Articles Posted in Criminal Defense

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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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One fall evening in 2009, four men met up at one Timothy Brown’s apartment.  They had earlier been driving around together when two of them, Hernandez and Hill, decided to rob two women at gunpoint.  Hernandez, who had brandished a gun during the robbery, hid it in Brown’s kitchen when they arrived at the apartment.  In the early hours of the next morning, three more men arrived with a proposal to rob two drug dealers.  These three and Hernandez agreed to the second robbery and left in a car.  Before they left, Hernandez retrieved his gun and they asked Brown for hooded sweatshirts to cover their faces and for the loan of his handgun.  Brown provided them with the clothing and gun.  Continue reading

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For over 40 years, Massachusetts has had an avenue of pretrial diversion in criminal cases, which allows young individuals accused of less-serious crimes to avoid a criminal record. Specifically, defendants under age 22 with no prior convictions who are charged in state District Court (or the Boston Municipal Court) can seek a diversion under Chapter 276A of the General Laws. (Sex offenses and certain other crimes are not eligible for pretrial diversion.) If the court agrees, the defendant’s arraignment can be postponed while the defendant participates in a “program” with an aim toward rehabilitation and preventing future offenses. A “program” can include any of a number of different things, including medical, psychological, or substance abuse treatment; education, training, or counseling; community service; or “other rehabilitative services.” After the defendant completes the program, the court may dismiss the charge without it ever showing up on his or her criminal record. Continue reading

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As I previously wrote , in December 2016 Rule 41 of the Federal Rules of Civil Procedure was changed to give law enforcement more expansive authority to conduct searches of computers. How the new procedural rule will interact with core constitutional values and established legal principles, as well as what the practical consequences of the rule are, remain open questions.

(1) Fourth Amendment

The proposed changes may well fall afoul of the Fourth Amendment. As I have discussed in a previous blog post, the Fourth Amendment protects people against unreasonable searches and seizures. It does this by requiring the government to obtain a warrant before conducting most searches, by requiring those warrants to be supported by probable cause, and by requiring the warrants to be particular about the location to be searched and the items to be seized. Continue reading

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In December 2016, a federal policy-making body known as the Judicial Conference of the United States made it much easier for federal law enforcement to hack into private computers and mine personal data regardless of the computer’s location. It did this simply by changing Rule 41 of the Federal Rules of Criminal Procedure. The Supreme Court approved the changes in April 2016, and Congress recently declined to take steps to block or delay the changes. That means that the changes have now gone into effect, and law enforcement now will have a much easier time obtaining warrants to search computers—and possibly also have an easier time surviving constitutional challenges to those warrants.

What is Rule 41, And What Did the Change Do?

Federal Rule of Criminal Procedure 41 governs procedures related to search warrants and seizures. It governs what law enforcement must do in order to obtain and then execute a search warrant; what a magistrate judge must do to issue a warrant; and what a person must do to move for the return of property or suppression of evidence unlawfully obtained.

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Over the last several years, the Massachusetts criminal justice system has been rocked by misconduct in state-run drug labs. First, and so far most significant, Annie Dookhan, a chemist at the Hinton State Lab in Jamaica Plain, tainted over 42,000 state convictions by employing several different scientific shortcuts to boost her efficiency and productivity. Rather than meticulously testing each sample to determine whether or not it contained cocaine, heroin, or other suspected drugs, her practices over several years included “dry-labbing,” or combining samples from different cases and testing them all at once, then recording the results under each case; fabricating records that she tested and calibrated lab equipment as required by protocol, in order to save time; and contaminating samples that tested negative with drugs so that they would test positive. The Supreme Judicial Court has addressed cases involving Dookhan several times already. As if this were not disturbing enough, a second chemist at a different state lab, Sonja Farak, undermined the integrity of thousands of drug cases in Western Massachusetts over 8 years by using methamphetamine, cocaine, and a variety of other drugs while at work; stealing and consuming both standard comparison drug samples and drugs that were seized by police; and using lab equipment to manufacture crack cocaine. Between Dookhan and Farak, prosecutors have (presumably unknowingly) used fabricated or unreliable evidence to convict or induce guilty pleas from thousands of people in Massachusetts. Continue reading

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Like that of many states, Massachusetts law provides for enhanced criminal penalties for specified drug offenses committed in close proximity to parks or schools. Defendants who commit such offenses in so-called “school zones,” which the statute defines as any location within 300 feet of a school of any kind, including any public or private accredited preschool or Head Start facility, or a “park zone,” defined as any location within 100 feet of a public park or playground, at any time of day except between the hours of midnight and 5 a.m., are subject to a mandatory two year sentence, on top of any punishment imposed for the underlying crime. The statute is explicitly clear that “lack of knowledge of school boundaries” is not a defense; a person who is found to have committed a drug offense within the stated distance from a school is subject to the enhanced penalty regardless of whether they knew of the school’s location or even of whether the school was easily recognizable as such (an issue with some preschools and Head Start facilities, which are often located inside larger buildings primarily devoted to other purposes.) As draconian as this law remains, it is actually an improvement on the version of the law in place until 2012, under which “school zones” included any location within 1,000 feet of a school, regardless of the time of day.

In its decision in Commonwealth v. Peterson, issued on January 3, 2017, the Supreme Judicial Court (“SJC”) set a limit on the statute’s application for the first time. In Peterson, the defendant was a passenger in a car with three other people. When the car stopped at a traffic light at an intersection near a public park, the police officers in the car behind it determined that its inspection sticker had expired. They pulled the car over shortly afterward, at a location that was no longer within one hundred feet of the park. The ultimate results of the stop were the discovery of drugs and a semi-automatic weapon, and the arrest of the defendant, who was charged with a number of crimes including a violation of the school zone statute.

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