Criminal Defense

Massachusetts House and Senate Agree on Some Aspects of Sweeping Criminal Justice Reform

Published on: December 27, 2017 | by David Russcol

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 ›

Massachusetts Changes its Felony Murder Doctrine for the Better

Published on: September 22, 2017 | by David Duncan

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 ›

SJC Opens Up Pretrial Diversion to Veterans, Even for Drunk Driving Cases

Published on: April 27, 2017 | by David Russcol

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 ›

The Rule 41(b) Amendments Have Serious Implications for our Constitutional Rights, Judicial Economy, and Global Surveillance Policies

Published on: April 21, 2017 | by David Duncan

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 ›

Big Changes to a Little-Known Rule: Rule 41(b) and the Unlawful Search that Paved Its Way

Published on: April 18, 2017 | by Zalkind Duncan & Bernstein LLP

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.

SJC Punts Again on Global Remedy, But Adopts New Protocol to Resolve Dookhan Drug Cases More Quickly

Published on: February 10, 2017 | by David Russcol

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 ›

In Commonwealth v. Peterson, Massachusetts Supreme Judicial Court Brings (a Little) Reality to Bear on Statute Criminalizing Drug Possession in “School Zones”

Published on: January 20, 2017 | by Ruth O'Meara-Costello

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.

Criminal Justice Reform: How Are We Doing in Massachusetts? (Part 2 of 2)

Published on: January 9, 2017 | by David Rangaviz

In my last blog post, I discussed some of the steps Massachusetts has taken in recent years to reform the state’s criminal justice system and the problems that remain in that system. In this post, I will discuss some reforms that Massachusetts should enact in the next legislative session.

For starters, Massachusetts must abolish mandatory minimum sentencing for drug offenses once and for all. Despite the liberal political leanings of many in state government, the state’s District Attorneys somehow remain staunchly opposed to any such reform. According to the title of a 2015 letter in the Boston Globe signed by nine of the Commonwealth’s DAs: “Opponents of mandatory minimum sentencing fail to account for reality.” That’s a bold choice of headline, particularly once you consider that those reality-ignoring opponents include Supreme Judicial Court Chief Justice Ralph Gants, who systematically tore apart the arguments in favor of mandatory minimums in a 2015 speech at UMass-Boston, as well as Catholic leaders from across the Commonwealth. CONTINUE READING ›

Criminal Justice Reform: How Are We Doing in Massachusetts? (Part 1 of 2)

Published on: January 4, 2017 | by David Rangaviz

At the federal level, efforts at criminal justice reform have been trapped in a legislative logjam. Despite considerable bipartisan consensus on the subject – including the backing of the notorious Koch brothers, who fund Republican candidates across the country – no significant legislation has passed through the United States Congress. That, despite the fact that the United States currently houses 2.2 million people in our prisons and jails. That translates to an incarceration rate of 693 per 100,000 people – a rate far in excess of Iran, Zimbabwe, and Singapore. A recent report by the Brennan Center for Justice concluded that 576,000 people who are currently incarcerated could be freed with little-to-no impact on public safety, at a savings of $20 billion annually. According to the report, 364,000 prisoners could be subject to alternatives to incarceration – treatment, community service, or probation – while another 212,000 have already served lengthy prison terms and could be directly released into the community.

At the federal level, the only steps to remedy the effects of our draconian system have come from the executive branch. Attorneys General Holder and Lynch have told their line prosecutors to pursue fewer mandatory minimum sentences, and Holder urged the U.S. Sentencing Commission to apply a recent reduction in drug sentences retroactively to reduce the sentences of thousands of those currently incarcerated. In addition, President Obama has commuted the sentences of 1,176 prisoners and issued 148 pardons – far more than any other president in history. But even those historic numbers are a mere drop in the proverbial bucket. With a federal prison population of 190,058 inmates, Obama’s clemency numbers constitute about 0.6% of that group. Those numbers will likely increase a bit before January 20^th, but executive clemency is a poor substitute for true legislative reform. CONTINUE READING ›

United States v. Tavares: What is a “Divisible” Criminal Statute and Why Does it Matter?

Published on: December 12, 2016 | by David Duncan

Early one morning in 2013, Verissimo Tavares fled the Boston Police on his motor scooter, and in the process tossed away what turned out to be a gun. He was charged and convicted in federal court of the crime of being a felon in possession of a firearm, and was sentenced to seven years, which was a “departure” from the recommended sentence of 10-12 ½ years that the federal sentencing guidelines prescribed.

Had Mr. Tavares been a newcomer to the criminal justice system, the guidelines would have produced a recommended sentencing range of between 3 and 4 years. His history, and in particular his previous convictions of “crimes of violence” doubled his sentence and could, without the departure, have tripled it. In particular, Mr. Tavares had previous convictions for resisting arrest and for assault and battery with a dangerous weapon, and both of those convictions were considered “crimes of violence” by the sentencing judge, with the result that his sentencing range skyrocketed.

Not surprisingly, Mr. Tavares appealed, and the First Circuit took up, for the umpteenth time, the question of what constitutes a “crime of violence” with a substantial impact on how much time a convicted defendant will have to serve. CONTINUE READING ›