had refused the breathalyzer. Now, during a trial for OUI, the absence of breathalyzer evidence should not be mentioned in jury instructions unless at the request of the defendant.

In Commonwealth v. Wolfe, the defendant was charged with OUI in 2015. He had two trials; the first ended in a mistrial. During both trials, there was no evidence presented of the defendant’s blood alcohol level. During the second trial, the judge instructed the jury, over the defendant’s objection, not to consider the absence of breathalyzer tests in their deliberations. The judge decided to give the instruction because the jury in the first trial had asked about the lack of breathalyzer test. The second jury ultimately convicted the defendant. Continue reading

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Earlier this month, the Supreme Judicial Court held that a defendant has a right to enter a “conditional plea.”   A conditional plea allows a defendant to plead guilty but preserves the defendant’s right to appeal soCourtroomme of the trial court’s rulings on legal issues.   If the defendant wins the appeal, the plea becomes unenforceable; it is essentially void.   For defendants who have legal defenses to charges – like, for example, a motion to suppress, or a challenge to the government’s interpretation of the reach of a particular criminal provision – a conditional plea is often the only meaningful way for defendants to challenge a lower court’s ruling. Continue reading

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Coffee-Meet-UpLabor Day Weekend is fast approaching and millions of college students across the country will be beginning their fall terms, including many first-year students who have just become adults and have spent little time away from their families or communities. If you are a parent of an incoming student, you may be helping your child pack, stock up on ramen, move into their dorm, and get oriented to a sprawling and likely overwhelming college campus. While you are preparing your child for a new stage of their life and hopefully independence and responsibility, this is the time to familiarize yourself with the college’s policies on sexual assault, harassment, and other misconduct. Although there has been recent news about potential reforms to the Department of Education’s (DOE) regulations and guidance on sexual misconduct, no changes have taken effect to date and therefore it is important to ensure that your child is aware of their school’s specific rules and knows their rights and responsibilities, as well as the risks of any criminal exposure.

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On August 10, 2018, Governor Baker signed a new law that, among many other things, restricts and reforms noncompetition agreements, which are commonly used by employers in some sectors of the economy. Noncompetition agreements, or noncompetes, restrict what an individual can do during or after their employment – typically, to prevent them fromhandshake working for competitors or entering market areas where the employer is already present. Although reasonable noncompetes sometimes serve to protect legitimate business interests of an employer, they can also be used to punish employees who decide to leave, or even lock them into their current employers by severely limiting permissible opportunities to work elsewhere. In one egregious case, the sandwich shop Jimmy John’s attempted to use noncompetition agreements to stop fast food workers from leaving for competitors, although they stopped this practice after investigations by multiple state attorneys general.

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