Boston Lawyer Blog

New Case Illustrates the Strict Limits of Wiretapping in Massachusetts

Published on: November 25, 2014 | by Ruth O'Meara-Costello

The image of an informant wearing a wire or secretly recording phone conversations during a criminal investigation is extremely common on television and in the movies. In Massachusetts, however, the use of a wiretap as an investigative tool of law enforcement is subject to extremely strict limits and protections that go far beyond the limitations of the Fourth Amendment. In a November 21, 2014 decision in the case of Commonwealth v. Burgos, an appeal by a defendant convicted of a gang-related killing, the Massachusetts Supreme Judicial Court (“SJC”) reiterated that wiretapping is only available under Massachusetts General Laws chapter 272 section 99 in order to investigate narrowly delineated categories of crime.

The statute allows police to make recordings with the consent of only one party, acting undercover or as an informant, when investigating certain serious offenses committed “in connection with organized crime,” that is, “a continuing conspiracy among highly organized and disciplined groups to engage in supplying illegal goods and services.” In Burgos, police obtained a warrant to allow the defendant’s cellmate to secretly record him and were successful in obtaining a recording of his confession to a murder committed in retaliation for the killing of a member of his gang. Burgos was convicted largely on the strength of that surreptitious recording. On appeal, the SJC reversed the conviction, granting the defendant a new trial. Although the killing was gang-related–the affidavit in support of the warrant spoke of “two rival gangs . . . both involved in selling narcotics”–the affidavit failed to establish a nexus between the murder and “the narcotics or any other ongoing business enterprise of either gang.” In short, the court concluded, “A retaliatory killing alone, without a clear link to the goals of a criminal enterprise, does not amount to a connection to organized crime,” and the warrant was therefore invalid and the evidence illegally obtained.

Harvard Business School Study Shows that Subtle Gender Discrimination in Workplace Can Lead to Significant Disparities in Senior Leadership Roles

Published on: November 20, 2014 | by Monica Shah

Researchers at Harvard Business School (HBS) and Hunter College recently issued a report based on their survey of more than 25,000 HBS graduates on issues related to work, family responsibilities, and the gender gap in senior management positions in the workplace. The study concludes that these highly educated and ambitious professional women are and have been “leaning in,” well before Sheryl Sandberg coined the phrase, despite having significantly more childcare responsibilities than their male peers. Yet, these women have not earned senior management roles at the same pace as their male counterparts. These results make clear that gender discrimination is still rampant in the workplace, even in the upper echelons of corporate America.

The survey showed that HBS men have been given more powerful leadership roles than their female counterparts. Specifically, the men were significantly more likely than women to have direct reports, profit-and-loss responsibility, and positions in senior management. However, the gender gap between men and women cannot be explained by the conventional wisdom that women “opt out” of ambitious career tracks to be home with their children. Approximately 74 percent of HBS women in Gen X (ages 32 to 48) are working full time, and of both Gen X and Baby Boomers (ages 49-67), only 11 percent of women surveyed stayed at home full-time to take care of their children. Interestingly, these figures are almost identical to a study conducted almost two decades earlier by Deloitte & Touche, which showed that 70% of women who left Deloitte continued to be employed full time and fewer than 10% were out of the workforce to care for children.

The Federal and Massachusetts Anti-Discrimination Agencies Both Say That Parental Leave Must Be Provided Equally to Men and Women

Published on: November 13, 2014 | by Emma Quinn-Judge

Just over 36 years ago, on October 31, 1978, the Pregnancy Discrimination Act (“PDA”) was signed into law, extending the protections of Title VII to pregnant women. This summer, the Equal Employment Opportunity Commission (“EEOC”) issued new enforcement guidance on pregnancy discrimination, explaining how both the PDA/Title VII and the Americans with Disabilities Act provide protections for pregnant women in the workplace.

While much of the response to the EEOC’s new enforcement guidance has focused on the provisions that require employers to provide reasonable accommodations to pregnant women, another important aspect of the guidance – one that affects both men and women – has received substantially less attention. In the new guidance, the EEOC clarifies that under Title VII men and women are entitled to parental leave on an equal basis. To be precise, “similarly situated men and women” must receive parental leave “on the same terms.” What does this mean? It means that any leave provided to a new mother that extends beyond the “period of recuperation from childbirth” must also be provided to a new father. In other words, any leave provided for the purpose of bonding with a child or providing care for a young child – as opposed to leave that is provided for the purpose of recuperating from childbirth – must be provided equally to men and women. Moms and dads get the opportunity to bond with and care for their babies.

DOE Pays Lip Service to Fairness in New Rules, but Makes Clear that Accused Students’ Rights are not a Priority

Published on: November 4, 2014 | by Naomi Shatz

The Federal Department of Education (DOE) just released its final rules implementing changes to the Clery Act – the law that requires colleges and universities to report statistics about violent and sexual crimes on and near their campuses. While there are some positive developments in the new regulations, overall the requirements regarding disciplinary procedures illustrate that the DOE does not understand how its policies continue to undermine accused students’ rights to basic fairness.

The new rules make clear that students must be permitted to have an advisor of their choice during campus disciplinary proceedings, and that that advisor may be an attorney (34 C.F.R. 668.46(k)(2)(iii) and (iv)). This is a step forward from the DOE’s April 2014 guidance on Title IX, where it simply required that schools have the same rules for both students regarding whether they could have an attorney present during the proceedings. Many schools currently bar attorneys from participating or even from being in the room at all for disciplinary hearings. However, while a student’s advisor must be permitted into the hearing room, schools continue to be allowed to place any restrictions they want on the advisor’s participation. In other words, a student can bring an attorney, but the school can still prevent the attorney from speaking in the hearing. The rules also state that the school must provide the accuser and the accused “any information that will be used during informal and formal disciplinary meetings and hearings.” 34 C.F.R. 668.46(k)(3)(B)(iii). While this provision seems like an obvious requirement, currently schools are permitted, and often do, provide students with only a summary of the evidence that a school administrator deems “relevant” to the case, rather than the full body of evidence that has been submitted to the school.

Free Speech, Trespass, and the Massachusetts SJC’s decision in Glovsky v. Roche Bros. Supermarkets, Inc.

Published on: October 31, 2014 | by Ruth O'Meara-Costello

The Supreme Judicial Court’s October 10, 2014 decision in Glovsky v. Roche Bros. Supermarkets, Inc., is now the high-water mark in Massachusetts for the right to access private property, over the objection of the property owner, in order to fulfill a constitutional right. The decision addresses the right of a candidate for public office to solicit signatures for ballot access outside the entrance to a supermarket, but could have important implications for the exercise of free speech in Massachusetts. It also could have implications for certain criminal defendants; our firm has represented a defendant arrested for trespass when distributing literature or protesting on private property.

When a Roche Bros. employee told Steven Glovsky, a candidate for Governor’s Counsel, that the supermarket’s policy did not allow signature solicitation on its private property, preventing him from seeking signatures to get on the ballot, he proceeded to file suit. The SJC in Batchelder v. Allied Stores Int’l, Inc., 388 Mass. 83 (1983) (Batchelder I) previously upheld a candidate’s right under the Massachusetts Declaration of Rights Article 9 to seek signatures in the common areas of a shopping mall, comparing the mall to traditional public fora like downtown areas. In Glovsky, the SJC went a step further, clarifying that whether or not a location is functionally equivalent to a traditional public forum, signature solicitation must be allowed if the interests of the candidate outweigh the interests of the property owner. The SJC found that Glovsky had a “substantial interest” in soliciting signatures on the sidewalk of the supermarket, which was the only one in town, and that allowing such solicitation would not unduly burden Roche Bros.’ property interests by, for example, disrupting its business. (Glovsky’s suit was still unsuccessful, however, because the SJC found that the supermarket had not violated the Massachusetts Civil Rights Act.)

An Overview of the Department of Education’s New Rules Implementing the Clery Act

Published on: October 29, 2014 | by Naomi Shatz

Last week the Federal Department of Education released amendments to the rules implementing the Clery Act (20 U.S.C. § 1092(f)) – a law that requires colleges and universities to record and publish information about crime on and near their campuses. The new amendments require schools to collect and publish statistics regarding incidents of dating violence, domestic violence, sexual assault, and stalking as well as information about their procedures for handling these incidents in the schools’ annual reports. Some key changes made by this new rule include:

A New Definition of Rape: The definition of rape will be revised in the Clery Act, which previously used an 80-year-old definition used by the FBI. From 1927 to 2011 the FBI’s Uniform Crime Reporting Program – and by incorporation the Clery Act – defined rape as: “the carnal knowledge of a female, forcibly and against her will.” In 2011 the FBI updated its definition to reflect that both men and women can be raped, that physical force is not a required element of rape, and that rape may be accomplished by penetration with objects as well as sex organs. The definition that the FBI now uses, and that colleges and universities will now be required to use is: “Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”

New Categories of Bias for Hate Crimes: Under the Clery Act, schools are required to report hate crimes that occur on their campuses or school-owned property. Before the VAWA reauthorization, the categories of bias that could form the basis of a hate crime were: race, religion, ethnicity, gender, sexual orientation, and disability. The amendments add the category of “gender identity,” and separate out “national origin” from “ethnicity” to make more clear what types of bias are covered by the law.

So You’ve Been Accused of Sexual Assault or Misconduct on Campus. Here’s What You Need to Know

Published on: October 27, 2014 | by David Russcol

Colleges, universities, and graduate schools have had a reputation for not taking students’ complaints of sexual misconduct seriously. School disciplinary systems that were set up to deal with cheating, plagiarism, and more “academic” misconduct are ill equipped to deal with the complexities of interpersonal relationships that often come into play when there is conflict regarding sex. Undoubtedly some schools have swept accusations of rape or harassment under the rug. But in about 2001, the pendulum started to swing in the opposite direction, and today schools are under intense pressure from the federal government to investigate, convict, and discipline students as quickly as possible for any perceived incident of sexual misconduct, or else risk the “death penalty” of losing all federal funding. Because schools are no better equipped to deal with adjudicating sexual assault complaints now than they were 10 years ago, this well-intentioned reversal of attitudes frequently results in an unfair process where innocent students can be quickly railroaded to a preordained outcome in which they are branded rapists and expelled without any of the protections they would receive in the criminal justice system.

Old Wine in a New Bottle: Supreme Judicial Court Decision Reiterates Broad Scope of Fifth Amendment Protection

Published on: October 24, 2014 | by David Duncan

The Massachusetts Supreme Judicial Court (“SJC”) on Friday, October 10, 2014 decided Commonwealth v. Jason LeClair, No. SJC-11469, a Fifth Amendment case. It did not make new law but reiterated that the scope of the Fifth Amendment privilege is broad and liberally construed, something that many lawyers, including prosecutors, and many judges, including those in this case, do not seem to understand.

Sheehan was a witness in a domestic A&B case against LeClair, the defendant, and was called by the Commonwealth. He refused to answer questions by the defense about his consumption of drugs at the time of the incident, asserting his Fifth Amendment privilege. The prosecutor represented that the Commonwealth was not “interested” in prosecuting him and not “likely” to do so. On that basis the judge concluded that there was no substantial prospect that his answers could lead to his prosecution and ordered Sheehan to answer the questions. When he continued to refuse to answer, the judge found him in criminal contempt and sentenced him to a 90-day prison term. The sentence, and the trial, were suspended pending appeal. The SJC took the case on its own initiative.

Inga Bernstein and Rachel Stroup clear police officer of all charges

Published on: March 19, 2009 | by Zalkind Duncan & Bernstein LLP

Inga Bernstein and Rachel Stroup prevailed in a Boston Police Department appointing authority hearing, in which the department sought to discipline a police officer. The officer was cleared of all charges.