Articles Posted in Criminal Defense

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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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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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On April 13, 2018, Governor Baker signed a law overhauling many aspects of the Massachusetts criminal justice system. My colleague Naomi Shatz recently covered the ways that the bill made pretrial diversion available to more defendants, and introduced a new program of diversion through restorative justice. Both of those programs, if successfully completed, allow defendants to move forward without a record of conviction, or even without a record of arraignment.

The reform legislation also takes several steps to expand the ability of defendants to turn the page on prior criminal cases by sealing or expunging their prior records. Although these provisions will not become effective until October, at that point they will have far-reaching effects for many individuals. I previously addressed the pre-reform state of the law a few years ago for this blog. As things stand until the new law takes effect, a defendant must wait 5 years after a conviction of a misdemeanor before being able to seal his or her record, 10 years for a felony, and 15 years for sex offenses that can be sealed. Non-convictions (such as dismissals after a continuance without a finding) can be sealed either after those waiting periods, or by petitioning a judge to seal the record sooner. Continue reading

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On Friday, Governor Baker signed a sweeping criminal justice reform bill into law, and because it contained an emergency preamble it went into effect upon signing. The law makes significant changes to defendants’ ability to get a pre-arraignment diversion — a way to resolve a case without any criminal record.Criminal-Justice-Reform-Act

Under the old law (Mass. G.L.c. 276A), a defendant could obtain a pre-arraignment diversion if she met all of the following criteria, set forth in section 2 of the law:

  • The case was one where a prison sentence was possible and the district court had final jurisdiction;
  • Was between ages 18-22 or was a military veteran;
  • Had not previously been convicted of any crime;
  • Did not have outstanding warrants or criminal cases in any court;
  • Received a recommendation from a program that she would benefit from the program.

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Pre-Arraignment-DismissalOn March 22, a decision by the Massachusetts Appeals Court made a small but significant change in the authority of District Court and Boston Municipal Court judges to screen out criminal charges that may have been improperly issued or legally flawed. In Commonwealth v. Moore, the Appeals Court held that these judges cannot decide a motion to dismiss a complaint for lack of probable cause before a defendant is arraigned – that is, before a defendant formally faces the charges and pleads guilty or not guilty. This decision has the potential to substantially increase the number of people in Massachusetts with criminal records, many of whom may face adverse consequences from employers or others. This result will waste judicial resources and is contrary to the goals of the criminal justice reform bill that just passed the Legislature. It should be addressed promptly by the Legislature and/or reversed by the Supreme Judicial Court.

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SJC-Victim-Sentencing-Recommendations

In the recently decided Commonwealth v. McGonagle, the Supreme Judicial Court considered whether a Massachusetts statute that allows victims of crimes to recommend a sentence violates (1) the Eighth Amendment to the U.S. Constitution and Article 26 of the Massachusetts Declaration of Rights (particularly in light of the U.S. Supreme Court’s recent decision in Bosse v. Oklahoma, 137 S. Ct.  1 (2016)); and (2) the defendant’s due process rights. The SJC concluded that consideration of a victim’s sentence recommendation in a non-capital case does not violate either the federal or Massachusetts constitutions. While victims’ accounts regarding the effect of the crime provide relevant information for a sentencing judge, allowing victims to make a specific sentence recommendation seems unfairly prejudicial to the defendant and irrelevant, and the SJC’s reasoning in this case does not go far enough in addressing these concerns.

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Supreme-Court-Sixth-Amendment

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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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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Sessions Department of Justice Marijuana

Perhaps motivated by California’s legalization of recreational marijuana, which just became effective at the beginning of the year, Attorney General and longtime cannabis opponent Jeff Sessions recently issued a brief statement changing the Department of Justice’s approach to marijuana, even as support for marijuana legalization is hitting all-time highs. Over the course of the Obama Administration, Deputy Attorneys General David Ogden and James Cole had issued increasingly detailed and refined guidance, instructing U.S. Attorneys to take a largely hands-off approach to marijuana to the extent it was legal under state laws; federal authorities would focus on enforcing certain red lines such as sales to minors, use of weapons or violence, and interstate trafficking. With the clarity of these guidance memos, participants and investors in marijuana markets – first medicinal and, more recently in a few places, recreational – developed a comfort level that, as long as they carefully observed state requirements, the risk of federal prosecution was remote (even though there continued to be tension between state laws and the federal Controlled Substances Act). Now Attorney General Sessions has rescinded all of that guidance, sparking a blaze of consternation among industry observers. Continue reading

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Massachusetts-Criminal-Justice-Reform

Over the last few months, the Massachusetts Senate, and then the House, debated and passed bills that would make significant changes to the state criminal justice system, ultimately resulting in a more flexible and forgiving system, with a greater ability for those who have gone through the system but subsequently stay out of trouble to move on with their lives. Both chambers’ bills would crack down on certain specific offenses, such as increasing penalties for selling or trafficking in opioids like fentanyl, but reduce mandatory minimums and other penalties like those for non-violent drug offenses, sometimes retroactively. And both would take a less strict and punitive approach toward low-income defendants who cannot afford to post bail or to pay fines and fees. Continue reading

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