Law Commentary

Published on: June 14, 2014

SJC Strikes Down Lifetime Community Parole for Sex Offenders

Up until this week, Massachusetts law allowed for the imposition of community lifetime parole (CPSL) under G. L. c. 127 § 133D. CPSL is intensive parole supervision by the parole board. It may only be imposed after a defendant is convicted of a sex offense. A CPSL sentence begins after a defendant has completed a committed or probationary sentence on the underlying criminal offense, and lasts for life. While on CPSL, a defendant is subject to a set of mandatory conditions, as well as various other conditions, that may imposed at the discretion of the parole board. If a defendant violates a condition of CPSL, the parole board is required to send him back to jail – for 30 days for the first violation, 180 days for the second violation, and 1 year for every violation after that.

This past week, however, in Commonwealth v. Cole, the Supreme Judicial Court determined that the statute authorizing CPSL is unconstitutional because it violates the separation of powers doctrine. In Cole, the defendant pled guilty to a sex offense and was classified as a level 2 sex offender. He was required to register with the Sex Offender Registry Board (SORB), and provide SORB with notice of any change of address. The defendant failed to notify SORB that he had moved from Brockton to Taunton and was charged with failure to register. He pled guilty and was sentenced six months probation and CPSL. The defendant completed his probationary term and began his CPSL sentence. Once his CPSL sentence was imposed, the defendant filed a motion to correct his sentence on the ground that he should not have been sentenced to CPSL for several reasons, including the fact that CPSL is unconstitutional under the separation of powers doctrine.

In its decision, the SJC noted that even though CPSL is referred to as “parole,” it is much more similar to probation. Specifically, when a person is on parole, the parole board has the authority to release a person from his committed sentence if the board finds that that person will live and remain at liberty without violating the law and the release is not incompatible with public safety. The board can establish and enforce conditions of parole. If a person violates those conditions, the board has the authority to send him back to jail, but only for the remainder of the original committed sentence – for example, if the person was sentenced to 2 years in prison, was paroled after 1 year, and violated a condition of parole, the board could only send him back to jail for the remaining year left on the sentence – the board does not have the ability to extend the original term of incarceration, and therefore could not order the person to be serve anything beyond the original 2 years. In contrast, with CPSL, the board does have the authority to send a person back to jail for longer than the original sentence, thereby increasing the term of imprisonment and ordering additional incarceration above and beyond what the court originally ordered – as stated above, 30 additional days for the first violation, 180 additional days for the second violation, and an additional year for every violation after that.

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Published on: May 22, 2014

SJC Rules that Raise the Age Legislation is Not Retroactive

By Daniel Cappetta

This past Tuesday, the Supreme Judicial Court issued a decision in Commonwealth v. Watts. The decision held that the Raise the Age legislation, which raised the age of defendants who could be charged in adult court from seventeen to eighteen, is not retroactive, and therefore does not apply to cases that were pending at the time the law was enacted on September 18, 2013.

The Watts decision addressed two cases involving seventeen year old defendants that were charged prior to the enactment of the Raise the Age legislation, but whose cases were pending at the time the law was passed. After the passage of the law, both of the defendants moved to dismiss the charges against them on the ground that the District Court no longer had jurisdiction over them because they were seventeen years of age at the time the alleged offenses occurred and when the criminal proceedings began. The respective trial court judges denied the motions and both of the defendants filed for further appellate review.

In making its decision, the SJC noted that, under G. L. c. 4, § 6 and other applicable case law, a newly enacted statute is presumptively prospective – meaning that it only applies to charges brought after the enactment of the statute. There are only two exceptions to this rule – where solely prospective application would: (1) be inconsistent with the “manifest intent” of the legislature; or (2) be “repugnant to the context of the same statute.”

As to the first exception, the presumption of prospective application is inconsistent with the manifest intent of the legislature if the legislature includes a clearly expressed intent for the statute to apply retroactively. The SJC found, however, that there was no such clearly expressed intent in the Raise the Age legislation. The Court pointed to the language of the legislation, which states both that “no criminal proceeding shall be begun against any person who prior to his eighteenth birthday commits an offense against the laws of the commonwealth . . . without first proceeding against him as a delinquent child,” and that the legislation “shall take effect upon its passage” (September 18, 2013).

The Court stated that, when the provisions were read together, the act provides that on and after the act’s passage on September 18, 2013, criminal proceedings may not be begun in the Superior Court or in the District Court against juveniles who were seventeen years of age at the time of the alleged offense. Therefore, the act only protects juveniles who are seventeen years of age and who are charged with committing a crime on or after September 18, 2013, and juveniles who were seventeen years of age at the time of an alleged offense committed before September 18, 2013, but who had not been charged until on or after September 18, 2013.

The Court found that there was no language in the Raise the Age legislation that indicated that it should be applied retroactively to cases involving juveniles who were seventeen years of age at the time of the alleged offense and whose criminal cases in the Superior or District Court were pending on September 18, 2013. Continue reading →

Published on: April 17, 2014

New Domestic Violence Bill Proposed at Statehouse

By Daniel Cappetta

A new bill – S 853 – was unveiled at the statehouse last Tuesday. The bill establishes new crimes related to domestic violence, new legal provisions to protect alleged victims, and new training for judges in relation to domestic violence cases.

Specifically, the bill creates a new charge for a first offense of domestic assault and battery, creating a classification system for criminal conduct that is alleged to have occurred in a domestic context. Such classification means that those involved in the criminal justice system, including judges, prosecutors, and police, would potentially be in a position to track a defendant’s history of domestic charges.

Under the proposed law, a first domestic assault and battery offense would be punishable by up to 2.5 years in the county House of Correction and a $5,000 fine. A second offense would be punishable by up to five years in state prison, or 2.5 years in the county House of Correction, and a $10,000 fine.

The bill would also create new charges for strangulation and suffocation. Currently, prosecutors classify strangulation as either an assault and battery, or attempted murder. The new offenses would be punishable by up to five years in state prison, or 2.5 years in the county House of Correction, and up to a $5,000 fine. Under special circumstances, the penalties for strangulation and suffocation could increase to up to 10 years in state prison and a $10,000 fine. Examples of such special circumstances include situations in which the alleged victim was pregnant, the alleged victim had a restraining order against the defendant, the alleged assault resulted in significant bodily harm to the alleged victim, or if the charges against the defendant were a second or subsequent offense – meaning that the defendant had been convicted of domestic charges in the past.

Additional proposed provisions of the bill include:

Exclusion of domestic violence cases from resolution by an “accord and satisfaction,” which is a statutory resolution of a criminal case (laid out under G. L. c. 276, § 55) that allows a defendant who is charged with an assault and battery or other misdemeanor to enter into a settlement (usually financial) with the alleged victim so that the alleged victim is “satisfied.” The defendant can then file the agreement with the court and ask the judge to dismiss the charges.
Addition of new charges for domestic assault near a courthouse, or with the intent to intimidate or prevent access to courts.
Increasing the penalties for domestic violence against people who are elderly or disabled.
Creation of a new state-level review team to investigate domestic violence-related fatalities and to help establish best practices to prevent domestic violence.
Delaying bail for defendants charged with domestic violence offenses by six hours (to give alleged victims additional time to get assistance if they want it).
Establishing up to 15 days of employment leave a year for alleged victims of domestic violence to deal with things like obtaining medical attention or attending court.
Creation of a separate police log for alleged domestic violence complaints.
Establishing fees for those convicted of domestic violence offenses, with the money going to a victim assistance fund.
Requiring the trial court’s chief justice to provide bi-annual training to court personnel on domestic violence.
Prohibiting the court from granting visitation rights to a parent convicted of rape without the child’s consent.

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Published on: March 14, 2014

Office of the Inspector General Issues Report on Hinton Lab Scandal

By Daniel Cappetta

This past week, the Massachusetts’ Office of the Inspector General (OIG) issued its long-awaited report on the Hinton drug lab scandal. The purpose of the OIG’s investigation was to look at how the Hinton lab was run for the 10 years before it was shut down in 2012, identify deficiencies in the practices and protocols, and determine the scope of the malfeasance at the lab.

The OIG found many major problems relating to Annie Dookhan, the disgraced chemist who is currently serving a 3-5 year sentence for her misconduct, and the way in which the drug lab was run. The OIG did not, however, go so far as to say that all results coming out of the lab were suspect. To the contrary, the OIG found that chemist Dookhan was the “sole bad actor.” The report therefore concluded that only the 40,323 cases in which Dookhan was directly involved needed to be “treated as suspect and be subject to careful review.”

Despite this finding, the report revealed that the way in which the lab was run was alarming, to say the least. The report was highly critical of the drug lab’s managers and the Department of Public Health leadership – the OIG slammed the management and operation of the lab, finding grave and systemic deficiencies on virtually every level. The report specifically stated that the lab “lacked formal and uniform protocols with respect to many of its basic operations, including training, chain of custody and testing methods. This lack of direction, caused in part by the Drug Lab’s lack of accreditation, allowed chemists to create their own insufficient, discordant practices.”

The OIG also found that for trafficking cases involving many drug samples, where every sample wasn’t tested, there were problems with how some chemists estimated the total weight.

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Published on: March 10, 2014

SJC Weighs in on Annie Dookhan

By Daniel Cappetta

Earlier this week, the Supreme Judicial Court issued its decision in Commonwealth v. Scott. In the decision, the SJC made it easier for defendants who were convicted of drug offenses involving Dookhan drug certificates, and who are now seeking to vacate their pleas.

In April 2011, Scott was arrested. Following his arrest, officers found what they believed to be crack cocaine on Scott’s person. The suspected cocaine was then sent to the Hinton Laboratory in Jamaica Plain for testing. The lab subsequently issued a drug certificate identifying the substance as cocaine. Dookhan was the primary chemist listed on the certificate (primary chemists conduct preliminary testing and prepare the sample for use in confirmatory tests, which are more comprehensive).

In September, 2011, before Dookhan’s wrongdoing had been made public, Scott pled out. After the lab scandal broke in August of 2012, Scott filed a motion to vacate his plea pursuant to Mass. R. Crim. P. 30(b) on the ground that his plea was not made knowingly and voluntarily, as is required under the law. Specifically, Scott claimed that his guilty plea invalid because he was not informed of Dookhan’s misconduct prior to the plea, and that her misconduct was material to his decision to plead out. The motion judge granted Scott’s motion to vacate his guilty plea and the Commonwealth appealed the judge’s order.

Under Mass. R. Crim. P. 30(b), a judge may grant a motion for a new trial any time it appears that justice may not have been done. Under Massachusetts law, due process requires that a plea of guilty be accepted only where the defendant’s plea was intelligently and voluntarily made. A plea is intelligent if the defendant is aware of the elements of the charges against him, and the procedural protections he is giving up by pleading out. A plea is voluntary so long as it is not coerced. A defendant’s plea may be deemed involuntary because of external circumstances or information that later comes to light, including the disclosure of government misconduct.

In Ferrara v. United States, 456 F.3d 278, 290 (1^st Cir. 2006), the First Circuit Court of Appeals analyzed a motion for a new trial in the context of government misconduct. The First Circuit concluded that when a defendant seeks to vacate a guilty plea as a result of underlying government misconduct, the defendant must show (1) the existence of “egregiously impermissible conduct” by government agents, which pre-dated the entry of his plea; and (2) that “the misconduct was material to his choice to plead guilty.”

To satisfy the first prong, a defendant must show (a) that there was egregious misconduct; (b) by a government agent, prior to the entry of the defendant’s guilty plea; and (c) that the misconduct specifically occurred in the defendant’s case, i.e. the defendant must show a nexus between the misconduct and his case.

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Published on: February 26, 2014

SJC Rules that Police Must Get a Search Warrant for Cell Site Location Information

By Daniel Cappetta

On February 18, 2013, the Supreme Judicial Court issued a decision in Commonwealth v. Augustine. In the decision, the court ruled that the Commonwealth must obtain a warrant supported by probable cause before getting cell site location information (CSLI) associated with a particular cellular telephone from cellular telephone providers. CSLI records include information about a subscriber’s location when using the cellular telephone, and therefore can be used to reconstruct the subscriber’s movements and location over time.

The underlying facts of the case are as follows: The victim was murdered in 2004. During the course of the criminal investigation, the police began to focus on Augustine, who had previously dated the victim. As part of the investigation, the police sought certain records from Augustine’s cellular phone provider (Sprint), including CSLI information that spanned two weeks, beginning on the date of the victim’s disappearance, August 24, 2004.

The Commonwealth applied for the records under a federal statute – 18 U.S.C. § 2703 – which governs the compelled disclosure of customer communications and records to law enforcement. The statute requires that law enforcement demonstrate “specific and articulable facts showing that there are reasonable grounds to believe that the . . . records or other information sought, are relevant and material to an ongoing criminal investigation.” The Commonwealth’s application for Augustine’s records was supported by an affidavit from one of the state troopers involved in the murder investigation. The affidavit stated that the police sought the records to determine the “general location” of Augustine and the victim at the time of the victim’s disappearance, and to potentially include or exclude Augustine as a suspect in the murder. A Superior Court judge allowed the Commonwealth’s application. An order compelling the production of the records was sent to Sprint and the CSLI records were subsequently provided to the Commonwealth. Augustine was charged with the victim’s murder 7 years later, in 2011.

During the course of the court case, Augustine filed a motion to suppress evidence of the CSLI on the ground he had a “reasonable expectation of privacy” in the records, and therefore the police were required to get a valid search warrant based on probable cause before obtaining the records (probable cause is a higher standard of proof than the “specific and articulable facts” required by 18 U.S.C. § 2703). A reasonable expectation of privacy exists if (1) a person subjectively expects privacy; and (2) the expectation is one that society as a whole would think is legitimate. Under both the Federal and Massachusetts Constitutions, a search in the constitutional sense occurs when the government’s conduct intrudes on a person’s reasonable expectation of privacy.

Augustine argued that because he had a reasonable expectation of privacy, and because the police failed to get a warrant supported by probable cause, his constitutional rights were violated, and therefore the Commonwealth should not be able to use the CSLI records against him at trial. The Commonwealth argued that there was no search in the constitutional sense because the CSLI records were business records of Augustine’s cellular served provider and therefore Augustine did not have a reasonable expectation of privacy in them. Continue reading →

Published on: January 7, 2014

SJC Lays Out Sentencing Scheme that Should be Applied Post Diatchenko

By Daniel Cappetta

On December 24, 2013, in Commonwealth v. Diatchenko, the Supreme Judicial Court ruled that all life-without-parole sentences for juvenile offenders, whether mandatory or discretionary, violate the prohibition against cruel and unusual punishment under Article 26 of the Massachusetts Declaration of Rights. This decision went beyond current federal law, laid out in Miller v. Alabama, which holds that mandatory life-without-parole sentences for juvenile offenders constitute cruel and unusual punishment under the 8th Amendment, but states that judges still have the discretion to impose such sentences following a hearing to determine whether life-without-parole is appropriate. Following the decision, the SJC issued a ruling in Commonwealth v. Brown, which lays out the sentencing scheme that should be applied to juveniles in light of Diatchenko.

Brown was charged with shooting and killing his friend on June 20, 2009. At the time of the shooting, Brown was just seventeen years old. On June 25, 2012, while Brown was still awaiting trial, the U.S. Supreme Court issued the decision in Miller. Brown was tried in August 2012 and convicted of murder in the first degree. Following the conviction, the sentence that the trial judge could impose was unclear. Under G. L. c. 265, § 2, all defendants over the age of fourteen who are convicted of murder in the first degree must be sentenced to life without the possibility of parole. In light of the Miller decision, however, the trial court judge was not legally allowed to impose a mandatory sentence of life-without-parole on a juvenile. The Commonwealth filed a petition for review of the issue by the SJC. Brown’s sentencing was stayed until the SJC issued a decision.

In its review, the SJC first addressed whether Brown is entitled to the benefit of the law established under Miller and Diatchenko and concluded that the rulings laid out in the cases should be applied to Brown. The Court reasoned that new law must be applied to prosecutions that are not yet final at the time the new law is established, and that Brown’s conviction was not yet final because he had not been sentenced.

The Court then went on to discuss what sentence the trial court judge could impose in light of Miller and Diatchenko. Both the Commonwealth and Brown’s attorney made arguments to the trial court judge regarding this issue. The Commonwealth took the position that the court had the authority to sentence Brown to life in prison without the possibility of parole on a discretionary basis. Further, The Commonwealth argued that if the judge declined to impose a sentence of life without parole, the court still had the authority to impose a sentence of life, and set the minimum term that the defendant must serve before parole eligibility – for example, the court could determine that the defendant should serve at least thirty years before becoming eligible for parole. Brown’s attorney took the position that the court had the authority to sentence Brown to less than a life sentence, such as twenty years, because of the ruling in Miller.

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Published on: January 5, 2014

SJC Holds that Imposition of Life Without Parole Sentences on Juveniles is Unconstitutional

By Daniel Cappetta

On December 24, 2013, in Diatchenko v. District Attorney for the Suffolk District, the Supreme Judicial Court held that the imposition of life without parole sentences on juveniles is unconstitutional. Diatchenko was convicted of first-degree murder for killing a man in 1981, when Diatchenko was just seventeen. At that time, all seventeen year olds accused of a crime were treated as adults, therefore Diatchenko was tried as an adult. Further, under G. L. c. 265, § 2, a first-degree murder conviction carries a mandatory sentence of life in prison without the possibility of parole. Therefore, following the conviction, Diatchenko was sentenced to life without parole. Diatchenko subsequently appealed the conviction. The appeal included the claim that his sentence violated the 8th and 14th Amendments to the United States Constitution and Article 26 of the Massachusetts Declaration of Rights, all of which prohibit cruel and unusual punishment. Diatchenko’s conviction was reviewed by the SJC and was ultimately affirmed, becoming final.

Thirty years later, however, on June 25, 2012, the United States Supreme Court issued a decision in Miller v. Alabama. Miller held that mandatory life sentences for defendants who committed crimes when they were under the age of eighteen are illegal because they violate the 8th Amendment’s prohibition against cruel and unusual punishment. In light of the Miller decision, Diatchenko filed a petition challenging the constitutionality of his sentence under G. L. c. 265, § 2, and seeking a declaration that Article 26 categorically bars the imposition of a sentence of life without parole for offenders who were under the age of eighteen when they committed first-degree murder.

In deciding Diatchenko’s petition, the SJC first addressed whether the rule set out in Miller is retroactive – i.e., whether the rule should apply to convictions that became final prior to the Supreme Court’s decision in Miller. The SJC acknowledged that a new constitutional rule is not generally retroactive, but went on to state that there are two recognized exceptions to this rule. First, a new constitutional rule is retroactive if the rule is “substantive,” meaning that the rule prohibits a certain category of punishment for a class of defendants because of the defendants’ status, or the offense. Second, a new rule is retroactive if the rule implicates an issue of fundamental fairness and accuracy of the criminal proceeding.

Bearing these exceptions in mind, the SJC concluded that rule set forth in Miller is substantive because it explicitly bars the imposition of a certain category of punishment – mandatory life without the possibility of parole – on a specific class of defendants – those under the age of eighteen at the time the offense was committed. Therefore, the SJC determined that the Miller rule should be applied retroactively to ensure that juvenile offenders “do not face a punishment that our criminal law cannot constitutionally impose on them.”

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Published on: December 4, 2013

SJC Holds that Juvenile Court Judges May Allow Motion to Dismiss Prior to Arraignment

By Daniel Cappetta

For a criminal charge to issue against an individual, a police officer must submit an application to the court for a criminal complaint. The application includes the alleged facts and the charges sought. A clerk magistrate then reviews the application to determine whether there is a sufficient basis for the complaint to issue. The specific legal standard is whether the information presented to the clerk magistrate establishes probable cause to believe that the individual committed a particular crime. If the clerk magistrate finds that there is probable cause, the complaint issues and the individual charged is brought to court and is arraigned on the charges.
An arraignment essentially consists of the court notifying the person of the charges, a plea of not guilty entering, and a bail argument. Once a person has been arraigned, the charge is entered onto the person’s Criminal Offender Record Information (CORI) or, in the case of juveniles, Court Activity Record Information (CARI). Following the arraignment, the case proceeds through the pre-trial process, and ultimately to some sort of resolution, such as a trial, a dismissal, or a plea. The pre-trial process may include a motion to dismiss on the ground that the application for the complaint lacked sufficient probable cause, and therefore the clerk magistrate should not have issued the complaint.

When a motion to dismiss for lack of probable cause is brought, the judge must review the information presented to the clerk magistrate and make his or her own determination as to whether the information was sufficient to establish probable cause. Even where a person wins a motion to dismiss, however, the charge remains on the person’s CORI or CARI. Further, although public access to a person’s CORI/CARI is limited, certain institutions, such as courts, public housing authorities, and certain employers, do have access to CORI/CARI information. Therefore, institutions with such access are able to see that a person has been charged with a crime, including the specific charge, even if the charges are ultimately dismissed for lack of probable cause.

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Published on: November 25, 2013

SJC Rules that Law Reducing School Zone Radius is Retroactive

By Daniel Cappetta

On August 2, 2012, the Massachusetts legislature passed the 2012 crime bill. Part of this bill reduced the minimum mandatory sentences associated with various drug crimes. This included a reduction of the size of “school zone” violations, which carry enhanced penalties for drug crimes committed near a school. The bill specifically reduced the radius encompassed by a school zone from 1000′ to 300′ from the school. Despite the fact that the reduction is a positive change, a number of practical questions about how the new law should be applied remain. One unresolved issue is how to treat pending cases, i.e., cases in which defendants were charged prior to the passage of the law, but convicted after the law was enacted.

In August 2013, the Supreme Judicial Court issued a ruling in Commonwealth v. Galvin that squarely addressed whether the changes in the minimum mandatory sentences should apply to pending cases. This week, in Commonwealth v. Bradley, the SJC reached a similar conclusion in relation to defendants with pending school zone charges.

In Bradley, the police searched the defendant’s dormitory room and recovered marijuana. The search occurred in 2010. The defendant’s room was approximately 700 feet from an accredited preschool facility, which qualifies as a “school” for the purposes of the statute. Shortly thereafter, the defendant was charged with possession with intent to distribute marijuana, and committing a school zone violation – specifically, distributing or intending to distribute a controlled substance within 1000′ feet of a school. The case was still pending at the time that the 2012 crime bill was enacted. After the passage of the bill, the defendant moved to dismiss the school zone violation, arguing that changes in the law – specifically the reduction of the school zone radius from 1000′ to 300′ – applied to pending cases. The trial court judge reported the question to the Appeals Court and the Supreme Judicial Court granted a request for direct appellate review. The SJC then answered the question in the affirmative, holding that the reduction in the school zone radius applied to all cases alleging a school zone violation for which a guilty plea had not been accepted or a conviction entered as of August 2, 2012, regardless of whether the alleged violation occurred prior to the enactment of the law.

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