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high-school-woes-1173688-mAccording to an article in the MetroWest Daily News, a group of ten freshman and sophomore students got into a “brawl” at Framingham High School last week. School officials stated that they did not know what led to the fight and insisted that there was no longstanding feud between the students who were involved. Four of the students were injured, including one who was taken to the hospital to the hospital as a precaution. A Framingham police officer indicated that the police were reviewing surveillance footage as well as cell phone videos taken by others in an attempt to determine who or what caused the fight. Although criminal charges have not yet been issued, the police department indicated that the incident was still under investigation and that “it could possibly lead to criminal charges.”

If the students are indeed criminally charged, it seems likely that they will be charges of simple assault and battery under G. L. c. 265, 13A, as the article makes no mention of any weapons being used. For the Commonwealth is issue charges and ultimately convict the student(s) for assault and battery, it would have to prove beyond a reasonable doubt that: (1) that the student(s) touched the person of the alleged victim(s) without having any right or excuse for doing so; (2) that the student(s) intended to touch the alleged victim(s); and (3) that the touching was either likely to cause bodily harm to the alleged victim(s) or was done without the alleged victim or victims’ consent. The touching must be intentional in the sense that the student(s) consciously and deliberately intended the touching to occur and that it was not merely accidental or negligent. However, the student(s) need not specifically have intended to cause injury to the alleged victim(s).

While the details of the incident are still not entirely clear, it seems the Commonwealth may have difficulty proving its case. Assuming that this was a mutual fight in that the students were all fighting against one another, as opposed to certain parties simply being assaulted and certain parties doing the assaulting, all of the students involved would presumably be cross-complainants and have 5th Amendment privileges against self-incrimination. Continue reading →

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lit-232924-mThis past week, the Supreme Judicial Court rule that people who pled guilty in cases where evidence was mishandled by former state chemist Annie Dookhan may not be charged with more serious crimes if given a new trial and, if convicted, may not be given a worse sentence than the judge originally imposed. The decision – Commonwealth v. Bridgeman – was unanimous.

Dookhan is the former Massachusetts drug lab chemist accused of tampering with evidence in a drug testing scandal that threatened thousands of criminal cases in Massachusetts. Dookhan, who worked at the state’s Hinton Laboratory in Jamaica Plain, was accused of fabricating test results and tampering with drug evidence. She played some sort of a role in more than 40,000 drug tests at the Hinton lab, where she worked from 2003 until 2012. The state police first learned of Dookhan’s actions after a chemist at the lab in which she worked said that he observed “many irregularities” in her work. During a subsequent investigation, Dookhan admitted to authorities that she took shortcuts, such as only testing some of the samples that she was assigned to, and then listing them all as positive for the presence of a drug. She also acknowledged that sometimes, if a sample tested negative, she would take a known controlled substance from another sample and add it to the negative sample in order to make it test positively. Dookhan ultimately pled guilty in November 2013 to twenty-seven counts of misleading investigators, filing false reports, and tampering with evidence, and was sentenced to three to five years in state prison, followed by two years of probation that included mental health counseling if needed.

As a result of Dookhan’s malfeasance, the state shut down the laboratory in 2012. A list of so-called “Dookhan” cases was compiled so that the convictions could be re-visited and motions for new trials could be filed. Counties across the state set up “Dookhan” sessions to deal with defendants’ motions for new trials. Some defendants chose to go forward with new trials or re-negotiated pleas. Others chose not to for fear that they might lose at trial and get a worse sentence. Alternatively some defendants who had originally pled guilty to reduced charges in return for the plea chose not to try and vacate their pleas because of the concern that the original charges (rather than the reduced ones) would be reinstated. As a result, many defendants chose to take no action, despite the clear violation of their due process rights.

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question-mark-1409010-mAccording to an article in the MetroWest Daily News, the senior foreman for the Wayland Department of Public Works was arraigned in Middlesex Superior Court in Woburn on Friday on various sex offenses, specifically: four counts of rape of a child by force, and two counts of indecent assault and battery on a child under the age of fourteen. The article states that the man has been a foreman for Wayland’s DPW for over two decades and was promoted to senior foreman in 2011. According to the information in the article, the man reportedly raped the alleged victim on multiple occasions and at several locations. The alleged victim told police the abuse started when she was five years old, in 1998, and reportedly stopped in 2006.

For the Commonwealth to obtain a conviction against the man for rape of a child by force under G. L. 265, § 22A, it would have to prove the following beyond a reasonable doubt: (1) that the defendant engaged in sexual intercourse with the alleged victim; (2) that the sexual intercourse was accomplished by compelling the alleged victim to submit by force or by threat of bodily injury and against her will; and (3) that the alleged victim was a child under sixteen years of age at the time of the alleged offense.

For the Commonwealth to obtain a conviction against the man for indecent assault and battery on a child under fourteen under G. L. c. 265, § 13B, it would have to prove the following beyond a reasonable doubt: (1) that the alleged victim was under fourteen at the time of the alleged offense(s); (2) that the defendant committed an assault and battery on that child – an assault and battery is the intentional touching of another person without legal justification or excuse; and (3) that the assault and battery was “indecent,” as that word is commonly understood, measured by common understanding and practices. An indecent act is one that is fundamentally offensive to contemporary standards of decency. An assault and battery may be “indecent” if it involves touching portions of the anatomy commonly thought of as private, such as a person’s genital area or buttocks, or the breasts of a female. Continue reading →

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cell-phone-959697-mIn a recent decision, Commonwealth v. Smith, the Supreme Judicial Court extended the “interested adult” rule applies to seventeen-year-old defendants. Under the United States Constitution and the Massachusetts Declaration of rights, the police must provide a suspect with Miranda warnings prior to questioning the suspect if the suspect is (1) in custody – meaning a reasonable person in his or her shoes would not feel free to leave; and (2) the police know or should know that the questioning is likely to elicit an incriminating response. The police must warn the suspect that:

  • s/he has the right to remain silent and refuse to answer questions;
  • Anything s/he says may be used him/her in a court of law;
  • s/he has the right to consult an attorney before speaking to the police and to have an attorney present during questioning; and
  • If s/he cannot afford an attorney, one will be appointed before any questioning if s/he desires

If the suspect then chooses to waive these rights and make a statement to the police, that statement may be admissible against the suspect in the event s/he is charged and prosecuted. When it comes to juvenile suspects, however, the police must take an additional step before such a waiver is considered to be valid. Specifically, the SJC has stated that the “circumstances and techniques of custodial interrogation which pass constitutional muster when applied to a normal adult” may not be “constitutionally tolerable” when applied to a juvenile. Thus, while juveniles may make an effective waiver of their Miranda rights, “special caution” must be taken in determining the validity of the waiver. The SJC has recognized that there are unique problems that arise with respect to waiver when the suspect is a juvenile, and therefore Massachusetts has adopted an “interested adult” rule regarding confessions. Under this rule, the Commonwealth must show that a parent or interested adult was present, understood the warnings, and had the opportunity to explain the rights to the juvenile so that s/he understands the significance of the waiver. Continue reading →

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jail-979240-mOn December 24, 2014, in Diatchenko v. District Attorney for the Suffolk District I, 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, 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.

On March 23, 2015, the Supreme Judicial Court issued another decision, Diatchenko v. District for the Suffolk District II/Commonwealth v. Roberio, which addressed several questions “concerning how the opportunity for release on parole will be protected for juvenile homicide offenders” in Massachusetts. The decision specifically addresses three questions reported to the full SJC by the single justice regarding this issue. The SJC concluded that juvenile offenders convicted of homicide, sentenced to life, and seeking parole must have access to counsel, access to funds for counsel and expert witnesses if they are indigent, and an opportunity for judicial review of the parole board’s decision on their parole applications when they petition for release.

The Court explained that counsel must be provided to these juvenile offenders because “[a]n unrepresented … juvenile homicide offender will likely lack the skills and resources to [adequately] gather, analyze, and present” the “complex and multifaceted issues” involved in a parole hearing. The Court ordered that if an offender seeking parole is indigent, the public defender’s office – the Committee for Public Counsel Services – should provide representation.

In relation to the Court’s ruling that an indigent juvenile offender convicted of homicide must have access to funds to procure expert witnesses, the SJC explained that a psychologist or other expert may be crucial in explaining to the parole board the recent “scientific research on adolescent brain development [which] has revealed ‘myriad significant ways that this development impacts a juvenile’s personality and behavior,’ some of which suggest decreased moral culpability for certain juvenile homicide offenders or indicate a greater potential for them to mature to a point where they no longer engage in the behaviors that led to their crimes.” Continue reading →

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According to an article in the MetroWest Daily News, district attorneys in multiple counties in Massachusetts are suspending the use of breathalyzer tests in drunk driving cases because of suspected problems with the breathalyzer machines, which test blood alcohol content. The exact issue, which may involve software or calibration of the machines, has not been released.

The concerns first came to light in mid-March, when the Massachusetts State Police apparently notified multiple district attorneys’ offices that there were issues with some of the breathalyzer tests given to defendants in their respective counties. The district attorneys’ offices contacted the defense attorneys in those specific cases, but the state police have now indicated that the problem may go beyond those isolated matters. The Executive Office of Public Safety has been unable to confirm exactly how many cases might be affected.

Given the fact that breathalyzer tests can play an important role in prosecutions and often persuade defendants charged with operating under the influence to plead guilty, the Massachusetts Bar drunk-drive-903509-mAssociation has called for an independent investigation into the reliability of breathalyzer tests used to prosecute people suspected of drunken driving and has urged a moratorium on introducing the tests as evidence until these concerns are resolved. The MBA’s chief legal counsel specifically stated that while “drunk driving is a very serious issue in Massachusetts…people’s constitutional rights are also important…[and the MBA does] not want to see people convicted and taking plea agreements based on faulty evidence.”

A state police spokesperson has issued a statement indicating that officers might have accepted test results from breathalyzer machines that were not properly calibrated. The spokesperson further stated that the state police have opened a review of the concerns regarding the questionable breathalyzer results, with findings expected next week.

In light of these issues, district attorneys in Middlesex, Essex, Suffolk, Worcester, Norfolk, Plymouth, and the Cape and Islands have decided to suspend use of the breathalyzer test results as evidence. The Berkshire district attorney is not suspending use of breathalyzer results – prosecutors there will apparently be reviewing the issue on a case-by-case basis. Continue reading →

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mobile-phone-in-hand-1307594-mAccording to an article in the MetroWest Daily News, an Ashland man was charged with rape this past week. The article states that the alleged victim, a woman, went to the man’s house this past Tuesday night. It’s unclear whether she was an invited guest, dropped by unexpectedly, and/or what the nature of their relationship was. According to the woman, when she arrived at the home, the man told her that he wanted to have sex with her. She reportedly told the man that she did not want have sex. At that point, he allegedly became “aggressive” toward her, pushed her into the bedroom and repeatedly stated that he wanted to have sex with her. She reportedly continued to tell him no. According to the woman, the man then grabbed her, ripped off her clothes, pushed her on the bed, and forced her to have sex with him. After they had sex, the man went to take a shower and the woman called the police, seemingly from the man’s house. The police arrived and arrested the man.

When the man was brought to court the next morning, the woman asked the court to order that the he stay away from her, but also told the court that she did not want the man to be held without bail pursuant to G. L. c. 276, § 58A, and that she wanted to be able to have phone, email, and text contact with him. She also told the court that she wanted the man to be ordered to see a therapist. Continue reading →

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gavel-2-1409592-mIn a criminal case, the standard of proof is proof beyond a reasonable doubt. This means that the Commonwealth must prove the defendant’s guilt beyond a reasonable doubt before a jury can convict him. At the end of a trial, before the jury makes its determination as to whether the defendant is in fact guilty or not guilty, the judge provides the jury with instructions. These jury instructions are basically a set of legal rules that the jury must follow when deciding the case. One of the instructions provides a more in depth explanation of the meaning of reasonable doubt.

Over the years, two main instructions on reasonable doubt have developed. One comes from Commonwealth v. Webster, 5 Cush. 295, 320 (1850) and is referred to as the Webster instruction. The other comes from the Federal Judicial Center’s Pattern Criminal Jury Instructions. The Webster version informs the jury that reasonable doubt exists when “they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.” The Federal Judicial Center’s instruction states that “proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt.” Despite the length of time that has passed since the Webster instruction was written, and the fact that there has been some criticism of the charge for its outdated language, it has been the preferred version for criminal defendants for more than a century. While a defense attorney may request the Webster instruction, it has historically been up to the judge to determine the specific language of the reasonable doubt instruction.

Whether judges should continue to have such discretion, however, was recently addressed by the Supreme Judicial Court in Commonwealth v. Russell. The defendant in Russell was charged with indecent assault and battery on a child under the age of fourteen. The defendant’s lawyer requested the Webster instruction. The judge declined to give the Webster charge and instead gave an instruction that was a hybrid between Webster and the Federal Judicial Center’s instruction. The judge’s instruction omitted Webster’s directive that in order to find the defendant guilty, the jurors had to feel “an abiding conviction to a moral certainty of the truth of the charges.” In place of that language, the judge inserted the following language from the Federal Judicial Center’s instruction: “[P]roof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt…. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If, on the other hand, you think there is a real possibility that the defendant is not guilty, you must give him the benefit of the doubt and find him not guilty.”

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blade-1-1000056-mAccording to an article in the MetroWest Daily News, a Framingham woman reported to police that her drug dealer robbed her at knife point last week. The article specifically states that the woman had arranged to buy marijuana from her dealer, whom she identified as “Florida.” The woman stated that when she showed up to the buy location, Florida allegedly took out a black pocket knife and told her to give him her money. The woman then reportedly gave him $20. According to the woman, Florida began to walk away, but then turned and charged at her with the knife. She called the police to report the robbery as she was running away. The woman was unable to provide the police with Florida’s actual name.

Even if the police are able to identify and apprehend Florida, however, it seems unlikely that they will have much of a case against him. Specifically, the woman appears to have a Fifth Amendment privilege. The Fifth Amendment states that a person cannot be compelled to testify against herself if that testimony is potentially incriminating and/or could result in criminal prosecution. The woman, by her own admission, appears to have engaged in some sort of agreement to purchase drugs. Because the woman could potentially face criminal charges herself, she appears to have a Fifth Amendment privilege and could therefore refuse to testify. Continue reading →

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cigarette-sticks-1394750-mAccording to an article in the MetroWest Daily News, two teenagers were arrested this past week after allegedly robbing a gas station in Marlborough. The article states that two men wearing masks entered a Shell gas station on Lincoln Street shortly after 3am this past Thursday. One of the two men reportedly approached the clerk, pointed a handgun at him, and demanded cash while the other stood as a lookout at the door. The two men walked away with $340 in cash, several boxes of Newport cigarettes, and the clerk’s cellular telephone. Witnesses and the clerk provided a description of the two men to police – one was described as 6’ tall and the other as slightly shorter, both with thin builds.

Several hours after the robbery, the Marlborough police served a warrant for a parole violation on a seventeen year-old juvenile at an apartment on Lincoln Street. While serving the warrant, officers noticed that the juvenile matched the description of one of the two robbers. Additionally, officers observed several boxes of Newport cigarettes in plain view. Another man inside the apartment reportedly matched the description of the second suspect. Both the juvenile and the other man were arrested for armed robbery under G. L. c. 265, § 17.

Fortunately, both the juvenile and the other man appear to have strong arguments that they were not the people that were involved in the robbery. In particular, the suspects were masked and the only description provided was height and build. There does not appear to be any further information provided by witnesses documenting the suspects’ race, age, clothing, hair color, eye color, or facial features. In light of the lack of detail in the descriptions provided, it will likely be difficult if not impossible to argue that the two men arrested were in fact the individuals involved in the robbery. Continue reading →

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