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various-abusive-drugs-489543-mAccording to an article on the American Civil Liberties’ website, thousands of criminal defendants impacted by the Annie Dookhan/Hinton Drug Lab scandal still have not received justice.  The article states that in May 2015, the Supreme Judicial Court issued a decision in Bridgeman v. District Attorney for Suffolk County.  The decision stated that Dookhan defendants have the right to challenge their convictions without fear of further punishment.  Specifically, the ruling stated that criminal defendants who brought a motion to vacate a conviction based on Dookhan related issues could not face more serious charges, or longer sentences following the allowance of such a motion.   The SJC then sent the case to SJC Justice Margot Botsford to determine how defendants would be identified and notified of their rights.  Justice Botsford subsequently issued a ruling requiring state prosecutors to produce lists of Dookhan defendants.  Despite her order, however, prosecutors have been slow – extremely slow – to respond.  Justice Botsford held a hearing on May 11, 2016 to discuss the need to notify defendants.  This past week, almost five years since Dookhan’s misconduct was uncovered, and one full year after the issuance of Bridgeman, prosecutors have finally issued the requisite lists.

The lists identify more than 24,000 drug cases in which people were convicted, or had other adverse dispositions, as a result of tainted drug testing completed by Annie Dookhan.  These Dookhan cases appear to account for 25 percent of all drug prosecutions that led to convictions in the seven counties that used the Hinton State Lab during Dookhan’s tenure, and one in six of such drug prosecutions in the Commonwealth, over a 10-year period.  Despite these staggering numbers, the vast majority of the defendants in these 24,000 cases have not received any official notice that Dookhan worked on their case, let alone legal representation to help them challenge their tainted convictions.

These revelations follow on the heels of a report issued last week from the Massachusetts Attorney General’s Office, written at the request of the Massachusetts Supreme Judicial Court, which found that Massachusetts is also confronted with a second enormous lab scandal arising from misconduct by chemist Sonja Farak at another state drug lab, in Amherst.  According to the report, Farak used drugs daily during her eight years on the job, and her misconduct likely affects thousands more cases. Continue reading →

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broom-shadow-1490808According to an article in the MetroWest Daily News, a Framingham man was recently arrested for assaulting his eight year old son.  The article states that the son had apparently gotten into a physical fight with another boy at the bus stop.  During the fight, the other boy apparently touched the son’s buttocks.  The son reported the incident to his mother and his father.  After the son told his parents what had happened, his father (the defendant) reportedly spanked the son and hit him on his backside with a broom handle.  According to the son, the defendant also slapped him in the face and neck.  The article indicates that the defendant was upset about the fact that the son had failed to report the other child’s inappropriate conduct to school officials – namely that the other child had touched the son’s backside.  The son did have visible injuries on his shoulders and neck as a result of the incident.  The son’s school principal reported the defendant’s conduct to the authorities and the police responded and photographed the son’s injuries.  As a result of the incident, the defendant was charged with domestic assault and battery with a dangerous weapon and domestic assault and battery.

Although the charges are serious, the defendant does appear to have a legitimate defense.  Specifically, the defendant can argue that he was simply using reasonable physical force to discipline his child.  Although the Massachusetts legislature does not specifically allow for the use of physical discipline by a parent, case law appears to indicate that a parent is authorized to use physical force to discipline a child under certain circumstances.  For example, in Commonwealth v. Rubeck, the Supreme Judicial Court seemed to recognize the parental right to discipline as a legitimate defense to the use of physical force against a child as long as the physical force was for the specific purpose of discipline, was conducted in a controlled manner rather than the result of an emotional outburst, and did not result in significant injury.  Since it is arguably inappropriate for an eight year old child to get into a physical altercation with another child, the defendant can argue that he was within his rights to put his hands on his child for the purpose of disciplining him. Continue reading →

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questions-1151886According to an article in the MetroWest Daily News, a Framingham man was recently arrested on domestic violence charges.  The article states that the police responded to the defendant’s apartment at approximately 3pm last Sunday after receiving a call for a “possible domestic dispute.”  When they arrived, the police spoke to both the defendant and his girlfriend.  The girlfriend told police that she was afraid of the defendant and that the two of them had gotten into an argument.  She further stated that during the argument, the defendant had thrown a coffee mug at her, but missed.

The girlfriend also claimed that the defendant had assaulted her nearly a month prior while she was giving the defendant a ride to work.  On that occasion, the defendant allegedly grabbed a travel mug and threw it at the girlfriend and it hit her in the face.  The cup reportedly left a bruise, which the girlfriend later photographed.  During that earlier incident, the girlfriend reportedly tried to drive to the police station, but the defendant told her not to do so.  The girlfriend apparently did not make any further attempts to report the incident. As a result of the girlfriend’s allegations, the defendant was charged with assault and battery with a dangerous weapon in relation to the earlier alleged incident, and assault with a dangerous weapon in relation to the more recent one.  The defendant was also charged with two counts of witness intimidation – one because he reportedly called the girlfriend’s daughter from jail even though he had been ordered not to do so, and the second because of his alleged statement telling the girlfriend not to go to the police.

At the defendant’s arraignment, his attorney indicated that the defendant was about to break up with the girlfriend because she had taken a debit card from him and withdrawn money without his permission.  The attorney further stated that the allegations were fabricated to get the defendant in trouble.  Continue reading →

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shooter-1569885According to an article in the Berkshire Eagle, the Supreme Judicial Court is scheduled to hear argument in a Berkshire OUI case – Commonwealth v. Neary French – that may impact the way drunk driving cases are prosecuted across the entire state.

The facts of the case are as follows: the defendant was seen making multiple attempts to pull out of a parking space in downtown Lenox at approximately 1:15pm on November 28, 2012.  According to the article, the police stated that “the vehicle was unable to navigate its way out of the parking spot,” and “collided with another vehicle slightly, several times,” despite the fact that “there was no real reason that vehicle couldn’t exit its parking spot.”  The police removed the defendant from the car, made observations of her, and had her perform field sobriety tests.  According to the police, the defendant “displayed all the signs of an intoxicated operator.”  The police then arrested the defendant on an OUI charge, first offense under G. L. c. 90, § 24.  At the police station, the defendant agreed to take a breath test, the result of which exceeded the legal 0.08 blood alcohol limit.

During the course of the court case, the defendant’s attorney moved to suppress the breath test result.  The attorney argued that the defendant should have had the option to contact an attorney before taking the test.  In her argument, the defendant’s attorney specifically cited to a defendant’s right to legal counsel under the Massachusetts Declaration of Rights, as well as the 6th and 14th amendments of the U.S. Constitution guaranteeing due process.  The attorney argued that a 2003 amendment to the OUI statute indicates that a breath test of .08 or greater is direct evidence proving legal intoxication, and therefore constitutes “a critical stage in the criminal process” (prior to this amendment, breathalyzer results were considered to be just one piece of evidence in determining the outcome of an OUI case).  The attorney went on to argue that because the breath test constitutes a critical state of the criminal process, a motorist should have the opportunity to consult with an attorney within a reasonable period of time before taking a breath test.  The attorney ultimately asked the court to find that the defendant was denied her right to legal counsel at the “critical stage” of the court case, in violation of the U.S. Constitution and the state’s Declaration of Rights.  Continue reading →

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knife-1417852According to an article in the MetroWest Daily News, a thirty-seven year old woman was arrested after a knife fight in Framingham. The article states that the police went to Phelps Road and found “a small child walking around holding a large kitchen knife.” It is unclear what led the police to respond to that location, however, the officers took the knife from the child upon their arrival. Officers then attempted to question people in the area in an attempt to determine what happened. During the investigation, the police recovered several weapons from the area, including a miniature novelty bat and several other wooden objects that witnesses identified as being used in the fight. Additionally, while the officers were questioning witnesses, one woman ran up to another woman and started screaming at her. The police attempted to separate the two, but were unable to do so and ultimately ended up handcuffing the woman who had initiated the screaming. She made statements to the police, including admitting that she had brought the knife to the fight. She indicated that she had done so because “they” had hit her sixteen year old daughter. Officers then charged the woman with assault with a dangerous weapon.

For the Commonwealth to convict the woman of assault with a dangerous weapon under G. L. c. 265, § 15B(b), it would have to prove the following beyond a reasonable doubt: (1) that the woman intended to put a person in fear of an imminent battery; (2) that she engaged in some conduct toward that person which the person reasonably perceived as imminently threatening a battery; and (3) that the assault was done by means of a dangerous weapon. Continue reading →

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1249008_glock_29_replica_4According to an article in the MetroWest Daily News, Framingham police found a loaded gun on a seventeen year old boy following a traffic stop last week. The article states that a police officer was attempting to pull over a car when the defendant, who was driving a different car, failed to pull to the right and get out of the officer’s way. The officer then decided to pull over the defendant. The defendant came to a stop, exited his vehicle, and reportedly “tried to talk his way out” of the situation. According to the officer, the defendant was “nervous and argumentative,” and kept “fidgeting with his hands in his pockets.” The officer reportedly told the defendant to show his hands, but he did not cooperate, and repeatedly asked the officer to let him go home. During the exchange, the teen reportedly took off running. The officer gave chase, apprehended the defendant, and placed him in handcuffs. Additional officers arrived and searched him. During the pat frisk, the police recovered a loaded Smith & Wesson semi-automatic pistol in the defendant’s waistband. The teen was charged with carrying a firearm without a license, possessing ammunition without an FID card, resisting arrest, possession of stolen property over $250, disorderly conduct, unlicensed operation, speeding and failure to yield to an emergency vehicle.

Although these charges are unquestionably serious, the defendant does appear to have a strong argument that the evidence recovered as a result of the search should be suppressed. A motion to suppress is a written request by a defendant asking the court to keep certain evidence from being introduced against him at trial because that evidence was obtained as a result of unconstitutional or illegal police activity. The Fourth Amendment to the United States Constitution guarantees a person’s right to be free from unreasonable searches and seizures. For the police to seize a person, they must have reasonable suspicion to believe that the person has committed, is committing, or is about to commit a crime. Under Massachusetts law, pursuit constitutes a seizure. Further, for the officer to pat frisk a person, he must also have a reasonable apprehension that the person is armed and dangerous. If the police lack the requisite reasonable suspicion and/or reasonable apprehension of danger, any evidence recovered as a result of the seizure and subsequent pat frisk should be suppressed. Continue reading →

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ma-state-house-1487882The Massachusetts legislature has been very busy the last few weeks and many of the issues they have acted on are pertinent to criminal law. Since the beginning of March, several bills have made their way through the legislative process. Most are of the bills are still en route to enactment, but some have made it to the Governor’s desk.  Below is a list of bills that have made progress:

Opioid Act: This act was signed by the Governor on March 14, 2016 and goes into effect on July 1, 2016. The Act mandates that individuals presenting in the emergency room or a satellite emergency facility suffering from an apparent opiate overdose will receive, prior to discharge and within 24 hours of presenting in the ED, a substance abuse evaluation. The Act further ensures insurance coverage for the substance abuse evaluation. After the evaluation, the patient may consent to further treatment and the treatment may occur within the hospital if the service is available. If treatment is not available in the hospital, the hospital must refer the patient to another treatment center.

License Suspension: This legislation was signed by the Governor on March 30, 2016 and goes into effect immediately. The Act eliminates the suspension of a person’s driver’s license following a conviction for most drug related offenses (the Act maintain suspension of a person’s driver’s license if he or she is convicted of trafficking of a Class B controlled substance, morphine/opium, or fentanyl, but states that such a suspension shall not exceed five years from the date of conviction, and a person may apply for a hardship license once his or her sentence of incarceration is completed).

Larceny: The Senate endorsed legislation that would raise the felony crime of larceny threshold from $250 to $1,500 on March 14, 2016 (any theft below the new $1,500 threshold would constitute a misdemeanor offense).  The bill was then sent to the House and is currently pending in the House Committee on Ways & Means.  When the Committee releases the bill, it will be taken up by the House and continue to make its way through the process.

Parent-Child Privilege: This legislation proposes a privilege that would prevent parents from being forced to testify against their children.  The bill was reported favorably by the Joint Committee on the Judiciary and ordered to a 3rd reading by the House of Representatives on March 24, 2016, which is an important first step on the road to enactment.  From the House Committee on Bills in Third Reading, the bill will be acted on by the House and then make its way to the Senate.

The bill itself prevents parents from being forced to testify against their children and in doing so affords children the same protections guaranteed to others against self-incrimination.  The bill allows an exception to this protection when a victim is a family member who resides in the same household, but protects communication even in such an instance if it is relative to advice on legal rights and decision-making.  The bill also redefines “parent” to meet the complex and varied family situations that are part of today’s society.  Continue reading →

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resume-2-1616792A recent article in The Boston Globe acknowledges the myriad of collateral consequences that can arise as a result of having a criminal record. The article specifically focuses on the difficulties individuals with criminal records have entering the work force. The article states that there are many employers who decline to hire people with misdemeanor or felony convictions, and discusses the fact that, while a criminal record can be sealed, the process has historically been a lengthy one – until recently.

According to the article, the Massachusetts Probation Service has “reconfigured its workforce to reduce the time it takes to seal a record from more than three months to just a few days.” The article states that the goal of these changes “is to give people more access to employment on short notice” because “jobs don’t wait around.”

In 2012, Massachusetts implemented CORI reform that allowed people to petition to seal their criminal records five years after a misdemeanor conviction and 10 years after a felony (a significant reduction from the previous state of the law, which required people to wait ten years before petitioning to seal a misdemeanor conviction and fifteen years to petition to seal a felony). The change led to a sixty percent increase in the number of people petitioning to have their records sealed. This resulted in a substantial increase in the length of time it took for the sealing process to be completed. Continue reading →

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taking-a-drink-1325299According to an article in the MetroWest Daily News, a Walpole man was recently charged with his fifth drunken driving offense. The article states that the defendant was riding in the passenger seat of his car, which his girlfriend was driving. According to the girlfriend, the defendant was intoxicated and threw a cellular telephone at her. The phone did not hit the girlfriend, but when she pulled over to pick it up, the defendant reportedly hit the her in the face with his hand. The girlfriend then drove to a nearby pizza shop in Ashland to try and get help. When she exited the vehicle, the defendant reportedly grabbed her and tried to pull her back into the car. He then got into the driver’s seat and drove away from her, but hit a parked car as he left. The police stopped the defendant a short distance away, still in the vehicle. The police asked the defendant if he had been drinking, and he stated that he had not. The police also asked if he would be willing to perform field sobriety tests, which he declined to do. According to the article, the police found empty beer cans and nips in the car. When the police ran the defendant’s record, they saw that he had four prior convictions for operating under the influence of liquor. He was subsequently charged with the following offenses: (1) driving under the influence of liquor (fifth offense)); (2) driving to endanger; (3) driving with a license suspended for drunken driving while intoxicated; (4) leaving the scene of an accident; and (5) domestic assault and battery.

Fortunately for the defendant, he appears to at least of have a strong defense as to the most serious charge: driving under the influence of liquor, 5th offense. To obtain a conviction for this offense under G. L. c. 90, § 24, the Commonwealth would have to prove the following beyond a reasonable doubt: (1) that the defendant operated a motor vehicle; (2) that the defendant did so on a public way or in a place where the public has a right of access or in a place where members of the public have access as invitees or licensees; (3) that while operating the vehicle, the defendant was under the influence of intoxicating liquor; and (4) that the defendant was convicted of this offense on four prior occasions. Continue reading →

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navigating-gps-maps-1466837More and more often, judges are ordering defendants to be placed on GPS bracelets as a condition of pre-trial release and/or probation. Despite the fact that the bracelets are often a major help to clients who can avoid incarceration by agreeing to wear them, even the Supreme Judicial Court has recognized (in Commonwealth v. Corey) that the bracelets have a decisively punitive effect. Additionally, the bracelets also may generate unnecessary problems for people doing nothing wrong. Oftentimes, the devices fail through no fault of the defendant, and significant consequences result – including warrants for arrest, the need for repeated and disruptive visits to court, and/or allegations of tampering that may result in additional criminal charges.

The bracelets rely on triangulation from three satellites and collect longitude and latitude coordinates, as well as information on the wearer’s speed and direction of travel. They do not measure altitude, meaning that they do not differentiate between floors of a residence. The bracelets then send this collected information to a data center via cellular phone towers.
The information is monitored by the Massachusetts Probation Service’s Electronic Monitoring Program and can be reviewed by a probation officer via an internet connection. In Massachusetts, an “active” tracking feature is used, meaning that information updates can be provided in real time. The vast majority of GPS bracelets are “one-piece” units with a home beacon, which helps to boost the signal within a residence and give a more precise indication of whether the monitored party is at his or her registered home address. These “one-piece” devices have a battery life of 36 hours and can recharge in about two hours. A very small percentage of bracelets (about 5%) are “two-piece” units, which feature a phone and a bracelet, plus a base unit that plugs into a landline connection. These are primarily used in areas with poor cell reception. They have a battery life of 20 hours and require four hours to re-charge. Continue reading →

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