Boston Lawyer Blog

Published on: March 1, 2019

In Commonwealth v. Sherman the SJC Draws A Line Separating Consensual Sex from Rape

How does a court determine when consensual sex becomes rape? That is the question the Supreme Judicial Court just tackled in Commonwealth v. Sherman. The facts of the case are not relevant to the legal question at issue; it is enough to know that the defendant argued that he had entirely consensual sexual intercourse with the victim, while the victim claimed that the entire encounter was not consensual. Under Massachusetts law, to prove rape the Commonwealth must prove three things: (1) that there was sexual intercourse between the defendant and the victim; (2) that the defendant accomplished that intercourse by force or threat of force; and (3) that at the time of penetration the intercourse was against the will of the victim (i.e. without the victim’s consent).

Published on: February 25, 2019

Supreme Judicial Court Allows Employees to Seek Court Award of Attorney’s Fees After Settling Wage Claims

by David Russcol

The Supreme Judicial Court in the recent case of Ferman v. Sturgis Cleaners, Inc. addressed a limited but important question under state law: when an employee brings a claim for violation of the Wage Act or similar statutes and then settles the claim before trial, can the court award attorney’s fees to the employee? This is a common situation because wage cases, like any other civil cases, typically are resolved one way or another before going all the way to trial. The SJC held that, in contrast to federal law, a plaintiff who obtains a favorable settlement is a prevailing party under state law, and therefore can seek attorney’s fees. There are unique aspects of the Wage Act that make settlements especially common, such as mandatory treble damages, but the provision requiring an award of attorney’s fees to prevailing plaintiffs works the same under other employment-related and civil rights statutes. Thus, this decision is likely to be applicable beyond the specific context of the Wage Act.

Published on: February 5, 2019

In Yee v. State Police, SJC Holds that Denial of Lateral Transfer Can Be Employment Discrimination

by Naomi Shatz

Last week the Supreme Judicial Court (SJC) issued its decision in Yee v. Massachusetts State Police, an employment discrimination case raising the question of whether denying a police officer a lateral transfer to different troop could be a discriminatory under our state anti-discrimination law. (As a note of disclosure: I wrote an amicus brief on behalf of the Massachusetts Employment Lawyers’ Association and other groups in support of the plaintiff, Lt. Yee.) The SJC reaffirmed that chapter 151B—Massachusetts’ law addressing discrimination in employment—is to be read broadly to protect employees. The Court held that when an employer makes a decision that causes a material disadvantage to an employee in objective aspects of their job, even if the employee doesn’t lose money as a result of the decision, that decision is illegal employment discrimination if it is based on the employee’s membership in a protected class.

Published on: January 31, 2019

New Ruling Allows for Secret Recording of Public Officials Engaged in Public Duties in Public Places

by David Duncan

As we have previously discussed on this blog, the Massachusetts wiretap statute makes it a crime to “secretly record” any person without their consent. The law has been used to prosecute and convict people who secretly record police activities. In Martin v. Gross and Project Veritas Action Fund v. Conley, an individual and a public-interest organization challenged the statute on First Amendment grounds. Chief Judge Saris of the U.S. District Court agreed with the challengers. In a decision published on December 10 of last year, Judge Saris held that the statute was unconstitutional insofar as it prohibited the secret recording of public officials (including police) engaged in their official duties in a public place. Police, and other public officials in Massachusetts, must now assume that their acts and statements are being recorded, whether they are told so or not. Continue reading

Published on: January 10, 2019

Massachusetts begins releasing prisoners under new “compassionate release” program

by Zalkind Duncan & Bernstein LLP

Before April 2018, Massachusetts was only one of five states without a “compassionate release” program. However, thanks to the new criminal justice reform bill signed by Governor Baker, inmates may now apply to be considered for this new opportunity. The program officially began taking applications from inmates in August 2018 and the first inmate was released in November 2018 due to his terminal cancer. The program is available to all inmates other than those serving life sentences without the possibility of parole for first degree murder convictions.

Published on: November 27, 2018

“First Step” Criminal Sentencing Bill Reduces Sentence Lengths, but Catches More Defendants in Sentencing Enhancement Net

by David Duncan

The “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.

Published on: November 16, 2018

How Would Cross-Examination Under the Department of Education’s Draft Title IX Regulations Work?

by David Russcol

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.

Published on: October 24, 2018

Massachusetts SJC Grants Global Remedy to Some Defendants Affected by Drug Lab Misconduct but Doesn’t go far Enough

by David Duncan

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 submitted 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:

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

Published on: October 19, 2018

Does the Man Suing over #MeToo List About Men in Media Have a Shot?

by Naomi Shatz

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. The 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?

Published on: September 25, 2018

Can I use a Nanny Cam in Massachusetts?

by Naomi Shatz

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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