Boston Lawyer Blog

Chism Murder Trial Raises Unsettling Questions Regarding Competency to Stand Trial

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

The ongoing trial of Philip Chism, which resumed yesterday following the Thanksgiving holiday, presents an unusual and disturbing set of issues in view of the terrible nature of the defendant’s actions, his extreme youth, and his apparently very serious mental illness. First, the events at issue are undeniably horrifying; Chism admittedly raped and killed his teacher, who was by all accounts a wonderful person and whose death was a tremendous loss. (Beyond that, I won’t recount the details here, but they have been set forth at length in the press.) Second, Chism, who was 14 years old when he killed his teacher, is being tried as an adult, which he undeniably is not and was not at the time of the crime; as Northeastern University law professor Daniel Medwed has written, treating children as adults is problematic regardless of how horrifying their actions are. And finally, Chism, who is now 16 years old, has exhibited signs of significant mental illness during his trial, repeatedly raising a question about whether he is actually competent to stand trial.

Chism’s trial was delayed so that his competency could be evaluated after he said during jury selection that he wished to be shot in the courtroom and claiming that voices told him not to trust his attorneys. The trial judge concluded, following that evaluation, that he was competent, and the case has moved forward. Chism is not currently contesting his competency to stand trial, despite a breakdown on the second day of his trial in which he refused to return to the courtroom, telling his defense counsel while shaking, twitching, and mumbling that he was “about to explode” and didn’t want to hurt anyone. The case thus sheds light on the difficult questions that arise when the criminal justice system must handle serious mental illness or disability.

Warrants May Not Be Enough to Make Stingrays Lawful Under the Fourth Amendment

Published on: November 10, 2015 | by Zalkind Duncan & Bernstein LLP

As I discussed in my last post, the U.S. Department of Justice recently published a new policy that generally requires federal law enforcement agencies to obtain a search warrant before using a cell-site simulator device, otherwise known as a stingray. But the policy itself does not create grounds for someone to bring a lawsuit for improper use of a cell-site simulator. People will have to look to the courts, and to the protections against unreasonable search and seizure offered by the Fourth Amendment and by individual state constitutions. While warrantless use of cell-site simulators likely violates the Fourth Amendment, it may be that even warrant-based searches inherently violate our constitutional Fourth Amendment right against unlawful searches because such warrants are, necessarily, general warrants that have long been prohibited.

The Fourth Amendment protects people from unreasonable searches and seizures. Typically, a person’s body, home, and belongings cannot be searched unless the government has first obtained a warrant from the court. The warrant has to be supported by probable cause—in other words, a particular and reasonable basis for believing that a crime was committed, and that a search will turn up evidence of that crime. Of course, Fourth Amendment protections are more complicated than that. For one thing, a person can be subject to a brief seizure and search if a law enforcement officer has “reasonable suspicion” that the person has or is about to commit a crime, or that the person has a weapon on them or in their vehicle. For another thing, law enforcement can use the “exigent circumstances” exception to conduct a search without a warrant, when they think they will not have time to get one. In practice, these exceptions can be abused, sometimes systematically and discriminatorily, by law enforcement (my colleague has discussed this here; the report on stop and frisk practices in Massachusetts, published by ACLU Massachusetts, provides additional insight into the issue). But the Fourth Amendment—and similar rights afforded by state constitutions—continues to be a valuable protection against unreasonable searches and seizures.

Federal Court Invites Further Briefing on Whether the Death Penalty Is Constitutional

Published on: November 6, 2015 | by Emma Quinn-Judge

Last week, a Massachusetts federal trial court opened the door to a direct constitutional challenge to the death penalty. “The court remains concerned,” Judge Mark L. Wolf wrote, “about the potential rate of error in federal capital cases generally and the risk of the execution of the innocent particularly.” The court therefore invited defense counsel to submit a “future, focused presentation” on whether the rate of error renders the death penalty unconstitutional.

This invitation to challenge the death penalty came in United States v. Sampson, the long-running federal death penalty prosecution of Gary Lee Sampson. Sampson was indicted in 2001 after three separate incidents in which he murdered three individuals and stole or attempted to steal their cars. He was charged federally for carjacking resulting in the deaths of two of the individuals, those killed in Massachusetts. He pled guilty in 2003 and was subsequently sentenced to death by a federal jury. That sentence was vacated in 2011 due to juror misconduct, and Sampson is now awaiting a new penalty-phase trial to determine his sentence. Last year, Sampson filed twenty-six motions raising constitutional issues, and on October 28, 2015, the trial court issued an 89-page decision denying all of Sampson’s motions.

Bad Facts, Bad Law: Appeals Court Ignores Free Speech in Upholding Anti-Harassment Order

Published on: October 23, 2015 | by David Russcol

We have previously covered on this blog the developing case law interpreting the Massachusetts law governing harassment prevention orders. To recap, the statute allows an individual suffering from a pattern of “harassment,” meeting certain requirements, to obtain a restraining order against the harasser. Because “harassment” could be a broad, almost limitless category, the Legislature defined it in the statute to include “3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property.” The Supreme Judicial Court clarified in O’Brien v. Borowski that, not only does a plaintiff need to prove three acts, but where speech or expression is involved, it must be in a category deemed unprotected by the First Amendment, such as “fighting words” or “true threats.”

In the recent case of A.T. v. C.R., a majority of the Appeals Court focused on the unsavory facts of the case before it, and lost sight of the broader principles of the First Amendment. In A.T., an eleven-year-old boy acted in a boorish and offensive manner towards one of his peers, an eleven-year-old girl. The incidents at issue were the following:

While video-chatting, the boy commented on the girl’s “jugs of milk” (meaning her breasts). A friend of his recorded a video of the conversation and sent it to her.
The boy told the girl that, if she showed the video to anyone, he would “make her life a living hell.”
In the school cafeteria, the boy described (or helped a friend describe) his sexual fantasy involving the girl, in which she was a pizza delivery girl.
Some time later, after he had withdrawn from the school, the boy approached the girl and said he wanted to “punch [her] in the titties.”

California Governor’s Veto of Bill Mandating Penalties for Campus Sexual Assault Allows Colleges to Exercise Discretion

Published on: October 15, 2015 | by Ruth O'Meara-Costello

A complex patchwork of federal laws, regulations, and both binding and non-binding “guidance” issued by federal agencies governs how colleges respond to allegations of sexual harassment or sexual assault on campus. Compliance with these laws is often a challenge for colleges, which have to respond to the federal government’s increasingly specific demands regarding the contents of their policies and conduct of adjudications in this area. From my perspective as a lawyer whose most frequent involvement in such campus proceedings is as an advocate for accused students and faculty, it often seems that the laws that govern in this area are becoming increasingly complex and yet no better able to deal effectively or appropriately with the complexity of real human relationships and interactions. I firmly share the goal of reducing sexual assault on college campuses and elsewhere, but believe that legislation should be carefully evaluated with an eye to its likely real-life consequences for students, whether complainants or respondents.

That is why, as states begin to legislate more frequently in this area, California Governor Jerry Brown’s veto of one proposed law was a refreshingly common sense choice. The bill would have required colleges to dole out at least a two year suspension to any student found responsible for a sexual assault of any kind. That requirement quickly prompts the question of how “sexual assault” is defined, and there the legislation provided little help, stating: “For purposes of this section, ‘sexual assault’ includes, but is not limited to, rape, forced sodomy, forced oral copulation, rape by a foreign object, sexual battery, or a threat of sexual assault involving a student, whether on or off campus.” That definition is incredibly poorly drafted; it is common sense that sexual assault would include the listed crimes, but by stating that it is “not limited to” those crimes, legislators left open the possibility that the definition could be wide enough to sweep up extensive conduct that most people would not consider so severe as to warrant a two year suspension from college, with its attendant loss of financial aid and removal from school housing.

DOJ Takes Necessary, But Not Yet Sufficient, Steps to Safeguard People from Warrantless Use of Cell-Site Simulator Technology

Published on: October 6, 2015 | by Zalkind Duncan & Bernstein LLP

Last month, The U.S. Department of Justice announced that it was implementing a new policy to govern the use of cell-site simulator technology, known also as “stingrays,” by federal law enforcement. The policy, available here, is intended to better protect suspects in criminal investigations and bystanders from intrusive, warrantless searches of data collected from their cellular phones.

A stingray is a small device—easily transportable in a car or even on someone’s person—that operates as a portable cell tower. Its signal reaches cell phones and other electronic devices in the area, which in turn transmit information through the stingray instead of through a proper cellular tower. The stingray can obtain information from all devices in the area, even those that are not in use. The problem is that the stingray is not owned or operated by a phone company. It’s owned and operated by the government, and law enforcement will collect and retain location and other identifying information from devices in range of the stingray. A police car that contains a stingray can drive down a road, or stop at a busy intersection, and collect data from electronic devices, without the owners of those devices having any idea that it is happening. The stingray works through walls, which means it can collect data from inside businesses and homes, and can accurately and precisely determine someone’s location. Even when the aim is to collect data from a specific person’s phone, it will also pick up data from bystanders who happen to be in the wrong place at the wrong time: that is, being in the vicinity of a law enforcement officer with a stingray. A stingray has other nasty side effects, too, including by draining device batteries by forcing them to transmit data even when they are not in use, and by disrupting cellular service to the area.

Judge’s Discovery Order in EEOC Transgender Litigation: Right Result, But Reason for Caution

Published on: September 28, 2015 | by Ruth O'Meara-Costello

I have written previously about the EEOC’s litigation on behalf of Aimee Stephens, whose employer—a Michigan funeral home—fired her when she announced that she was transitioning and would present as a woman at work in the future. At ZDB we have continued to follow this potentially groundbreaking federal litigation in the Eastern District of Michigan. In the most recent development, Magistrate Judge David R. Grand granted the EEOC’s motion for a protective order, seeking to prevent the defendant funeral home from violating Ms. Stephens’ privacy during the process of discovery in the case. While, given the nature of the discovery sought, this was patently the right outcome, the judge’s order could (and, in my view, should) have provided more assurance to future transgender litigants that they will be protected from attempts to use discovery as a tool to invade their privacy and humiliate them.

The discovery requests at issue sought detailed disclosures on numerous personal matters totally irrelevant to the ultimate issue in the case (which, following the court’s decision on the funeral home’s motion to dismiss, is whether the funeral home fired Ms. Stephens because she did not conform to its sex- or gender-based preferences, expectations, or stereotypes). Among those matters was Ms. Stephens’ medical history: the funeral home sought her medical and counseling records as well as asking whether she “currently has male sexual organs, including but not limited to, a penis and testicles”; whether she has had “any surgery performed to remove or modify any male sexual organs”; and whether she has undergone hormone therapy. The funeral home also sought to pry into Ms. Stephens’ family life, asking for detailed information on any past marriages (including all pleadings from any prior divorce), her biological offspring, her communications with her family regarding her transition, her wife’s feelings about the transition, and the current state of her marriage.

Massachusetts Appeals Court Decision in Commonwealth v. Daly Invalidates Conspiracy Conviction

Published on: September 18, 2015 | by David Duncan

While it is not a crime to think about committing a crime, or in general to talk about committing a crime, it is a crime to agree with someone else to commit a crime. Usually one additional thing is required, an “act in furtherance” of the conspiracy – something to demonstrate that the agreement is not mere idle talk. This is the crime of conspiracy. It requires two people. It is an amorphous crime, something prosecutors love and defense attorneys detest, because it has such open-ended reach.

Where the conspiracy is to distribute drugs, the “act in furtherance” is dispensed with. All that is necessary to commit the crime is that you agree with one other person to distribute illegal drugs. You don’t need to do anything – you only need to agree with another that you will do something.

The Massachusetts Appeals Court recently, in Commonwealth v. Daly, (Sept. 3, 2015) set at least a lower limit on the broad reach of the crime of conspiracy. Following in the path of a number of federal courts, the Appeals Court held that a buyer and seller in a drug transaction are not guilty of conspiracy to distribute drugs, despite the indisputable fact that they have by the nature of the transaction agreed to a sale of drugs that necessarily entails distribution from one to the other.

How to Seal Records of State Criminal Charges in Massachusetts

Published on: September 11, 2015 | by David Russcol

Anyone who has gone through the criminal justice system—whatever the outcome—knows that criminal charges can have a significant and lasting effect on their lives. Especially if someone has been convicted of a crime, but even if the case ended in an acquittal or a dismissal, information about criminal charges can affect their employment, housing, and other important aspects of life. What can someone do to literally “close the books” on past criminal charges and move on?

In the vast majority of cases, the possible remedy is to have records of these charges sealed. Sealed charges generally do not show up on a person’s CORI (criminal record) report and are not accessible to the public, although courts, law enforcement agencies, and a few other entities can access them. If asked in an employment application whether they have been convicted of or arrested for a crime, an individual whose records have been sealed can answer “no” under the law. A more drastic step than sealing would be expungement – deletion of all traces of a charge so that nobody knows it ever existed – but that is only available in very rare circumstances, such as when someone was accidentally charged instead of an individual with the same name due to a clerical error, or when someone was charged because an identity thief pretending to be them committed a crime. Even if charges are dropped because the defendant is innocent, expungement is not possible as long as the authorities intended to charge them with a crime.

In Massachusetts, Acquittal Evidence Is No Longer Admissible in New Trials

Published on: September 4, 2015 | by Zalkind Duncan & Bernstein LLP

Earlier this week, the Massachusetts Supreme Judicial Court (SJC), in Commonwealth v. Dorazio, SJC-11765 (Sep. 2, 2015), reversed Herbert Dorazio’s convictions for rape of a child and of assault with intent to rape a second child. The Court reversed the convictions because, during trial, the Commonwealth put on testimony that the defendant had assaulted a third child. The problem? Twelve years ago, Dorazio had been charged for that alleged assault and found not guilty. The Commonwealth argued that his acquittal did not matter, and that it could still try to persuade the jury that Dorazio committed that assault. The SJC disagreed. In Dorazio, the Court held that under the “doctrine of collateral estoppel,” the Commonwealth cannot introduce “acquittal evidence” (evidence of an alleged wrongdoing for which the defendant had been found not guilty) against the defendant in any subsequent trials.

It is fairly common practice for prosecutors to rely on evidence of “prior bad acts.” Evidence of prior bad acts can’t be used as proof that the defendant committed the crime for which he is on trial. But prior bad act evidence can be admitted for many other reasons, including to prove motive, plan, knowledge, absence of mistake, or lack of accident. A court doesn’t need to find that beyond a reasonable doubt that the defendant committed that prior bad act for the evidence to be admitted, either. Instead, the evidence has to satisfy a lower standard of proof, called “preponderance of the evidence.” Under Dorazio, prior bad acts are still admissible in Massachusetts courts—unless, of course, the defendant was tried and acquitted of having committed those prior bad acts. Defendants can no longer be required to redefend themselves against old charges.