News + Insights from the Legal Team at Zalkind Duncan & Bernstein

Articles Posted in Criminal Defense

In many contexts, rules and codes of conduct have moved from evaluating the lawfulness or permissibility of sex based upon the presence or absence of force to instead evaluating whether the sex happened with or without consent. This is particularly true on college campuses, almost all of which have a definition of consent—usually affirmative or effective consent—that sex must meet in order to be allowed under campus policies. Many people—and particularly college-age students who have been trained on affirmative consent policies—think almost exclusively in terms of consent when considering whether sex is lawful or permissible. CONTINUE READING ›

Body-cam-pic-3-scaledThe use of body-worn cameras by the Boston Police Department has sparked controversy since its pilot program in 2016 and its official implementation in 2019. While the City and the Police Department have marked this move as an effort to be more transparent with the community, citizens claim that such a goal of transparency cannot be achieved within a broken system. Boston Police Department has equipped more than 1,000 officers over the city with body cameras, yet there have been minimal compliance checks and investigations into the misuse of these cameras and footage. Instead, there are a handful of loopholes that permit officers to use the footage at their discretion, putting civilians’ lives at risk for privacy invasion. To further complicate the limitations police officers have in using their body-worn camera footage, the official Body Worn Camera Policy of the Boston Police Department contains ambiguous and few rules regarding the improper use of footage. In Sec. 4.2 of Rule 405, the department enumerates five improper uses of body-worn camera footage; none of which emphasizes a civilian’s privacy nor prohibits the use of the footage for other cases than the one from which the footage originated. 

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pexels-any-lane-5727783-scaledAs part of the criminal justice reform bill in 2018, the Massachusetts legislature passed a statute creating a limited parent-child privilege so that minor children who may be in legal trouble can seek advice from their parents without having to worry that their parents could be witnesses against them in a criminal case. Similar protections exist for spouses, who cannot be compelled to testify against one another. Although the statute does not protect adult children who speak with their parents, it fills an important gap for juveniles, particularly since they have a right to speak with an “interested adult” before being interrogated by police. CONTINUE READING ›

david-von-diemar-jM6Y2nhsAtk-unsplash-scaledA recent Supreme Court case has reaffirmed the rights of individuals against unreasonable government searches and seizures after the First Circuit attempted to expand an exception to the Fourth Amendment. Last year, in Caniglia v. Strom, the First Circuit Court of Appeals (which includes Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island) identified a new exception to the Fourth Amendment protection against unreasonable searches and seizures in the home. In the case, police searched a house and seized the owner’s firearms without a warrant and claimed they were allowed to do so because their intent was  to protect against “[t]hreats to individual and community safety.” The First Circuit agreed, finding that the search fell under the “community caretaking exception” to the Fourth Amendment’s warrant requirement. In May, the Supreme Court unanimously rejected the First Circuit’s attempt to expand the “community caretaking exception” in a victory for civil liberties and the rights of individuals against unreasonable government intrusions. 

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street-3738298_1920-1In Commonwealth v. Lek, Lang Lek was convicted of gun possession after two Lowell Police officers pulled him over for a minor traffic violation so that they could “investigate” and “suppress gang activity.” After searching the vehicle, which belonged to Mr. Lek’s girlfriend, the officers found a gun in the glove compartment. Mr. Lek appealed his conviction, arguing that the gun should have been suppressed because it was recovered during an illegal search. The Massachusetts Appeals Court agreed with Mr. Lek, deeming the search unlawful because the officers used an inventory search as a pretext for investigation. In its decision, the Appeals Court also articulated broad concerns about the threat of racial profiling and “arbitrary action” when the police are given “unbridled discretion” to conduct investigatory traffic stops.

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In a landmark decision published last week, Massachusetts Coalition for the Homeless v. Fall River, the Massachusetts Supreme Judicial Court (SJC) struck down G.L.c. 85, § 17A (often referred to as the anti-panhandling law) as an unconstitutional restriction on protected speech. This decision was hailed as a victory by community organizers and people who are houseless, who have long criticized the law for effectively criminalizing houselessness and poverty.

Section 17A imposed criminal penalties for any person who “signals a moving vehicle on any public way or causes the stopping of a vehicle thereon, or accosts any occupant of a vehicle … for the purpose of soliciting any alms, contribution or subscription or of selling any merchandise.” (emphasis added). However, the law permitted the same conduct for other purposes, like selling admissions tickets and newspapers. The law also explicitly exempted from regulation this same conduct when performed on behalf of a non-profit organization with a police permit. The law imposed a $50 fine for violators.

Plaintiffs John Correira and Joseph Treeful are both houseless and members of the Massachusetts Coalition for the Homeless, an organization that advocates for housing justice and provides direct services and assistance to people experiencing houselessness. Like many people who are houseless, Mr. Correira and Mr. Treeful sometimes stand on public streets and ask motorists and passersby for donations in order to survive. Between 2018 and 2019, the Fall River Police Department charged the two men with more than forty violations of Section 17A. Both Mr. Correira and Mr. Treeful have previously been incarcerated as a result of these charges.

pexels-photo-532001Recently, in Commonwealth v. Davis, the Massachusetts Appeals Court determined that Massachusetts State Police officers coerced an individual to waive his Miranda rights when they arrested him after he attempted to exercise his constitutional right to counsel during an interrogation. CONTINUE READING ›

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By: Amanda Gordon, Legal Intern

In Massachusetts, in limited circumstances a person’s criminal records can be available to a licensing board or prospective employer. However, there remains a societal responsibility to ensure that criminal charges do not unfairly stigmatize or disadvantage defendants who have served their sentence or were never convicted at all. The Supreme Judicial Court acknowledged this tension in Boston Globe v. DJCIS, and again in its recent decision, Doe v. Board of Registration in Medicine. In this most recent case, the Court carved out a unique loophole, allowing the Medical Board to use sealed criminal records of doctors for the purposes of disciplinary deliberation. Typically, sealed criminal records can only be accessed by a small number of entities: courts, law enforcement agencies, and a few others. Prior to the Court’s decision, the Board of Registration in Medicine did not ordinarily have access to these records.

Criminal records can be sealed in one of three ways: The first two (G. L. c. 276, §§ 100A and 100B) provide for automatic sealing of certain criminal records, upon request, after a required period has passed without any additional criminal convictions—currently three years for misdemeanors and seven years for most felonies. The third method (§ 100C) of sealing permits a former defendant, whose criminal case resulted in a nolle prosequi (abandonment of the case) or a dismissal, to seal their criminal record at any time upon a judge’s discretionary determination that “substantial justice would best be served” by such sealing, based on the standards set by the Supreme Judicial Court.

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MA-SJCThis 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.

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george-washington-bridge-4023777_1920In 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.

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