Criminal Defense

Commonwealth v. Bastaldo: Endorsing the Use of Scientific Information on Eyewitness Identification, the SJC Wades in to the Fray on How to Define Race and Ethnicity

Published on: July 8, 2015 | by Naomi Shatz

Six months ago we wrote about the SJC’s recent cases grappling with the fallibility of eyewitness evidence in criminal cases, and the provisional jury instructions the Court had drafted on this topic. Two weeks ago, the SJC again tackled the issue of eyewitness identification in Commonwealth v. Bastaldo, and revised the provisional model instructions with respect to cross-racial identifications.

In Bastaldo, the defendant was accused of assaulting the bouncer at a nightclub. The defendant identified himself as a “dark-skinned Hispanic of Dominican descent,”[1] and the SJC determined that he had “black” skin. He was identified in court by three witnesses: two self-identified as Caucasian, and one – the victim – was of Puerto Rican and Italian descent and self-identified as Hispanic. The SJC determined that this last witness had “brown” skin. The defendant requested an instruction on cross-racial and cross-ethnic eyewitness identification. The Commonwealth opposed the motion, arguing that at most the evidence suggested the witnesses may have had different ethnic backgrounds than the defendant, and that if any instruction were given it should not apply to the victim because he, like the defendant, was Hispanic. The trial judge declined to give a cross-racial or cross-ethnic identification instruction.

The provisional model jury instructions set forth in Commonwealth v. Gomes stated that “if witness and offender are of different races” the court should instruct the jurors that “research has shown that people of all races may have greater difficulty in accurately identifying members of a different race than they do in identifying members of their own race.” Because Bastaldo’s case was tried before the Gomes opinion was released, the Court determined that no cross-racial identification instruction had been required, and the trial judge had not erred in denying Bastaldo’s request for one. The Court, however, went on to modify the provisional model jury instructions set forth in Gomes to “direct that a cross-racial instruction be given unless all parties agree that there was no cross-racial identification.”

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”).

“Your Passport and Your Laptop, Please”: A Possible Limit on the Government’s Authority to Search at the Border?

Published on: May 14, 2015 | by David Russcol

Imagine you are at the airport, either about to get on or just having gotten off an international flight. While you are minding your own business, a Customs and Border Patrol agent comes up to you and demands to look inside the laptop bag over your shoulder. Perhaps this request is more or less random. Maybe the government suspects you of criminal activity in general. Or you might have been targeted based on your political activity. In any case, the agent does not have reasonable suspicion that you have contraband such as child pornography on your laptop. Nonetheless, the agent compels you to turn on your laptop, allow the agent to poke around your files, and when you refuse to decrypt your password-protected private data, the agent seizes your computer and sends it to a cyber-specialist for forensic analysis. You only get the laptop back seven weeks later with help from the ACLU. Have your Fourth Amendment rights been violated?

Until recently, the answer was fairly uniformly “no.” The Supreme Court has held that the government has wide authority and discretion to search just about anyone and anything at the border based on its interests in securing the border and national security. The relaxed restrictions on government action have led some on both the right and the left to brand the area around the border a “Constitution-Free Zone.” (In fact, the government has established border checkpoints 100 miles from the border or even farther, asserting the authority to stop and search people arbitrarily, even far from Canada or Mexico.) For example, the government does not need to give any justification for holding an individual at the border for an hour or two while a mechanic removes the gas tank of his car to search for drugs.

Massachusetts SJC Holds Search Unlawful Absent Showing of Probable Cause that Defendant Was Not Registered for Use of Medical Marijuana

Published on: May 1, 2015 | by Ruth O'Meara-Costello

The rapid liberalization of Massachusetts marijuana policy—including decriminalization of possession of less than an ounce of marijuana and legalization of medical marijuana—has had dramatic consequences for the Massachusetts law regarding search and seizure, offering even some defendants whose conduct has not become legal an unexpected avenue of defense. We have written here before about the Supreme Judicial Court’s holdings that neither smelling marijuana (in a necessarily unknown quantity), nor seeing marijuana in an amount estimated to be less than an ounce, constitutes probable cause for a warrantless search following decriminalization of possession of less than an ounce of the drug. The SJC has now made it clear that the medical marijuana ballot initiative, too, changes the landscape for law enforcement seeking to search for and seize marijuana. The Court’s April 27, 2015 decision in Commonwealth v. Canning held that following passage of that initiative, “a search warrant affidavit setting out facts that simply establish probable cause to believe the owner is growing marijuana on the property in question, without more, is insufficient to establish probable cause to believe that the suspected cultivation is a crime.” To be entitled to a valid warrant, the officer must also establish that the person responsible is not registered to cultivate the marijuana for medical use.

Supreme Court: Fourth Amendment Protects Against Electronic Monitoring… Sometimes.

Published on: April 3, 2015 | by David Russcol

In Grady v. North Carolina, the United States Supreme Court unanimously decided that the government conducts a “search” implicating the protection of the Fourth Amendment when it monitors someone’s movements electronically without their consent. This ruling may have some implications for the government’s use of electronic surveillance techniques, but ultimately the reasoning for the decision is fairly narrow. It seems unlikely to significantly affect, for instance, the various widely reported NSA programs that monitor information about the American public.

Grady is an unsigned summary decision, issued without full briefing or oral argument, indicating that the Court viewed it as a minor clarification of existing law that caused no controversy among the Justices. Torrey Dale Grady is a twice-convicted sex offender who has served the sentences for his crimes. Under applicable North Carolina law, after Grady was released, the State obtained a civil court order that, because he is considered a recidivist sex offender, he must wear a GPS monitoring ankle bracelet (or similar monitoring device) for the rest of his life. Grady challenged this monitoring requirement as an unreasonable search under the Fourth Amendment. The North Carolina state courts determined that it was not a search, and so the Fourth Amendment was not implicated.

Strangulation and Suffocation: New Criminal Statute with Penalties and Procedures Defendants Need to be Aware Of

Published on: March 20, 2015 | by Zalkind Duncan & Bernstein LLP

This is the second in a series of posts exploring the consequences for criminal defendants of an Act Relative to Domestic Violence, which the legislature passed and Governor Deval Patrick signed late last summer. That law created the new crime of strangulation or suffocation, which carries significantly greater penalties than a simple assault and battery charge. (A previous blog post here at bostonlawyerblog.com addressed two other crimes created by this legislation: domestic assault and domestic assault and battery.)

The Act came about in part due to the killing of Jennifer Martel by her boyfriend, Jared Remy, who has since plead guilty to first-degree murder and to the violation of a restraining order. The bill’s proponents sought the new crime saying that strangulation and suffocation are frequent means of domestic violence abuse (though not in the Remy case), and that tracking such alleged events would better protect victims of domestic violence. Before the creation of this new crime, prosecutors had the choice of charging a person alleged to have strangled another with either attempted murder (a 20 year felony) or with assault and battery (a misdemeanor). This new statute provides a charging option that falls between these two extremes – under the new law strangulation or suffocation is a felony, but a defendant can be sentenced either to state prison or to the house of corrections, and either district or superior court can have jurisdiction. By contrast, only the superior court has jurisdiction over an attempted murder charge, and any sentence must be served in the state prison.

New Domestic Violence Law Creates Crime of Domestic Assault and Battery

Published on: March 16, 2015 | by Zoraida Fernandez

In August 2014, former Massachusetts Governor Deval Patrick signed into law An Act Relative to Domestic Violence. This law ushered in many changes in Massachusetts criminal law and procedure, which will be a topic of several blog posts here at bostonlawyerblog.com. In today’s post I will be addressing one of two new crimes created by the law: domestic assault/assault and battery, Mass. Gen. Laws. ch. 265, § 13M.

A&B on a Family or Household Member

Before delving into how this new crime of domestic assault/assault and battery is different, we must first examine the existing crimes of assault and assault and battery. An assault is either (1) an attempted battery or (2) an immediately threatened battery, where a battery is a harmful or unpermitted touching of a person.

To convict a defendant of an assault and battery, the Commonwealth must prove that:

(1) the defendant touched the person of another without having any right or excuse for doing so;
(2) the defendant intended to touch that person; and
(3) the touching was either harmful or was done without the person’s consent.

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.

Amid Opposition, Massachusetts to Revise Rule for Criminal Pleas

Published on: February 12, 2015 | by Monica Shah

The Massachusetts Supreme Judicial Court (“SJC”) has issued extensive revisions to the rule governing criminal pleas, which will take effect on May 11, 2015. As I explain below, while the changes address a narrow issue, they impact criminal defendants because they further constrain what little judicial discretion is left in sentencing and reinforce the false premise that the prosecution and the criminal defendant enter into a plea bargain on equal terms.

Rule 12 of the Massachusetts Rules of Criminal Procedure governs judicial procedure for accepting a guilty plea and sentencing a defendant who has pleaded guilty. A criminal defendant may plead guilty to a charged offense with or without a plea agreement with the prosecution. However, when a criminal defendant decides to “plead out” or “take a deal,” that typically refers to the defendant agreeing to plead guilty in exchange for the prosecutor reducing the charge or requesting that the judge impose a recommended sentence or type of punishment, or both. If the plea agreement contains a recommended sentence, the defendant can join in the recommendation or reserve the right to object and request a lesser sentence or a different type of punishment.

“I Think What You Did Was Illegal”: Stops and Searches Based on Mistakes of Law

Published on: January 30, 2015 | by David Russcol

The Fourth Amendment protects against “unreasonable” searches and seizures, but what the courts consider “unreasonable” has evolved and shifted over time. One overarching trend over the last few decades is that police officers have been given significant leeway, and usually the benefit of the doubt, to stop and search individuals in various ways. Under federal law, police can search people and their property under warrants that turn out to be invalid, as long as they are acting in the good faith belief that the warrants are valid. The Supreme Court has held that police can validly arrest someone under a law that is later ruled unconstitutional. And police can stop or search someone whom they suspect of illegal activity, even, in some circumstances, if the suspicion was based on inaccurate or faulty information.

One common area where Fourth Amendment rights come into play is traffic stops. The police cannot stop a driver for no reason; such a stop must generally (with narrow exceptions such as sobriety checkpoints) be based on a reasonable suspicion that the driver has violated the law. However, courts routinely uphold stops under the Fourth Amendment when an officer’s attention is drawn to a car based on a hunch (or even racial profiling). A common police tactic is to follow a car until it commits some type of traffic violation or other infraction, and then use that as the basis to stop the car and make further inquiries. Courts have routinely refused to look past this gambit, holding that it is permissible to stop someone if there is in fact a traffic violation, no matter what the officer’s “real reason” for a stop was.