Articles Posted in Criminal Defense

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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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In a decision released today, the Supreme Judicial Court concluded that driving with improperly restrained children does not constitute reckless endangerment under state law. 

Suzanne Hardy was charged with several crimes, including reckless endangermentafter her nephews were killed in a car crashOn the day of the accident, Ms. Hardy, who was taking care of her four-year-old son and her two nephews, ages four years and sixteen months, decided to drive the children from her house to her nephews’ home. By statute, children under eight years old in Massachusetts must ride in a car seat, unless they are at least 57 inches tall. The defendant put her own son in his booster seat, put the 16-month-old in a front-facing car seat (with the straps at an improper height), and buckled her 4-year-old nephew, who was 44 inches tall, into the car without any booster seat. She had a second booster seat with her but chose not to use it.   

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Massachusetts has a unique system for certain criminal complaints, where both a police officer or private individual can apply for a criminal complaint and a clerk magistrate will decide whether there is probable cause for a criminal complaint to be issued. This process is available for most misdemeanor crimes and some felony crimes where an individual has not been arrested. A hearing before a clerk magistrate—also known as a show cause” hearing—serves an important function in the Massachusetts criminal justice system because it screens out certain potential complaints at an early stage without creating a criminal record for the accused. If the clerk magistrate does not find probable cause, the clerk magistrate will not issue a criminal complaint. If the clerk magistrate finds probable cause, he or she can either issue a criminal complaint or exercise discretion and decide not to issue a complaint. 

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Police-lightLast week, the Supreme Judicial Court reaffirmed that in Massachusetts, evidence unlawfully obtained from a police search will be excluded in criminal trials even in cases in which the police had good reason to believe the search was legal. That ruling buttresses a longstanding difference between federal law and Massachusetts law. In federal court, prosecutors can insulate police errors by arguing the police had a good faith basis to use an illegal tactic, and therefore evidence should not be suppressed. Not so in Massachusetts – at least for now.
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Massachusetts courts often require individuals on probation, particularly sex offenders, to wear GPS monitors that track their every movement.  Imposing this requirement, the state’s highest court said for the first time recentlyis a search, meaning that a judge can only lawfully require such monitoring after making an individualized determination that balances “the Commonwealth’s need to impose monitoring against the privacy invasion occasioned by such monitoring.”   

The two decisions issued by the Supreme Judicial Court (SJC), Commonwealth v. Feliz and Commonwealth v. Johnsonare the first to apply Grady v. North Carolina, a 2015 Supreme Court decision holding that GPS monitoring is in fact a search protected under the Fourth Amendment’s prohibition against “unreasonable” searches.  While the SJC had previously treated GPS monitoring as something else, calling it, for instance, “punishment” for committing an offense, Feliz and Johnson clarify that under both federal and state constitutional law, GPS monitoring is in fact a search. Applying its own new standard, the SJC reached contrasting results, deciding that GPS monitoring was unreasonable in Feliz but reasonable in Johnson 

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Recently, the Supreme Judicial Court ruled on what the government must show in order to obtain an order compelling a defendant to enter his password into a locked phone. While holding that compelling such an act is testimonial in nature and does implicate a person’s right agaiiphone-smartphone-apps-apple-inc-40011nst self-incrimination under the Fifth Amendment and art. 12 of the Massachusetts Declaration of Rights, the Court held that where the government can prove beyond a reasonable doubt that it already knew that the defendant knows the password, the information sought is a foregone conclusion and compelling the defendant to enter the password is constitutionally sound.  Continue reading

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Lady-justiceHow does a court determine when consensual sex becomes rape? That is the question the Supreme Judicial Court just tackled in Commonwealth v. ShermanThe facts of the case are not relevant to the legal question at issue; it is enough to know that the defendant argued that he had entirely consensual sexual intercourse with the victim, while the victim claimed that the entire encounter was not consensual. Under Massachusetts law, to prove rape the Commonwealth must prove three things: (1) that there was sexual intercourse between the defendant and the victim; (2) that the defendant accomplished that intercourse by force or threat of force; and (3) that at the time of penetration the intercourse was against the will of the victim (i.e. without the victim’s consent).  

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united-states-2361405_1920-1The “First Step” bill now circulating in the U.S. Senate promises to make some changes to sentencing and imprisonment that would ameliorate harsh penalties and treatment.  However, it does not go far enough, and in some cases it actually takes a step backward.  There are multiple provisions, but I will look at only one of them, which makes changes to the mandatory minimum sentences imposed on defendants convicted of drug offenses based on their prior criminal history.

Section 401 of the bill is titled “Reduce and Restrict Enhanced Sentencing for Prior Drug Felonies.”  The bill does both of these things: it reduces the mandatory minimums applicable to each enhancement category, and it restricts the prior offenses that trigger enhancement.  But it also adds an entirely new category of prior offense that can trigger enhancement.

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In 2011, the Massachusetts Department of Public Health (“DPH”) discovered that state lab chemist Annie Dookhan had tampered with drug samples and falsified drug analyses submittedlaboratory-2815641_1920 to DPH’s Hinton drug testing lab in Boston, where she was employed as an analyst, and that the tainted results were then used as evidence in criminal trials. Her misconduct began in 2003 and extended until the end of 2011.  Over the course of the next two years the understanding of the scope of her misconduct grew, until it became apparent that over 40,000 criminal cases were affected.  Multiple litigations later, the Supreme Judicial Court issued an opinion (its third involving Dookhan) which tried to find a middle way between wholesale dismissal of the cases she had a hand in analyzing and painstaking, time-consuming and expensive case-by-case determination of the impact of her misdeeds.  As my colleague discussed at the time, in Bridgeman v. District Attorney for Suffolk District, the SJC fashioned a remedy in light of four principles:

  1. The government must bear the burden of taking “reasonable steps” to remedy egregious misconduct on its part;
  2. Relief from a conviction generally requires a convicted defendant to file a motion for relief;
  3. Dismissal of a criminal conviction “with prejudice”, i.e. without the option to re-file charges, is a remedy of last resort; and
  4. Where the misconduct affects large numbers of defendants, the remedy must be not only fair, but timely and practical.

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In an October 2017 opinion, the Massachusetts Supreme Judicial Court decided that a judge could no longer instruct a jury about a defendant’s refusal to take a breathalyzer test unless the defendant requested the instruction. An individual stopped on suspicion of operating a vehicle under the influence, more commonly known as OUI, already had a legal right to take or refuse a breathalyzer, and the refusal could not be entered into evidence at trial. However, until recently, the prosecutor could request that the judge instruct the jury that they could not consider the absence of adult-alcoholic-arms-174936breathalyzer evidence at trial when determining guilt or innocence—an instruction that could focus the jury on the absence of that evidence and cause them to speculate that the defendant had refused the breathalyzer. Now, during a trial for OUI, the absence of breathalyzer evidence should not be mentioned in jury instructions unless at the request of the defendant.

In Commonwealth v. Wolfe, the defendant was charged with OUI in 2015. He had two trials; the first ended in a mistrial. During both trials, there was no evidence presented of the defendant’s blood alcohol level. During the second trial, the judge instructed the jury, over the defendant’s objection, not to consider the absence of breathalyzer tests in their deliberations. The judge decided to give the instruction because the jury in the first trial had asked about the lack of breathalyzer test. The second jury ultimately convicted the defendant. Continue reading

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