Boston Lawyer Blog

Massachusetts Changes its Felony Murder Doctrine for the Better

Published on: September 22, 2017 | by David Duncan

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 ›

Has Trump Violated Criminal Laws? If so, should he be prosecuted?

Published on: July 24, 2017 | by David Duncan

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 ›

The Rule 41(b) Amendments Have Serious Implications for our Constitutional Rights, Judicial Economy, and Global Surveillance Policies

Published on: April 21, 2017 | by David Duncan

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 ›

United States v. Tavares: What is a “Divisible” Criminal Statute and Why Does it Matter?

Published on: December 12, 2016 | by David Duncan

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 ›

Massachusetts Supreme Judicial Court Holds that Persons Arrested for DUI Have No Right to Counsel for Breathalyzer Decision

Published on: August 18, 2016 | by David Duncan

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 ›

Massachusetts Appeals Court Decision in Commonwealth v. Daly Invalidates Conspiracy Conviction

Published on: September 18, 2015 | by David Duncan

While it is not a crime to think about committing a crime, or in general to talk about committing a crime, it is a crime to agree with someone else to commit a crime. Usually one additional thing is required, an “act in furtherance” of the conspiracy – something to demonstrate that the agreement is not mere idle talk. This is the crime of conspiracy. It requires two people. It is an amorphous crime, something prosecutors love and defense attorneys detest, because it has such open-ended reach.

Where the conspiracy is to distribute drugs, the “act in furtherance” is dispensed with. All that is necessary to commit the crime is that you agree with one other person to distribute illegal drugs. You don’t need to do anything – you only need to agree with another that you will do something.

The Massachusetts Appeals Court recently, in Commonwealth v. Daly, (Sept. 3, 2015) set at least a lower limit on the broad reach of the crime of conspiracy. Following in the path of a number of federal courts, the Appeals Court held that a buyer and seller in a drug transaction are not guilty of conspiracy to distribute drugs, despite the indisputable fact that they have by the nature of the transaction agreed to a sale of drugs that necessarily entails distribution from one to the other.

Massachusetts High Court Holds Law Criminalizing False Statements About Political Candidates Unconstitutional

Published on: August 11, 2015 | by David Duncan

On August 6, the Supreme Judicial Court, in Commonwealth v. Lucas, No. SJC-11380, held unconstitutional a Massachusetts statute criminalizing the publication of false statements about political candidates and political ballot initiatives “which [are] designed or tend[] to aid or injure or defeat such candidate . . . . [or] which [are] designed to affect the vote on such question.” G.L. c. 56, § 42. This firm signed an amicus brief submitted by the Cato Institute, urging the SJC to do so. The Court declined several opportunities to avoid deciding the constitutional issue and emphatically declared that exposing political litigants to criminal prosecution was too dangerous to a free and open political process to allow the statute any continuing validity.

Melissa Lucas was the President of a Political Action Committee (PAC) that distributed a brochure to voters in a legislative race, urging voters to vote against Brian Mannal, the incumbent. Among other statements, the PAC asserted that Mannal “chose convicted felons over the safety of our families,” “earned nearly $140,000 of our tax dollars to represent criminals,” and “is putting criminals and his own interest above our families.” Mannal applied for a criminal complaint two weeks before the election, and held a press conference announcing it. Lucas filed a motion to dismiss, challenging the constitutionality of the statute. The election was held before any hearings in the matter took place.

Recent Supreme Court Decision in Johnson v. United States Should Prompt Changes Beyond the ACCA

Published on: July 3, 2015 | by David Duncan

The federal Armed Career Criminal Act (ACCA) provides for an enhanced penalty, a mandatory minimum 15 year sentence, for felons possessing firearms who have previously been convicted of a combination of three serious drug offenses or “violent felonies.” Congress defined “violent felonies” in three ways: 1: crimes which have as an element use of force or the threat or attempt to use force against another; 2: arson, burglary, extortion or any crime that involves the use of explosives; and 3: any crime that “otherwise involves conduct that presents a serious potential risk of injury to another.” 81 U.S.C. § 924(c)(2). The last definition is known as the “residual clause” and it has been the subject of five Supreme Court decisions since 2007. In the most recent, Johnson v. United States, decided last week, the Court finally threw in the towel on attempting to construe this provision and held that it was unconstitutionally vague. In Johnson, the lower courts had held that Johnson’s prior conviction for possession of a sawed-off shotgun qualified as a “violent felony” under the residual clause. Initially the Supreme Court granted certiorari only to determine whether that offense qualified as an ACCA “crime of violence.” After argument on this narrow issue, however, the Court asked for supplemental briefing and argument on the constitutionality of the residual clause and eventually decided the broader, constitutional issue, holding that the clause was so vague that it violated due process.

So, as of June 26, 2015, there are only two definitions of “violent felony” that can serve as predicates for the enhanced ACCA mandatory minimum sentence: either the predicate offense must have as an element of the offense the use, threat of use or attempted use of force, or it must be arson, burglary, extortion or an offense involving explosives.

The federal Sentencing Guidelines, which provide for substantially increased sentencing ranges for so-called “Career Offenders,” may and should also be affected by Johnson’s holding. A defendant over 18 can be sentenced as a Career Offender for any two prior convictions of a “crime of violence or controlled substance offence” – a far larger population of defendants than those charged for being felons in possession of a firearm. U.S.S.G. §4B1.1(a). Because the definition for “crime of violence” is the same as the ACCA definition of “violent felony,” the First Circuit has construed them identically, such that precedent as to the ACCA definition is generally applicable to the Guidelines definition, and vice-versa. See, e.g., U.S. v. Williams, 529 F.3d 1, 4 n.3 (1st Cir. 2008) (authority interpreting one “generally persuasive” in interpreting the other); U.S. v. Almenas, 553 F.3d 27, 34 n.7 (1st Cir. 2009) (ACCA and Guidelines definitions read “in pari passu”).

Police Can’t Search Your Car Because they See a Small Amount of Marijuana

Published on: February 27, 2015 | by David Duncan

The Supreme Judicial Court today, February 27, suppressed a search that was triggered by police observing “about an ounce” of marijuana in a car they had stopped for a broken headlight (Commonwealth v. Sheridan, No. SJC-11543). Following the decriminalization of marijuana possession in small amounts (under an ounce) by the voters, the SJC had held, in two earlier cases, that the smell of burnt marijuana, even coupled with other suspicious facts (such as the stop being in a high-crime area or furtive or nervous behavior by the person stopped), did not establish probable cause to search a vehicle.

In this case, the police saw the marijuana on the floor of the defendant’s van. The SJC found no difference between smelling marijuana, which gave no clue as to the quantity they might find, and seeing marijuana that they estimated to be a non-criminal quantity. In neither case did the police have probable cause to search based on evidence of a civil infraction.

The Supreme Judicial Court’s Opinion in “In the Matter of a Grand Jury Investigation” Offers Fleeting Protection on a Misreading of the Supreme Court’s decision in Fisher v. United States

Published on: January 15, 2015 | by David Duncan

On January 12, the Supreme Judicial Court issued an opinion, In the Matter of a Grand Jury Investigation, which held that a grand jury subpoena, issued to a law firm for a cell phone containing text messages or other communications that the Commonwealth contended were evidence of a crime, and which had been provided to the firm by a client for the purposes of providing legal advice, must be quashed, meaning the attorneys did not have to turn the cell phone and its contents over to grand jury. Though no names were mentioned it was widely reported that the phone belonged to Aaron Hernandez and the grand jury is deciding whether to charge him with murders in Suffolk County. He was the “target” of the investigation.

Three legal issues and their interplay decided the case, but they also left open an alternative route for prosecutors to seek documentary evidence belonging to a client but held by an attorney.