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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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smart-phone-1499871The SJC recently issued a decision – Commonwealth v. Onyx White – affirming the allowance of the defendant’s motion to suppress the fruits of a search of his cellular telephone  The Court affirmed the trial court’s decision on the grounds that the police lacked probable cause to initially seize the telephone and waited too long (sixty-eight days) after seizing it to obtain a warrant to search its contents.

The basic facts were as follows. In the course of an attempted armed robbery of a convenience store, one of the perpetrators shot the victim. “The next day, the defendant, then sixteen years old, told his mother that he had participated in a robbery … and that someone had been shot.” The mother revealed that information to the police. Two days later, “a detective investigating the robbery-homicide met with one of the … administrators [of the defendant’s high school]. The administrator told the detective that the defendant had become ‘agitated’ earlier that day and had left the school without picking up his cellular telephone,” which was routinely held by the school administration during the school day. The police were not aware, “at that point, [of] any information that a cellular telephone contained evidence of the robbery and shooting, but they were aware, based on their experience, that such devices often contained useful information in cases involving multiple perpetrators.” Therefore, the detective “seize[d] the device without a warrant apparently on the basis of his [supervisor’s] belief that, if the defendant retrieved the device before a warrant could be obtained, he would destroy the device or erase relevant evidence. Thereafter, the device was transported to the police station.” However, the police did not search the device at that time. “The defendant was arrested later the same day and charged with murder. In the weeks that followed, detectives assigned to the case applied for and executed five search warrants, interviewed numerous witnesses, assisted with the grand jury investigation, and also were assigned to work on two other homicide investigations.” Continue reading →

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gavel-1238036The Supreme Judicial Court recently issued a decision addressing the affirmative defense of lack of criminal responsibility. In the case – Commonwealth v. Lawson – the SJC affirmed the defendant’s convictions for assault and battery on a police officer, resisting arrest, and related offenses. Although the Court found that the judge properly denied the defendant’s motion for required findings of not guilty by reason of lack of criminal responsibility, it reviewed the standard and determined that the presumption of sanity alone is not sufficient to sustain the Commonwealth’s burden of proving criminal responsibility beyond a reasonable doubt.

The background was as follows. “The defendant, after being told by … police officers that he had an outstanding warrant, resisted arrest and assaulted the officers.” At his trial, “the defendant offered a defense of lack of criminal responsibility, and called a forensic psychologist who described the defendant’s lengthy mental health history and opined that the defendant was not criminally responsible at the time of the offense[s]. The Commonwealth did not present expert evidence on the issue of criminal responsibility in rebuttal but rather relied on the circumstances surrounding the offense and cross-examination of the defendant’s expert to establish criminal responsibility.” On appeal, “[t]he defendant contend[ed] that, where the Commonwealth offered no expert evidence that the defendant was criminally responsible and where [in the defendant’s view] there was nothing about the circumstances of the commission of the crimes or the defendant’s conduct after their commission that would suggest that he was criminally responsible, it must be inferred that the judge denied the motion for required findings of not guilty based solely on the ‘presumption of sanity,’ even though the judge made no reference to such a presumption. The defendant further claim[ed] that the inference arising from this ‘presumption’ alone cannot support a finding beyond a reasonable doubt that the defendant was criminally responsible.” The Commonwealth expressed the opposing view, that “the inference arising from the ‘presumption of sanity’ alone is sufficient to defeat … a motion” for a required finding of not guilty by reason of lack of criminal responsibility.

Continue reading →

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gavel-1238036According to a recent article on Masslive.com, the Massachusetts Sentencing Commission recently held a public hearing on the possibility of changing state sentencing guidelines. The hearing addressed a number of sentencing related topics, including whether Massachusetts should impose a period of mandatory supervised release on all individuals who are released from jail.

Advocates against the imposition of a such a release argued that it would be setting these released individuals up for failure because sufficient services necessary to help inmates return to society simply do not exist. The chief counsel of the public defenders specifically told the sentencing commission that mandatory supervised release would not work unless the infrastructure and services to help people succeed were put in place.

Although state policy makers have had discussions about abolishing mandatory minimum sentences for non-violent drug offenses, the sentencing commission is considering significantly broader changes to sentencing guidelines that could include both changing mandatory minimums, as well as a wide range of other modifications. Examples of the changes being considered include:

  • instructing judges who must determine a sentence not to consider past convictions if a person has gone for eight or 10 years since the end of their last sentence without a new conviction
  • adopting guidelines telling judges not to consider misdemeanors committed by juveniles as part of the criminal history used to determine an adult sentence
  • creating an offense level of zero in the sentencing guidelines – essentially, labeling something a crime but not recommending a sentence of incarceration, probation or fines
  • limiting the length of probation supervision and the length of sentences for probation violations
  • creating a “safety valve” where a defendant is facing a mandatory minimum sentence which would allow a judge to can give someone a sentence that is below the mandatory minimum under certain circumstances

Continue reading →

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black-car-1450351The Supreme Judicial Court recently issued a decision – Commonwealth v. Campbell – affirming the allowance of the defendant’s motion to suppress on the ground that his operation of the vehicle, which had been rented by his mother, did not constitute use without authority under G. L. c. 90, § 24(2)(a), and therefore the police had no lawful basis to seize the vehicle and conduct an inventory search.

The basic facts were as follows. A state trooper “stopped [the] vehicle … for failing to stop at a stop sign. The trooper determined that the vehicle had been rented by the defendant’s mother, who has a last name that is different from the defendant’s. Upon request, the defendant provided [the trooper] with a valid driver’s license and the rental agreement. The agreement listed only the mother as the renter and stated, ‘[N]o other drivers permitted.’ [The trooper] concluded that the defendant was using the vehicle without authority, in violation of G.L. c.90, §24(2)(a), which makes it illegal to ‘use[] a motor vehicle without authority knowing that such use is unauthorized.’ Accordingly, [the trooper] decided to impound the vehicle. During an inventory search in preparation for impoundment, a loaded handgun and a box of ammunition were seized from the vehicle.” There was evidence that “upon learning of the seizures, the defendant made incriminating statements to [the] police.” After he was charged with firearm and other offenses, the defendant moved successfully to suppress the physical evidence and his statements. Continue reading →

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hair-1481587The Appeals Court recently issued a decision – Thompson v. Civil Service Commission – finding that the Boston Police Department’s drug screening method for screening its officers is flawed.

The background of the case is as follows: the collective bargaining agreement between the Boston police officers’ union and the Boston Police Department provides for annual hair testing for drugs as part of the department’s substance abuse policy. The portion of the agreement that specifically pertains to the testing states that “sworn personnel of the Boston Police Department will be tested for drugs and/or alcohol under the following circumstances…the parties agree that all sworn personnel shall be subject to an annual drug test to be conducted through a fair, reasonable, and objective hair analysis testing system.” The agreement goes on to state that an employee “will be subject to termination” for a positive test result…” The plaintiffs in the case are a total of ten officers who submitted hair samples, tested positive for cocaine, and were terminated as a result. The union then filed suit on behalf of the officers to appeal their terminations and the case ultimately ended up before the Appeals Court.

In reviewing the case, the Appeals Court found that the Boston Police Department’s use of officers’ hair samples in drug screening is scientifically unreliable and reinstated six of the ten officers with back pay and benefits. In its decision, the Appeals Court conducted an inquiry into the scientific reliability of the hair test and found that a positive test result was not conclusive on the question of voluntary drug ingestion.  It further found that a positive result may in fact be due to contamination from environmental exposure as opposed to drug use by the officer. The Court specifically held that the risk of a false positive was significant enough to require additional evidence prior to terminating an officer for drug use. In terms of six of the officers who had been terminated as a result of the positive test results, the Appeals Court found that the additional evidence presented by the officers outweighed the results of the hair test.   Continue reading →

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injection-1422245According to an article in the MetroWest Daily News, a man and woman reportedly broke into a home in Framingham this past week. The article states that police were dispatched to the home at around 12:45pm for a report of “suspicious people.” It is unclear who made the report or what the basis for the conclusion that the people were suspicious was. When the police arrived, the door to the basement was reportedly forced open and the man and woman were on the second floor of the home. The man was in a closet and was found with syringes and a bloody needle. The man told the police that a friend had let them enter the home, but according to the police, no one with the name provided by the man lived at that address. The police arrested the man and woman and charged them with: (1) breaking and entering with the daytime with the intent to commit a felony; and (2) malicious destruction of property.

For the Commonwealth to obtain convictions against the defendants for breaking and entering in the daytime with the intent to commit a felony under G. L. c. 266, § 18, it would have to prove the following beyond a reasonable doubt: (1) that the defendants broke into a building belonging to another person; (2) that the defendants entered that building; and (3) that the defendants did so with the intent to commit a felony in that building. As to the third element of the offense, the Commonwealth must prove that the defendants intended to commit a felony at the time they broke into and entered the building.

For the Commonwealth to obtain convictions for malicious destruction of property under G. L. c. 266, § 127, it would have to prove the following beyond a reasonable doubt: (1) that the defendants injured or destroyed the building of another; (2) that the defendants did so willfully; and (3) that the defendants did so with malice. As to the second element, an act is “willful” if it is done intentionally and by design, in contrast to an act which is done thoughtlessly or accidentally. A person acts willfully if s/he intends both the conduct and its harmful consequences. As to the third element, an act is done with “malice” if it is done out of cruelty, hostility or revenge. To act with malice, one must act not only deliberately, but out of hostility toward the owner of the property. This does not require that the person committing this offense knew the identity of the owner, but it does require that defendant was hostile toward the owner, whoever that was. Continue reading →

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gavel-1238036The Supreme Judicial Court recently issued two decisions – Commonwealth v. Teixeira and Commonwealth v. Meade – that will have a significant impact on the discovery process in certain criminal cases going forward.

There are two types of cases in Massachusetts – misdemeanors and felonies. Massachusetts District Courts and the Boston Municipal Court have jurisdiction over all misdemeanors and less serious felonies (i.e., all felonies which carry a house of correction sentencing alternative). The Superior Court has jurisdiction over all other felonies (i.e., felonies which carry only state prison as potential sentence). Despite the fact that the District Court lacks jurisdiction over certain felonies, all cases, no matter how serious, start out in the District Court with an arraignment. If the charge is one of the felonies that only the Superior Court has jurisdiction over, the Commonwealth must decide whether it wants to take the case to the Superior Court, or if it wants to break the case down to a misdemeanor or less serious felony over which the District Court has jurisdiction.

If the Commonwealth decides that it wants the case to be heard in the Superior Court, it must present the case to the grand jury to make a determination that there is in fact probable cause to issue a charge in Superior Court (called an indictment). Under Rule 3 of the Massachusetts Rules of Criminal Procedure, a defendant is entitled to a probable cause hearing in the District Court until the case has been presented to the grand jury, and the grand jury has voted and found probable cause to issue the indictment. It can take several months for the Commonwealth to indict a case, during which the case remains in District Court. Although the case is scheduled for a probable cause hearing in District Court pending the indictment, probable cause hearings are extremely rare in practice – typically, the Commonwealth states its intent to indict and asks the District Court judge to continue the case for a further probable cause hearing. The case generally gets continued until the case is indicted, at which point the need for a probable cause hearing is obviated.

Naturally, defense attorneys object to these continuances. While the ability to proceed with the case and obtain discovery is hampered by the Commonwealth’s repeated requests for continuances, good defense attorneys file motions for such discovery while the case is pending in the District Court and awaiting indictment. This is so that they can begin to investigate a case and start to build a defense. The Commonwealth typically objects to such orders to produce discovery on the ground that the District Court does not have jurisdiction over the case, and therefore the District Court judge lacks jurisdiction to issue such an order. Continue reading →

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