Law Commentary

Published on: October 20, 2013

Framingham Woman and Boyfriend Arraigned in Relation to July Murder

A Framingham woman and her boyfriend were arraigned in Middlesex Superior Court on October 16, 2013 for their respective roles in a murder. The boyfriend reportedly shot the alleged victim to death in July. The girlfriend allegedly took the gun and hid it near the train tracks after the shooting.

According to an article in the MetroWest Daily News, on the night of the murder, the alleged victim and his friend went to the girlfriend’s house to speak to her. While they were there, the alleged victim and the boyfriend reportedly got into a fight, and the alleged victim’s friend became involved as well. The alleged victim and his friend then got into their vehicle and began driving away. According to the article, the boyfriend shot the alleged victim in the head and the alleged victim’s friend in the chest as they departed. The friend then drove both himself and the alleged victim to hospital, where the alleged victim died as a result of his injuries. After the shooting took place, the girlfriend reportedly took the gun used by her boyfriend and hid it. Both the boyfriend and the girlfriend then identified a third individual as the shooter. The police arrested this individual, but the person was ultimately released once further investigation was completed. The boyfriend is charged with murder, while the girlfriend is charged with two counts of accessory after the fact, intimidation of a witness, possession of a firearm without a license, possession of a loaded firearm without a license, and assault and battery with a dangerous weapon.

Although the charges against the girlfriend are extremely serious, it is possible that the Commonwealth may be willing to strike a deal with her if she is willing to testify against her boyfriend. Such a deal could result in the reduction of her charges, a more lenient sentence, or the charges being dropped entirely. Under the Fifth Amendment and Article 12 of the Massachusetts Declaration of Rights, everyone has the right against self-incrimination. This means that a person cannot be compelled to testify against him or herself if that testimony is potentially incriminating and/or could result in criminal prosecution. This privilege, however, is not absolute. Under G. L. c. 233, § 20E, the Commonwealth may grant immunity to a witness – in other words, promise not to prosecute the witness – in exchange for the witness’ testimony. The statute specifically allows for a grant of immunity where certain serious Superior Court offenses (including murder) are involved, and the witness in question refuses to testify on the ground that the testimony would incriminate him or herself.

Continue reading →

Published on: August 12, 2013

Commonwealth v. Feeney – The Latest In Legally Sanctioned Police Lies

By Daniel Cappetta

New decision from the MA Appellate Court today in Commonwealth v. Kevin Feeney is utterly depressing. The facts involve a crash where a gun is found, but nobody is present in the vehicle when police arrive. The defendant was found about a block away from the car with a fresh cut to his forehead and generally looking like a guy who was just in a car crash. However despite his condition he denied being in the crash. Now you might think to yourself, “hey the police already had a pretty good case here tying Mr. Feeney to the crash.” After all Feeney was only a block away minutes after the crash, wearing only a t-shirt and jeans at 1:30 in the morning in January, with fresh injuries to his forehead, and smelling of a mixture of alcohol and deployed airbag. Of course by thinking this I can assure you that you are not Massachusetts State Police material.

This apparently was not a strong enough case for the Massachusetts State Police. In addition to these observations they felt the need to go the extra mile. So after Mr. Feeney was arrested and booked a ruse was devised to get him to tie himself to the scene of the crime.

For those who don’t know a “ruse” is the polite legal word police, prosecutors, and sometimes judges use to soften the fact that the police told a citizen a big fat lie. Saying the police “used a ruse” sounds a lot better than saying “the police told a big fat lie” In this case the big fat lie was telling Mr. Feeney that he was required to fill out a hand written inventory as part of the booking process related to certain property. It just so happened the property the police were referring to were items that were found inside the crashed car. Of course there was absolutely no such policy requiring this kind of hand written inventory, and even if there had been these items were not on Mr. Feeney at the time of his arrest, and therefore should not have been part of any booking inventory, let alone a fake one. Mr. Feeney complyied with what he believed was a required booking procedure and identified some of the property from the car as his own.

Continue reading →

Published on: November 15, 2012

Massachusetts Medical Marijuana Ballot Question Passes

By Daniel Cappetta

On Tuesday Massachusetts residents voted to pass a ballot initiative allowing the use of medical marijuana. The new law eliminates state criminal and civil penalties for the medicinal use of marijuana. The law will go into effect on January 1, 2013.

In order to get a prescription for medical marijuana, a person needs to have a qualifying illness, such as cancer, Parkinson’s disease, HIV, or AIDS. The person must also have a written certification from a physician with whom the patient has a doctor-patient relationship. The patient is allowed to possess up to a sixty-day supply of marijuana for medical use.

The law allows non-profit medical marijuana treatment centers to grow, process and provide marijuana to patients or their caregivers. The law also requires the Department of Public Health (DHP) to issue a cultivation registration to qualifying patients whose access to a treatment center is limited by financial hardship, physical inability to access reasonable transportation, or distance. The patients or their caregivers are only allowed to grow enough plants for a sixty-day supply of marijuana. DPH could revoke any registration for a willful violation of the law. Fraudulent use of a DPH registration could be punished by up to six months in a house of correction or a fine of up to $500, and fraudulent use of a registration for the sale, distribution, or trafficking of marijuana for non-medical use for profit could be punished by up to five years in state prison or by two and one-half years in a house of correction.

Despite the major changes this new law brings to Massachusetts, there is much that this new law does not do. The law does not give a person immunity under federal law. It does not supersede the Massachusetts laws prohibiting possession, cultivation, or sale of marijuana for nonmedical purposes. The law does not allow the operation of a vehicle while under the influence of marijuana. The new law also does not require a health insurer or government entity to reimburse for the costs of the medical use of marijuana. The law does not require any health care professional to authorize the medical use of marijuana. The law does not require any accommodation of the medical use of marijuana in any workplace, school bus or grounds, youth center, or correctional facility. Finally, the new law does not require any accommodation of smoking marijuana in any public place.

The new law will likely lead to confusion, due to the supremacy of federal laws, as well as those Massachusetts laws that supersede the medical marijuana law. Other states, such as California, have had residents face federal charges, despite the state laws that allow the sale and use of medical marijuana.

Continue reading →

Published on: August 12, 2012

New Massachusetts 3 Strikes Law Mandates Life Sentences For Many Repeat Violent Offenders

By Daniel Cappetta

3 strikes law.jpeg

Massachusetts has recently passed a law that amends its sentencing for violent criminal offenses. The new law creates what is known as a “three strikes rule.” A three strikes law, which is currently used in 26 other states including Texas, California and Arizona, makes criminals who have been convicted three times of specific violent crimes ineligible for parole, forcing them to serve a full sentence.

Governor Patrick recently signed a bill, known as Melissa’s Bill, into law. Melissa’s Law took effect on Aug 2, 2012. The bill is named for Melissa Gosule, a teacher who was murdered in 1999 by a repeat violent offender who had served only two years in prison for 27 prior convictions. The bill was created as a response to the perceived softness in Massachusetts’s laws regarding violent offenses. Under this law, a judge must now impose the maximum sentence for a person’s third violent felony offense. Many of these offenses require a life sentence when the offense constitutes a person’s third “strike.” The crime bill has drawn criticism because the three strikes constraint does not include judicial discretion. California, which pioneered the three strikes laws, is proposing to repeal or reform the law in a ballot initiative for November. The Massachusetts bill differs from the California 3 strikes law in that it has a more limited number of criminal acts that count as strikes.

The law lays out 41 crimes that constitute a strike. Persons convicted of a third strike will serve the maximum penalty and have no opportunity for parole. Nineteen of these key crimes call for a maximum sentence of natural life. This provision of the law means that Massachusetts has now gone from having one natural life felony with no possibility of parole, which was first-degree murder, to nineteen natural life felonies, if indeed the felony is a third strike.

The law also enforces the serving of previously unserved sentences to completion consecutively with the sentence imposed on the third conviction. Previously, sentences were often served concurrently, rather than consecutively. The new law also mandates a maximum sentence on the newest conviction. These sentencing requirements eliminate the judicial discretion that is allowed in some other states that have three strikes laws. Governor Patrick has expressed a desire to see some judicial discretion reintroduced to the bill, and has commented that he hopes the legislature will consider that request in the next legislative session.

The new Massachusetts habitual offender law is found in Chapter 192 of the Acts of 2012. You can see the full text of the new law here.

Continue reading →