Boston Lawyer Blog

Back to School Basics: What To Do When the (Campus) Police Come Calling

Published on: August 31, 2022 | by David Duncan

Colleges and universities are starting their fall semesters, and orientation for incoming freshmen is well underway at many schools. One area that is not likely to be covered in orientation is students’ rights in encounters with police. While most students go through their entire college career without interacting with police, if you do, you should know what rights you have. This blog will discuss those rights in the context that is the most likely one where students might interact with police (sexual misconduct matters), but the rights you have apply to any interactions, on or off campus. You should know those rights. Just as important, you should know the limits of those rights. CONTINUE READING ›

Concepcion v. United States Affirms District Court’s Broad Discretion in Deciding Criminal Sentences

Published on: June 30, 2022 | by David Duncan

In Concepcion v. United States, the U.S. Supreme Court continued its support for sentencing discretion for district court judges. In this case, the issue was how much discretion a sentencing judge has when resentencing a defendant pursuant to the First Step Act, a substantial criminal justice reform act that Congress passed in 2018. Among its provisions is one allowing for resentencing of persons convicted before 2010 for distribution of crack cocaine who had been ineligible for resentencing when Congress in 2010 revised downward the penalties for crack cocaine (in the so-called Fair Sentencing Act). The quantities that triggered mandatory minimum sentences were reduced substantially, and the guidelines were amended to reflect those reductions.

Mr. Concepcion had been given a 19-year sentence in 2009 for selling 13.8 grams of crack. Because he was a “career offender,” meaning that he had a number of prior convictions for “crimes of violence” or drug distribution, his guideline sentencing range was not affected by the quantity reductions, and so he was not eligible for resentencing when the crack sentencing changes took effect in 2010. CONTINUE READING ›

Supreme Judicial Court Extends Pre-Trial Detention Time Limits Due to COVID-19 Pandemic

Published on: June 24, 2020 | by David Duncan

This week, the Massachusetts Supreme Judicial Court (SJC) issued an opinion in Commonwealth v. Lougee holding that its orders delaying trials due to COVID-19 allow the Commonwealth to hold defendants pre-trial beyond time limits set by statute. The decision applies to pre-trial detainees being held either on grounds of dangerousness under G.L. c. 276, §58A, or after violation of conditions of release under G.L. c. 276, §58B. Both statutes put time limits on how long a defendant can be held in jail without trial: 180 days under section 58A and 120 days under section 58B. The SJC decision addressed three cases: two in which the defendants were found dangerous and held under 58A, and one in which the defendant violated release conditions and was detained under 58B. In all three cases, a trial judge found that because the defendants had been detained for the statutory time limits, they had to be released. The trial judges did not find that the SJC’s orders postponing trials due to COVID-19 affected the calculation of time limits set by sections 58A and 58B. The Commonwealth appealed and the SJC reversed.

Supreme Court limits use of Federal Criminal Fraud Statutes to establish Good Government Standard in Kelly v. US

Published on: May 15, 2020 | by David Duncan

In Kelly v. United States, issued this week—the so-called “Bridgegate” case—the Supreme Court once again limits the use of federal criminal fraud statutes to establish a standard of good government for state and local governments. As in McNally v. United States and Skilling v. United States, the Court in Kelly continues to insist that fraud, to be a federal crime, must have as its goal the obtaining of money or property. Until the Court decided McNally in 1987, courts had approved of convictions where a defendant sought to deprive the victim of the “honest services” of someone who owed a fiduciary duty to the victim, on the theory that such services were “property” of the victim. The Court rejected this expansive definition of property in McNally, narrowing the scope of the mail and wire fraud statutes. Congress immediately amended the statutes in 1988 to reinstate the broader concept: “For the purposes of this chapter, the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.” In Skilling the Court again took up “honest services” fraud and held that the statutes encompass only such schemes as involve bribery or kickbacks. After Skilling all federal fraud cases must either involve money or property as the goal of the fraud, or if the goal is subversion of “honest services” it must be by means of bribery or kickbacks. Since in Kelly no bribes were given, the government advanced two ways they said that the defendants deprived the Port Authority, which operated the bridge, of property.

SJC Addresses when Juveniles with Prior Unadjudicated Cases are Exempt from Misdemeanor Prosecution

Published on: August 13, 2019 | by David Duncan

As part of the substantial criminal justice reforms enacted last year, the Massachusetts legislature gave a break to certain “first offender” juvenile delinquents. It did so by narrowing the definition of “delinquent child” found in G.L. c. 119 § 52, which effectively divests jurisdiction from the Juvenile Court for such “first offenders” because the Court has no jurisdiction except of “delinquent children.” In relevant part, the statute now defines “delinquent child” to be “a child between 12 and 18 years of age who commits any offense against a law of the commonwealth; provided, however, that such offense shall not include . . . a first offense of a misdemeanor for which the punishment is a fine, imprisonment in a jail or house of correction for not more than 6 months or both such fine and imprisonment.” Previously, a “delinquent child” was defined as “a child between seven and 18 who violates any city ordinance or town by-law or who commits any offence against a law of the commonwealth.”

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

Published on: January 31, 2019 | 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 ›

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

Published on: November 27, 2018 | 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.

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

Published on: October 24, 2018 | 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.

Despite Legalizing Marijuana, Massachusetts Trafficking Laws Harshly Punish Unlicensed Distributors

Published on: July 18, 2018 | by David Duncan

Marijuana has been in the news this summer. Medical marijuana has been increasingly available in Massachusetts since it was approved, first by voters then by the legislature in 2012. There are currently 36 medical marijuana dispensaries regularly providing marijuana to medical cardholders. In the first half of 2018 well over 9,000 kilograms of marijuana has been dispensed to some 56,000 cardholders.

On July 1, in compliance with a ballot initiative approving the recreational use of marijuana, the state licensed the first grower for recreational marijuana, approving 10-20,000 square feet of grow space. That single licensee, by industry estimates, should be capable of producing, very conservatively, 30 grams per square foot per harvest, or 30-60 kilograms per harvest. Assuming 6 harvests per year, this licensee should be able to produce 180-360 kilograms of marijuana per year. There are 40 pending applications for cultivation licenses. In addition, recreational users are permitted to grow their own plants for personal consumption.

Supreme Court Hears Arguments on Whether the Sixth Amendment Limits a Lawyer’s Strategic Decision to Concede Guilt in Death Penalty Case

Published on: January 24, 2018 | by David Duncan

Robert McCoy was convicted of murdering his estranged wife’s mother, stepfather and son by a Louisiana jury, and condemned to die. He is currently before the United States Supreme Court (McCoy v. Louisiana, No. 16-8255), which will shortly hear argument on whether his rights under the Sixth Amendment were violated when his attorney, in his opening at the trial, conceded that McCoy had committed the murders. The attorney did so over McCoy’s strenuous and repeated objections, made to the lawyer and to the judge before trial.

While there is a subsidiary issue of effective assistance of counsel, there is no question that the attorney made a considered strategic decision that making the concession was the best chance to spare McCoy the death penalty. The primary issue is whether this decision was the lawyer’s to make, or whether it was exclusively the client’s to make. CONTINUE READING ›