Articles Posted in Law Commentary

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In a recent decision issued by the SJC – Commonwealth v. Horne – the Court precluded “negative profiling” testimony. Specifically the Court held that it was improper to elicit testimony regarding the appearance of drug users, in conjunction with the argument that the defendant did not look like an addict and therefore must be a drug dealer.

The background was as follows. The automobile that the defendant was driving was stopped for a traffic violation. “The officer who conducted the stop … determined that the defendant’s driver’s license had been suspended.” When that officer, joined by another, attempted to arrest the defendant, he “forcefully resisted.” Eventually, the efforts of five officers were required in order to subdue the defendant and place him under arrest. “Thereafter, the arresting officers found nearby a clear plastic bag containing twenty-six individually wrapped ‘rocks’ of crack cocaine, totaling 3.87 grams. The defendant apparently had kept the bag in his boot, which came off during the melee.” An inventory search of the defendant’s vehicle revealed three cellular telephones, eighty-three dollars in cash, and a gun, but no drug paraphernalia. At the defendant’s trial, the Commonwealth’s expert, in addition to testifying about the packaging and valuation of illegal drugs and common practices of drug users and dealers, stated that the majority of crack addicts are “‘somewhat unkempt, very thin, physical appearances seem to be deteriorating, sometimes they’ll have rotted teeth or worn down teeth from constantly grinding their teeth based on the addiction.’” The prosecutor emphasized this testimony in his closing argument, stating “‘How do you know [the defendant] possessed [the crack cocaine] with the intent to distribute it, does he look like a drug addict?…. [C]rack cocaine addicts are skinny, they are thin, they have rotted teeth, they are drawn out. [The defendant is] a big man, he’s a big muscular man…. [The police officers] needed assistance to [subdue] him. He is not a drug addict; he possessed it with the intent to distribute it.’” “On appeal, the defendant argue[d] that it was error to allow [the expert] to testify as to the typical physical characteristics of crack cocaine addicts, maintaining that such testimony was inadmissible negative profiling evidence.” Continue reading →

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police-action-1618280-300x300The Supreme Judicial Court recently issued a decision stating that it is improper for police officers involved in the investigation of a case to be present in the grand jury during the testimony of other witnesses involved in the case. The conviction in the case, however, was not reversed. Rather, the SJC decided that the impropriety did not create a “substantial risk of a miscarriage of justice,” which is the legal standard for an appeal where the defendant’s attorney fails to properly preserve the issue at the trial level, but it is raised on appeal.

The background of the case – Commonwealth v. Holley – was as follows. The defendant was charged with murder. “Two police officers involved in the investigation of [the murder], who were witnesses before the grand jury …, were present in the grand jury room for most, if not all, of the other witnesses’ testimony. Both parties agree that the officers’ presence was improper. The defendant contend[ed] that this error rendered his indictment void ab initio, requiring not only the vacation of his conviction but also the dismissal of the indictment under” state and federal constitutional principles. “Alternatively, the defendant argue[d] that if the indictment was not void, he [wa]s nevertheless entitled to a new trial based on the ineffective assistance of trial counsel, who failed to move to dismiss the indictment or even to raise the issue prior to trial.”

In its decision, the SJC stated that it “disapproved of the presence [in the grand jury room] of ‘unauthorized’ individuals, especially investigating police officers, because their presence has the potential to compromise the integrity of the process by, among other things, influencing witness testimony through intimidation…. Accordingly, we have held that ‘the presence of an unauthorized person before a grand jury will [where sufficient prejudice is shown] void an indictment.’ [Commonwealth v.] Pezzano, [387 Mass. 69,] 72-73 [1982].” In the Court’s view, such an irregularity “does not render [a] defendant’s indictment void ab initio.” The Court opined that in the present case, it was not necessary to void the indictment where “the defendant … failed to show that he was prejudiced by either the grand jury irregularity or his counsel’s failure to raise the issue” prior to trial. The Court noted, among other factors, that “[t]he defendant ha[d] not shown that the presence of the police officers caused those who testified before the grand jury to feel coerced or intimidated.” Continue reading →

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gavel-1238036-300x201In a recent case issued by the Appeals Court – Commonwealth v. Doe – the Court vacated the trial court judge’s order “denying [the defendant’s] petition to seal his criminal record in a case terminated by a nolle prosequi.” A nolle prosequi is a declaration made by a prosecutor in a criminal case stating that the case against the defendant is being dropped. It is essentially an admission that the charges cannot be proved, that evidence has demonstrated either innocence or a fatal flaw in the prosecution’s claim or the district attorney has become convinced the accused is innocent. As grounds to support its decision reversing the denial of the motion to seal, the Appeals Court reasoned that, “in balancing the interests of the public and the defendant, as required by Commonwealth v. Pon, 469 Mass. 296 (2014), the judge may have relied upon a factor that is inconsistent with Pon’s revised standard for discretionary sealing, and may have placed too much importance on another factor that was of limited concern in the circumstances.”

The background was as follows. “Doe was indicted for murder in the first degree in connection with the death of his six month old son,” purportedly due to “shaken baby syndrome.” “[W]hile the case was pending, it was learned that Doe’s wife and her family had a previously unknown history of collagen vascular disease, a genetic condition that was relevant to determining the child’s cause of death. This information was supplied to the prosecution and the medical examiner, who … revised his ruling on the manner of death from ‘homicide’ to ‘could not be determined.’ Shortly thereafter, … the Commonwealth filed a nolle prosequi, stating that it could not ‘meet its burden of proving cause of death beyond a reasonable doubt[.’]” “Doe [then] filed a petition, pursuant to G.L. c.276, §100C, … requesting discretionary sealing of the case record because it impaired his ability to obtain employment.” The judge denied the motion “‘without prejudice to the defendant to renew upon a showing of changed circumstances.’”

In its decision, the Appeals Court discussed the significance of the decision in Pon, which “replaced the stringent standard [for sealing] set forth in Commonwealth v. Doe, 420 Mass. 142, 149-152 (1995), with a new standard more in keeping with the legislative policy reflected in the 2010 revision of the criminal offender record information (CORI) statutory scheme. That policy is to ‘provid[e] the public, and particularly employers and housing providers, with access to certain criminal records in order to make sound decisions while also enabling the sealing of criminal records where so doing would not present public safety concerns.’ Pon, 469 Mass. at 303.” Under Pon, a “judge must balance the public interests at stake against the interests favoring privacy,” in deciding whether there is “good cause” to seal a defendant’s criminal record. Turning to the present case, the Appeals Court “infer[red] that the [judge’s] balancing process was influenced by one or both of two arguments [by the Commonwealth] rooted in circumstances that could change over time: first, that Doe had not applied for work since the nolle prosequi and, hence, could not demonstrate that his record had disadvantaged him in obtaining employment; and second, that it was too early to terminate the public’s access to Doe’s court records, because defense counsel in another shaken baby syndrome case pending in the same county was expected to use evidence in Doe’s case to impeach the credibility of an expert witness common to both cases.” Continue reading →

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money-shot-1559546-300x200In Commonwealth v. Martin, the SJC addressed whether defendants whose convictions were vacated as a result of the Annie Dookhan drug lab scandal should be reimbursed for court fees paid prior to the allowance of the motion to vacate. The SJC decided against such reimbursement, stating that “there [was] no statutory authority” for the return of such monies.

The background of the case is as follows: in 2011, the defendant pleaded guilty to a drug offense and received a probationary sentence whose conditions required the payment of certain fees mandated by statute: “a one-time victim-witness assessment of fifty dollars, as well as a monthly probation supervision fee of sixty dollars and a monthly victim services surcharge of five dollars (collectively, probation fees).” One year later, “after the revelation of misconduct at the William A. Hinton State Laboratory Institute …, a judge granted the defendant’s unopposed motion to withdraw his guilty plea on the ground that Annie Dookhan, the subsequently discredited analyst at the center of the misconduct allegations, [had] performed the analysis of the substances seized during the defendant’s arrest.” Upon the granting of the defendant’s motion to withdraw his plea, “[t]he Commonwealth entered a nolle prosequi on the underlying complaint. Thereafter, the defendant filed a motion for return of property, including probation supervision fees ($780) paid during the term of probation and the victim-witness assessment (fifty dollars).” The motion was denied.

In its decision, the SJC rejected the defendant’s argument “that the language in [G.L. c.258B,] §8[,] requiring the return of the victim-witness assessment where a conviction is ‘overturned on appeal’ also applie[d] to this case where the conviction was vacated as a consequence of the judge’s order granting the defendant’s motion to withdraw his guilty plea.” The Court explained that “[h]ere, the defendant did not appeal from his conviction; rather, his conviction was vacated after a judge … granted postconviction relief through Mass. R. Crim. P. 30, … and the Commonwealth subsequently entered a nolle prosequi. That procedural difference is dispositive here. The plain language of §8 specifically limits persons entitled to a refund to those whose conviction or adjudication of delinquency was overturned on appeal.” The Court also rejected the defendant’s contention that G.L. c.276, §87A, “provide[s] [a] statutory basis for the return of probation fees where a defendant’s conviction is subsequently vacated.” In the Court’s view, the statute “is silent as to a defendant’s entitlement” to recoup probation fees. Continue reading →

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smart-phone-icon-1236402-139x300In a recent article in the Worcester Telegram, a Superior Court judge ordered the Commonwealth to turn over certain discovery to the defense attorney in a murder case – namely all electronic communications between state police troopers involved in investigating the case.

The defendant is charged with first-degree murder in the stabbing death of a 23 year old man. The Commonwealth claims that the defendant and victim were involved in a drug deal gone bad in Gardner, MA. The defendant is also charged with armed assault with intent to murder and aggravated assault and battery with a dangerous weapon (knife), in relation to the stabbing of a second victim, and is charged with assaulting a third person with a knife. The defendant pled not guilty and, according to his lawyer, he was possibly the victim of an armed robbery and has a strong self-defense claim.

On the day of the Superior Court arraignment, the judge ordered the Commonwealth to produce the discovery in question: the text messages and emails between law enforcement agents involved in investigating the case. The judge told the Commonwealth that if problems arose in obtaining the discovery, the prosecution could request a further hearing on the issue. After the Commonwealth provided the defense attorney with some of the electronic communications, the Commonwealth asked the court for relief from the judge’s order, arguing that “additional discovery of this material constitute[d] a significant burden with no corresponding showing of relevance and materiality.”

The Commonwealth relied on an affidavit written by a state police sergeant which stated that at the time of the investigation, the sergeant and other state police detectives assigned to investigate the case were using Apple iPhone 5 cellphones. These phones were reportedly equipped with multiple applications used on a daily basis, including an email exchange server that runs on an Outlook platform. The affidavit stated that the phones are equipped with encryption that requires detectives to enter a pass code and then use a fingerprint access feature. The affidavit went on to say that the state police had made several attempts to comply with the court’s discovery but were unsuccessful in accessing the data in their phones. The affidavit specified that to access the data, the police officers would have to disable and remove their email exchange service from the phone. According to the affidavit, this is a significant undertaking requiring the phone to be out of service for at least several hours. The affidavit also indicated that in trying to re-establish the email in the phone after the information was extracted, valuable information stored in the phone might be lost. The affidavit stated that it would be a significant burden on the investigative resources of the state police and would potentially require outside consultation and/or software that the state police do not currently use. The affidavit explicitly stated that emails could be preserved, as they do not exist solely on the phone, but that text messages “are the difficulty,” as extraction would require someone to scroll through the phone and this would be an extremely tedious process. Continue reading →

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need-an-ambulance-1512594In a decision recently issued by the Appeals Court – Commonwealth v. Palacios – the Court held that ambulance records are admissible under G. L. c. 233, § 79G, which governs the admissibility of hospital records. Therefore, the Court held that the trial judge’s decision to admit such records was not an error.

The background of the case was as follows. “The defendant ran a stop sign and crashed into … another driver’s car…. The responding police officer found the defendant to be glassy-eyed and unsteady on her feet…. [I]n response to [the officer’s] questioning, [the defendant stated] that ‘she had been drinking and had approximately two to three drinks.’ Because the defendant claimed to be injured,” she was transported by Cataldo Ambulance Services to Whidden Memorial Hospital. “Cataldo emergency medical technicians (EMTs) made several observations of the defendant, which they recorded on a form that was admitted as an exhibit in redacted form. The ‘clinical impressions’ section of the form states, ‘Primary Impression: pain — arm; Secondary Impressions: intoxication — alcohol acute.’ The ‘narrative’ section of the form include[s] details of the defendant’s condition, including references to her consumption of alcohol: ‘…. Pt is A&Ox4 but smelling of alcohol…. [P]t … complaining of left arm pain…. [B]ecause she is inebriated pt is counseled to be transported to hospital for evaluation and agrees.’ The Whidden records of the defendant’s visit were also admitted in evidence in redacted form. [Those] records convey that the defendant … had neck and arm pain. [They also] contain notes about the defendant’s alcohol consumption including, ‘alcohol intoxication’; ‘Acute alcohol intoxication’; ‘Patient … also intoxicated’; and ‘Pt admits to drinking tonight.’” The defendant was ultimately charged with operating under the influence alcohol under G. L. c. 90, § 24.

At trial, the Commonwealth filed a motion in limine, seeking to admit both the Cataldo and Whidden records under G.L. c.233, §§79 and 79G. “The defendant filed a cross motion to exclude the records, arguing that the references therein to intoxication were inadmissible because they were not sufficiently related to her treatment or medical history and touched on the ultimate issue of her guilt. The judge ordered the words ‘alcohol acute’ to be redacted from the ambulance records, and the words ‘alcohol intoxication’ to be redacted from the hospital records. Both sets of records, so redacted, were admitted in evidence over the defendant’s objection to the remaining references to her intoxication.” On appeal, “[t]he defendant claim[ed] that the ambulance records were erroneously admitted as hospital records [and] that references to her intoxication should have been redacted.” Continue reading →

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shiny-brain-1150907According to an article in New York Magazine, the criminal justice system needs to reconsider it’s approach to offenders that are young adults in light of recent findings on brain development.

The article states that the United States criminal justice system has “been notorious for its proclivity for imprisoning children,” noting the existence of laws that allow prosecutors and judges to treat juveniles like adults within the system. This is accomplished in Massachusetts by transferring juvenile cases to adult court under certain circumstances (i.e., when the juvenile is alleged to have committed a crime that is deemed sufficiently serious), and prosecuting them as “youthful offenders.” According to the article, the United States is “an outlier” in terms of the rates at which it imprisons children, including juveniles that receive life sentences. The article notes that this has caused a “great deal of outrage and advocacy” from human rights organizations. These organizations argue that juveniles should be treated more leniently in light of the fact that their decision making capabilities is compromised due to their age – namely, their brains are not fully developed and therefore they lack the ability to control impulsivity and make sound judgments in the way that the fully developed adult brain does.

The article references one writer, Dana Goldstein, who takes this argument one step further by advocating for similarly lenient treatment for young adult offenders in addition to juveniles. The article states that “the more researchers study the brain, the more they realize that it takes decades for the organ to develop fully and to impart to its owners their full, adult capacities for reasoning.” According to the article, “the research suggests that brain maturation continues into one’s twenties and even thirties.”

Continue reading →

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balance-1172786In a recent decision – Commonwealth v. Sylvester – the Supreme Judicial Court discussed whether an attorney’s failure to advise a client of his obligation to register as a sex offender during a 2002 plea constituted ineffective assistance of counsel. The decision, however, fails to address how additional sex offender registration requirements imposed after 2002 would impact the Court’s analysis of this issue.

The background was as follows. The defendant pleaded guilty in 2002 to a charge of indecent assault and battery, as a result of which he registered as a sex offender. In 2008, the defendant pleaded guilty to a charge of failure to register as a sex offender “and a Superior Court judge sentenced the defendant to probation for three years and imposed community parole supervision for life [CPSL].” In 2013, the defendant filed a motion to withdraw the 2002 guilty plea, in which he argued that his plea counsel was ineffective in failing to communicate a full appreciation of the consequences of pleading guilty to a sex offense. Specifically, the defendant asserted (1) that plea counsel failed to explain that he “‘might have to register with the police indefinitely’”; and (2) that he would not have pleaded guilty if he had “‘fully understood that ‘registering’ meant that [he] would … someday be subject to lifetime community parole.’” The judge denied the defendant’s motion.

In its decision, the SJC noted that “‘[g]enerally, under Massachusetts law, defense counsel’s failure to inform a defendant of collateral or contingent consequences of a plea does not render a plea involuntary[,]’ Commonwealth v. Roberts, 472 Mass. 355, 362 (2015), quoting [Commonwealth v.] Shindell, 63 Mass. App. Ct. [503,] 505 [2005],” and that “the Appeals Court [in Shindell] [had] concluded, on this basis, that defense counsel is not constitutionally required to warn of sex offender registration consequences.” Nonetheless, the SJC considered the defendant’s argument that Padilla v. Kentucky, 559 U.S. 356, 364-366 & n.8 (2010), regarding counsel’s failure to warn of the immigration consequences of a plea, had “abrogated the distinction between direct and collateral consequences and created a new framework for determining whether a consequence of conviction has a uniquely ‘close connection’ to the criminal process to require warnings under the right to counsel guaranties of the Sixth Amendment. Under that framework, the defendant assert[ed] that, to provide constitutionally effective assistance, counsel must warn clients about consequences of sex offender registration when they are considering whether to plead guilty to a ‘sex offense’ as defined in G.L. c.6, §178C.” In response to the defendant’s contention, the SJC “reiterate[d] [its previously expressed] conclusion that the only mandate stemming from the Padilla case is that deportation may not be treated as a collateral consequence outside the scope of the Sixth Amendment.”  Continue reading →

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jail-1211438In Commonwealth v. Laltaprasad, the SJC ruled that G. L. c. 211E, §3(e), does not “authorize[] a sentencing judge to depart from the mandatory minimum terms specified by statute for subsequent drug offenses,” where “the Legislature has not yet enacted into law sentencing guidelines recommended by the Massachusetts Sentencing Commission.”

The background was as follows. After a jury convicted the defendant of possession with intent to distribute heroin and cocaine, “[t]he defendant pleaded guilty to the subsequent offense portion of each of these charges.” At sentencing, the “judge stated that she would depart downward from the mandatory minimum sentence provisions of the two subsequent offense statutes [G.L. c.94C, §32(b) and G.L. c.94C §32A(d)], each of which requires a minimum term of three and one-half years in State prison, and would impose instead a sentence of two and one-half years in a house of correction.” The Commonwealth moved unsuccessfully for reconsideration and then sought relief pursuant to G.L. c.211, §3. “The single justice reserved and reported the case to the full [SJC] without decision.”

At issue in this case was the proper interpretation of c.211E, §3(e), … part of a chapter of the General Laws entitled ‘Massachusetts Sentencing Commission’ that was added by the Legislature in 1996…. Section 3 of c.211E focuses specifically on the responsibility of the commission to recommend sentencing guidelines…. Although the sentence ranges to be set by the guidelines are to be presumptive in most circumstances, §3(e) provides: ‘Except for the crimes set forth in [G.L. c.265, §1, (murder)], the sentencing judge may depart from the range established by the sentencing guidelines and impose a sentence below any mandatory minimum term prescribed by statute if the judge sets forth in writing reasons for departing from that range on a sentencing statement … based on a finding that there exists one or more mitigating circumstances that should result in a sentence different from the one otherwise prescribed by the guidelines and below any applicable mandatory minimum term.’” In its appeal from the judge’s departure from the mandatory minimum sentence in this case, “[t]he Commonwealth argue[d] that the judge lacked authority to reach this result because the mandatory minimum sentence departure authorization in §3(e) only becomes operative when the [Massachusetts Sentencing] [C]ommission’s recommended sentencing guidelines are ‘enacted into law’ by legislative vote, as mandated by c.211E, §3(a)(1), and the Legislature has not done so to date.” Continue reading →

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The issue of Annie Dookhan, the disgraced state chemist convicted of tampering with drug evidence in thousands of criminal cases, was once again in the headlines this past week.

An article published by Courthouse News Service, addressed a recent hearing relating to the cases impacted by Dookhan’s misconduct. During the hearing, which took place before the full panel of the Supreme Judicial Court, the attorneys from the ACLU, the public defenders, and the Commonwealth’s district attorneys once again argued about how to most effectively handle the 34,000 plus cases tainted by Dookhan’s conduct.

The attorneys from the ACLU and public defenders asked the SJC to issue a blanket order vacating the sentences of all those impacted by Dookhan on the ground that the state’s district attorneys have failed to remedy the problem within a reasonable time frame. Matthew Segal, legal director for the ACLU of Massachusetts, argued that “What has happened since the exposure of Dookhan’s misconduct is a failure to deliver justice,” noting that it took four years for the DA offices to produce a list of those defendants affected. “What we’re talking about now is the integrity of the system itself.”

The article states that when the list of 24,481 cases in which Dookhan impacted the guilty verdict was released in May, the state sent out notices to 20,916 people, of which 5,762 came back as “return to sender.” Of the remaining letters, only 779 were mailed back. Susanne O’Neill of the Norfolk DA’s office argued that this was because many of those affected were only partially impacted by Dookhan, as other evidence also contributed to their convictions. She also argued that those who have already served their sentences would be reluctant to reopen that part of their lives.

O’Neill’s point, however, was quickly challenged by SJC justice Geraldine Hines, who responded “In what world does a defendant who has been convicted on evidence that we assume was attributable to government misconduct, in what world do they not want to make that right? It sounds like the Commonwealth is saying that this class of people doesn’t care. I cannot imagine that if people are given notice and are aware of their rights that they would not be like everybody else and want justice. Continue reading →

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