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John_Adams_Courthouse_-_Suffolk_County_Courthouse_-_Boston_MA_-_DSC04718-1This week the Supreme Judicial Court (“SJC”) decided Commonwealth v. Newberry, in which it held that judges must arraign defendants prior to assigning them to pretrial diversion if the Commonwealth seeks arraignment. In my opinion the decision is wrong on the law, and eliminates an essential avenue for some defendants to avoid the negative consequences of a criminal charge on their records.

Under the law in question, the court may “at arraignment” delay the case for two weeks for assessment of the defendant’s suitability for diversion to a treatment or other program in lieu of prosecution. (The “program” in question can include community service, so diversion is a possibility even for those not in need of, for example, mental health or substance abuse treatment.) At the two-week return date, the court may, if it determines that the defendant is eligible for diversion, continue the case for 90 days to allow the defendant to complete the program, and then dismiss it following that period. The question in this case was whether the defendant must be arraigned before the case is diverted, if the Commonwealth so requests. Before the decision certainly many judges believed that they had authority to divert cases pre-arraignment even if the prosecution objected, and our office secured this disposition for a number of defendants. For example, in January 2019 I convinced a judge to grant a client pre-arraignment diversion on condition that he complete an anger management course and community service, over the objection of the Commonwealth.

This case will change the availability of that option. The SJC read the language in the statute stating that these events must take place “at arraignment” to mean that they cannot happen pre-arraignment if the prosecution objects. To my mind this reading is not at all mandated by the plain language of the statute. I would read the language “at arraignment” to indicate only that the determination should be made at the defendant’s first appearance before the court, i.e. their scheduled arraignment. The statute does not use language such as “after arraignment,” which would clearly indicate that defendants must actually be arraigned before diversion, or directly address whether diversion can take place prior to arraignment. And it nowhere gives the prosecution authority to stand in the way of diversion if the court finds it to be warranted, so it is bizarre that the court’s statutory reading gives prosecutors the discretion whether or not to demand arraignment in a particular case.

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squad-car-1209719_960_720When police conduct traffic stops, a wide array of legal principles come into play in seemingly simple interactions, including Fourth Amendment search and seizure law, the Fifth Amendment right to remain silent and refuse to incriminate yourself, laws governing civil traffic infractions, and the criminal law. (While what you should do if stopped obviously varies depending on the situation, the ACLU provides some useful general principles for how to conduct yourself if the police pull you over.) Among all of the various complex legalities of a traffic stop, however, one requirement in Massachusetts is fairly simple, though little-known: under the Massachusetts “no fix” statute, for nearly all motor vehicle offenses, police must give the violator a citation at the time and place of the violation. If they fail to do so without justification, the violator has a defense “in any court proceeding for violation,” meaning that even criminal charges against the violator must be dismissed.

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We are pleased to announce that five of our attorneys have been selected to the 2018 Massachusetts Super Lawyers List. We would also like to congratulate six of our attorneys for being selected to the 2018 Massachusetts Rising Stars list.

Super Lawyers rates outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations, and peer evaluations. Only up to 5 percent of the lawyers in a state are named to the Super Lawyers list, and no more than 2.5 percent are named to the Rising Stars list.

Please join us in congratulating the following attorneys who have been selected as “Super Lawyers” and “Rising Stars” this year.

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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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AllegationBrown-Doe-images of sexual assault on campus involving students of different colleges are very common. My experience representing students involved in such proceedings has typically been that if a college is presented with an allegation that one of its students has sexually assaulted, harassed, or abused another person, the college will investigate that allegation, regardless of whether the complainant is a student at that college, an alumnus of the college, or an individual with no connection to the institution. (This can vary depending on the terms of the college’s Title IX policy, but most policies at least allow for such investigation.) The college’s ability to provide complainants who are not its students with some types of help may be limited—it probably cannot meaningfully offer academic accommodations, for example—but it can and (again, in my experience) usually does proceed to investigate the allegations and mete out any discipline that it concludes is warranted. A ruling by the First Circuit Court of Appeals in one recent lawsuit suggests that there are limits on colleges’ obligations to complainants in such situations, but in my view it is unlikely to result in dramatic changes in most colleges’ practices.

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Justice Gaziano, of the Massachusetts Supreme Judicial Court (“SJC”), makes a proclamation in the first paragraph of that Court’s recent decision in Commonwealth v. Wilbur W.  that may be startling to many members of the public, especially teenagers: “When two minors have consensual sexual relations, both of whom are members of the class the statute [criminalizing statutory rape] is designed to protect [i.e. they are under 16], each has committed a statutory rape.” What Justice Gaziano does not mention is that the crime of statutory rape carries a penalty of up to life in prison, as well as lifelong sex offender registration. This reality raises significant questions about how we as a society handle sex between juveniles and when the criminal law is an appropriate—or humane—tool. The SJC largely dodged those questions in Wilbur W., but they are bound to recur, probably sooner rather than later, in the courts of the Commonwealth. In the meantime, juveniles remain subject to the same criminal liability as adults for having sex with anyone under 16—even if the sex is consensual, and regardless of how their age compares to that of their partner.

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Protecting-Families-Through-Evidentiary-Privilege

In addition to the many other changes contained in the criminal justice bills that have recently passed the Massachusetts House and Senate, criminal justice reform in the Commonwealth could include one additional significant change in the laws of evidence. The Senate’s bill includes a provision that would disqualify a parent from testifying against a minor child in most criminal cases. The effect would be to make parent/child communications generally legally private, much like confidential discussions between married people. As a lawyer who works often with families—and as a parent—I believe very strongly that this provision works a necessary change in the law and hope that the conference committee now working to create a uniform bill will include it. Continue reading

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The last two years have been exceptionally active for defamation cases in matters involving allegations of sexual harassment or assault. Just during the last week, for example, a lawyer for Harvey Weinstein announced that he intends to sue the New York Times following an explosive story alleging he has sexually harassed actresses and workers at his company for years. (That story was quickly followed by an even more damning story in The New Yorker; that story’s author, Ronan Farrow, reports that Weinstein has also threatened him with suit.) In cases involving the same legal principles and similar allegations—but the opposite party alignment—a number of Bill Cosby’s accusers are suing him for statements that they say paint them as liars (and at least one such suit has been allowed to move forward, though two others have been dismissed; the judge overseeing the cases drew a distinction between statements that disputed an accuser’s credibility based on disclosed, non-defamatory facts, and statements that implied the existence of non-disclosed defamatory facts). And a disastrously poorly fact-checked story published in Rolling Stone about an alleged rape at the University of Virginia has spawned a series of lawsuits and, most recently, an interesting opinion by the Second Circuit Court of Appeals concerning the viability of a lawsuit by UVA students who claimed that the article defamed them. Continue reading

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The Sixth Circuit Court of Appeals recently decided Doe v. University of Cincinnati, upholding a preliminary injunction preventing the University of Cincinnati from suspending a student it found responsible for sexual assault. The decision is significant for all students facing suspension or expulsion at public colleges and universities.

In the underlying case, two students met on Tinder, then met up in person and had sex. The complainant, Jane Roe, alleged that the sex was not consensual; the respondent, John Doe, insisted that it was. The university followed a procedure that many colleges, public and private, employ: it first tasked an employee of the Title IX office with conducting an investigation in which she interviewed witnesses and gathered evidence from both sides, and then prepared a report. Following the investigation, the university held a hearing where both students had the opportunity to appear before a panel that would render a decision as to whether John Doe was responsible for sexual misconduct. During that hearing, the accused student was supposed to have the ability to present written questions to the hearing chair and request that they be posed to the complainant. Per the university’s policy, a witness who was unable to appear could submit a notarized statement. Continue reading

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In the world of disciplinary hearings under Title IX, the process for students accused of sexual harassment or sexual assault on campus often begins this way: an accused student (the “respondent” in campus disciplinary parlance) is called into a meeting with a school administrator and informed of a disciplinary charge that could result in expulsion. At most schools, the information that the school provides about the actual charge consists of the date of the alleged event (or a range of dates); the identity of the complainant (the student who is making the accusation) and the provision of the student code that the respondent allegedly violated, or another summary description such as “non-consensual sexual conduct.” In practice, this information is often not sufficient to allow the respondent to identify the actions that the school is investigating, particularly where the allegations stem from a long-term romantic relationship with the complainant, much less to prepare a defense. It also may not give respondents adequate notice to allow them to evaluate whether they may face criminal charges, and make informed decisions about whether to waive their 5th Amendment right to remain silent by making statements during the school’s investigation.

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