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police-850054_1920As 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

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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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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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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.Marijuana-2

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.

 

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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

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One fall evening in 2009, four men met up at one Timothy Brown’s apartment.  They had earlier been driving around together when two of them, Hernandez and Hill, decided to rob two women at gunpoint.  Hernandez, who had brandished a gun during the robbery, hid it in Brown’s kitchen when they arrived at the apartment.  In the early hours of the next morning, three more men arrived with a proposal to rob two drug dealers.  These three and Hernandez agreed to the second robbery and left in a car.  Before they left, Hernandez retrieved his gun and they asked Brown for hooded sweatshirts to cover their faces and for the loan of his handgun.  Brown provided them with the clothing and gun.  Continue reading

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Three publications in the last two weeks have highlighted the issue of whether President Trump has violated criminal laws while in office. They also raise the question of whether, if he has, a prosecutor should or should not bring charges against him.

In Thursday’s Boston Globe, Professor Alan Dershowitz argues that, while many of his (excellent) former students have written op-ed pieces and other publications about possible criminal charges that could be brought against President Trump, determining if criminal charges are possible is the “easy” part of the role of a prosecutor.  The hard part, he says, is exercising discretion in deciding whether the blunt and wide-ranging instrument of the criminal law should be applied, and concludes that, as with the calls for prosecution of Hillary Clinton, it should not.  Professor Dershowitz believes, noting the breadth of some of the statutes raised by these writers, and the disuse into which some have fallen, that the truly exceptional student would conclude that, as a hypothetical prosecutor, he or she would pass on bringing a prosecution.  He argues that the partisan nature of the calls in and of itself is grounds for exercising discretion against prosecution. Continue reading

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As I previously wrote , in December 2016 Rule 41 of the Federal Rules of Civil Procedure was changed to give law enforcement more expansive authority to conduct searches of computers. How the new procedural rule will interact with core constitutional values and established legal principles, as well as what the practical consequences of the rule are, remain open questions.

(1) Fourth Amendment

The proposed changes may well fall afoul of the Fourth Amendment. As I have discussed in a previous blog post, the Fourth Amendment protects people against unreasonable searches and seizures. It does this by requiring the government to obtain a warrant before conducting most searches, by requiring those warrants to be supported by probable cause, and by requiring the warrants to be particular about the location to be searched and the items to be seized. 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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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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