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whiskey.jpgIn today’s Metrowest Daily News online edition I read a story about a Medfield man.  The man apparently had three passengers in his car in the early morning hours of March 10th. While driving on South Street in Holliston police allege that the man lost control of his motor vehicle and crashed into a utility pole. According to the article crews worked throughout the day yesterday to replace the damaged pole and wires.

The article offers few details on what actually happened when the police arrived on the scene, but the officer quoted in the article made it clear that they believe the man was speeding at the time of the accident. He also indicated to the reporter that the man will be charged with DUI (or Operating Under the Influence as it is called in Massachusetts) and Negligent Operation of a Motor Vehicle. Because the charge is being filed out of Holliston, the man will be prosecuted in Framingham District Court.

Because the article offers almost no details on what police observed when they approached the man at the scene of the accident, it is difficult to guess how his case might proceed. However, there are some details in the article that could foreshadow more serious consequences for the man than the average first offense DUI.

First offense DUIs are serious enough on their own. If a person is found guilty at trial or enters into a plea deal there can be lengthy loss of license as well as a period of probation, and the possibility of jail time. In addition a first offense DUI can raise your insurance rates, and result in the creation of a criminal record.

From the article it appears possible that police may try to enhance the man’s charge to an OUI causing serious bodily injury. Although the article indicates that at the moment the man is only charged with first offense DUI, prosecutors will typically wait until the case progresses to enhance the charge to OUI causing serious bodily injury. The article makes it clear that none of the passengers are suffering from life threatening injuries, however if prosecutors learn that any of the passengers suffered a broken bone, or some other serious injury, they will likely take a out a new complaint for OUI serious bodily injury. One unpublished decision by a Massachusetts Appeals Court even suggested that a mere broken pinky finger is enough to constitute a serious bodily injury under Massachusetts law.

OUI with serious bodily injury is a more serious charge because if prosecutors can prove the case beyond a reasonable doubt there is a mandatory minimum jail sentence of 6 months. This sentence cannot be suspended and no parole is possible. If convicted, a defendant must spend every day of the 6 months in jail. The maximum penalty if the case were to be indicted and prosecuted in the Superior Court would be 10 years in state prison.

The article mentions that the State Police Collision Analysis and Reconstruction Unit (C.A.R.S. Unit) is involved in the investigation. This detail does not bode well for the man, as the C.A.R.S. Unit does not usually get called to the scene by local law enforcement unless they believe there is a seriously injured party in the crash.

Although this article paints a bleak picture for the man, it is far from certain what will happen with his criminal case. He may very well be exonerated of any wrong doing. The article indicates that all four people in the car were able to exit on their own by the time police arrived. This may indicate they did not have serious injuries, but the article doesn’t go into detail on that point. Additionally, if all four were out of the car when the police arrived no police officer observed who was in the drivers seat immediately after the accident. As part of their case prosecutors will have to prove that was driving during the accident, and that may be difficult to do depending on the details of the police investigation. Also, from the report it appears that the man went directly to Leonard Morse Hospital in Natick from the scene of the accident. Often when immediate medical treatment is necessary police do not have the opportunity to perform field sobriety tests, or a breathalyzer. Without either of these kinds of evidence it can be difficult for police to build a case against a defendant that will stand up to the scrutiny of the trial process.

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jail.jpgNorman Miller of the MertroWest Daily News reports the story of an Ashland man. According to the article members of the Massachusetts Internet Crimes Against Children Task Force (which usually consists of the State Police working in conjunction with local law enforcement and the Attorney General’s Office) were able to identify child pornography that was being traded on a file sharing network.

The article doesn’t say how the police were able to track down the man, but in the majority of these cases the police are able to obtain the IP address of the person using the file sharing network. Once police have the IP address they either get a search warrant or subpoena for the records of internet service provider associated with the IP address. From the internet service provider they get the subscriber name and address that was using that particular IP address at the time it was observed to be downloading child pornography. From there, all police need to do is get a search warrant for that address and go knock on the door. (as an aside, just a tip to regular readers, make sure to always password protect your wireless router otherwise someone can pirate your wireless signal, if someone does and downloads child pornography you can get an unpleasant knock on your door)

According to the article the police found over 3,000 images and videos of child pornography in the home. Police also indicated they seized 15 different electronic devices, and have not finished searching those items.

As of now, the man is charged with possession of child pornography. Possession of child pornography is certainly a serious charge in and of itself. The maximum penalty for possession of child pornography in Massachusetts is 5 years in state prison. Any conviction for possession of child pornography requires the defendant to register as a sex offender, regardless of whether or not he or she is sentenced to jail time.

As serious as the man’s case is already, he will face significantly increased penalties if prosecutors bring new charges of dissemination of child pornography. The article state prosecutors may pursue the dissemination charge because the man admitted that others had downloaded some of the images remotely from his computer. Any defendant convicted of dissemination of child pornography faces a minimum sentence of 10 years in state prison and can be sentenced to as many as 20 years in state prison. In addition there is also a requirement that the defendant register as a sex offender.

In cases like these often times the most important question in the case relates to the police procedure used in the investigation. Prosecutors must show a court that the police followed proper procedures in obtaining information and searching the man’s home. If the man’s constitutional rights were violated in the search of his home there is potential the evidence against him could be suppressed.

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The Springfield Republican reports on the case of a man who is now charged with cultivation of marijuana and possession of marijuana with the intent to distribute.

According to the article on March 8th police and firefighters responded to 44 Gail Street in Springfield for a report of a house fire. The first units to arrive at the home reported smoke coming from the basement area that had a strong odor of marijuana. Efforts were made to extinguish the fire and make the house safe. Allegedly after the home was safe to enter the police obtained a warrant and found 9 pounds of marijuana packaged for sale, and over 500 marijuana plants. The article did note that the plants were of varying sizes, which could mean many of the plants were mere seedlings and not actual thriving plants.

As was previously blogged on this site there has been some contradiction and confusion over marijuana laws in Massachusetts ever since voters overwhelmingly approved proposition two in 2008. That vote changed the law in Massachusetts and made possession of once or less of Marijuana no longer a crime. The kind of case that the man is facing is not at all affected by the vote decriminalizing small amounts of marijuana.

What will happen with the man’s case remains to be seen. Although at first glance this may appear to be a strong case for the District Attorney’s Office, a more thorough investigation of the facts is necessary to determine where the law may take this case. One important issue glossed over by the article is the exact timeline of when police sought a warrant, and what level of entry was made into the home prior to seeking a warrant. If police overstepped their bounds and turned a situation where they were performing a community care taking function into an investigation and evidence gathering mission prior to obtaining a warrant, the man may be entitled to have some of the evidence against him suppressed. Likewise, the prosecution will need to prove that he was actually living in the home, or participating in the activities there, and was not merely the leaseholder who came to the scene when he learned of the fire.

Although this is certainly a serious case the man can take comfort in the fact that he is not charged with trafficking marijuana. As the charges stand he is charged with cultivation and possession with intent. Neither of those charges carry a mandatory minimum jail sentence. Trafficking marijuana does carry a mandatory minimum jail sentence but, in order to prosecute the man for trafficking the District Attorney’s office must be able to prove the amount of marijuana at issue in the case is in excess of 50 pounds.

Certainly the best outcome for the man would be to win a motion to suppress the evidence, or to obtain a not guilty verdict at trial. However if he is unable to do either of those things, he may still have some hope for staying out of jail and preserving his criminal record. Negotiating a favorable plea disposition in a case like this can be difficult, but a skilled attorney may be able to not only keep the man out of jail, but also keep his criminal record preserved in a way that will limit the ability of future potential employers to see that he was ever brought to court on these charges.

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1006530_broken_glass.jpgThis week the media has done extensive reporting on the trial of 2 men who are accused of murdering 4 people in Mattapan during a drug deal gone wrong. Allegedly at one point during the trial a manwho was observing the trial got up and called one of the witnesses who was testifying a rat and a snitch. The Boston Globe now reports that the man who made these comments has been arrested and charged with the crime of witness intimidation.

In March of 2006 the legislature passed a bill targeted at decreasing gang violence and giving police more tools to arrest and prosecute gang members who terrorize the community with violent crimes. It was this bill that contained the witness intimidation charge that the man will now face. The witness intimidation portion of this bill was meant to target gang members in the community who would threaten and intimidate innocent witnesses into being too afraid to testify. Because those witness would be too afraid to testify prosecutors were unable to bring many ruthless violent gang members to justice for crimes committed in broad daylight in full view of the public. Being such a new law (most MA criminal charges are decades or even centuries older) it has been interesting to see how police and prosecutors have used the charge of witness intimidation since its inception as a tool to fight violent and dangerous gangs.

Witness intimidation is certainly a serious charge. It is a felony with a maximum penalty of 10 years in state prison. If prosecutors can prove the man did the things they allege with the intent to intimidate the witness who was testifying, it would certainly be an application of the statute that is very consistent with the original intent of the law. However, the statute itself is so open ended and broad that is frequently used by police and prosecutors to target people who have absolutely no involvement with gang activity, or even any criminal record.

Take a look at the language of the statute. Because there is virtually no limitation placed on what conduct constitutes a threat and what doesn’t this kind of charge is now used regularly against people who are arrested for the first time. Most frequently police will use this charge to elevate a simple misdemeanor domestic violence arrest and turn it into a felony case. Police are now trained that if there is any hint that during a domestic dispute one of the parties tells the other not to call the police, or physically tries to prevent them from calling the police, then witness intimidation should be charged.

In my career I have seen witness intimidation charged well over one hundred times in cases I either handled or was associated with. In the overwhelming majority of those cases the witness intimidation charge was based on some conduct alleged to have occurred in the heat of a domestic dispute. Only rarely is it used to protect witnesses to gang activity who are in fear of retribution for their testimony as the legislature intended.

In addition the statute covers many behaviors, not just threats. One doesn’t have to make a threat at all to be charged under the statue. Simply misleading a police officer is enough to bring someone up on these serious felony charges. In my opinion this gets into dangerous territory. Many witnesses provide information to the police without knowing if it is true or not. They can be charged with witness intimidation at any time by the police if they feel as though incorrect information was provided intentionally. The fact that someone didn’t intend to provide false information is a defense at trial, but the mere charge itself is a major disruption to one’s life and liberty.

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695070_-diversity_2-.jpgThe Boston Herald reports on an interesting case that came out of Boston last week. Three young women who self identify as lesbians were arrested and charged with a hate crime for allegedly assaulting a gay man at the Forest Hills T station in Jamaica Plain.

The whole incident supposedly started when the man bumped the women with a back pack when they were all in a stair well. Prosecutors allege the confrontation developed into an all out assault with all three women repeatedly punching and kicking the victim. Prosecutors told the court that the victim suffered a broken nose as a result of the altercation. He told the police that during the assault the women called him insulting homophobic slurs and he believed the attack was motivated by his sexual orientation.

Prosecutors likely used a charge called assault and battery with the intent to intimidate as the criminal offense in this case. This offense is part of the Massachusetts hate crimes laws outlined in Massachusetts General Laws Chapter 265 Section 39. This statute makes it a crime to assault someone with the intent to intimidate them because of their race, color, religion, national origin, sexual orientation or disability. If there is an injury from the assault a defendant can face a penalty of up to 5 years in state prison.

Absent from the statute is any limitation on charging someone from one race or sexual orientation with an attack on someone from that same group. Although the young women in this case have the same sexual orientation as the alleged victim, it will not guarantee they won’t be convicted. If a prosecutor can convince a jury beyond a reasonable doubt that the motivation behind the attack was to intimidate the victim because he was gay they may be able to obtain a conviction.

Although a conviction is possible in this case it will be difficult to obtain. The article states the reason for the confrontation was contact made with a backpack in the stairwell. If the jury believes the reason for the fight was the backpack, and that the name calling was simply a part of the fight they will have to find the women not guilty of the hate crime. Proving that an attack was motivated by race is easier in situations where the Ku Klux Klan or other hate groups are involved. However, in a situation like this where both the alleged attacker and the alleged victim are both members of the LGBT community it will be difficult to prove that any slurs said during the attack were part of an effort to intimidate rather than words spoken out of anger during a confrontation.

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5109947532_9585586489.jpgFew situations are as frustrating for criminal defense attorneys as when the police lose or destroy evidence that may be helpful to a client. Yesterday the Springfield Republican reported on a case where a young man is alleged to have attempted to take a police officer’s weapon from him. The young man was then arrested in what he contends was a violent arrest where he was kicked, punched and choked by police. (for more on the young man’s side of the story visit the website his supporters started) He also contends the police made up the allegations that he attempted to take an officer’s weapon to justify the violent way in which he was arrested.

A bystander who witnessed the violent arrest took some video of the altercation on her cell phone. The police confiscated the cell phone, and when it was eventually returned to the bystander, the video she had taken of the incident had been erased. This presents an enormous challenge for the defense in the case. Evidence that could help the defense convince a jury the arrest involved excessive force is now lost forever.

Although the fact the police lost or destroyed this evidence is damaging to the prosecution’s case, it does not in any way guarantee that the young man will get his chages dismissed. In Massachusetts when the police lose or destroy evidence the court is supposed to engage in a lengthy analysis of what, if any sanction is required. Before the court will even entertain a sanction the defendant has to make a showing to the court that the evidence lost was reasonably likely to be helpful to his case. It is not enough merely to speculate the lost evidence might be helpful, rather there must be a basis to believe it may be helpful from other evidence. This requirement in and of itself poses a major problem to the defense because when a videotape is destroyed its awfully difficult to prove to the court it would have been helpful, since the police deprived the defense of the opportunity to view it.

Even if the defense can show the destroyed evidence would have been helpful then dismissal is still unlikely unless a judge finds that the police acted in bad faith by losing or destroying the evidence. In the case of Commonwealth v. Sassville the Court did find that gross negligence on the part of police in destroying or losing evidence could be enough to warrant dismissal. In that case the defendant was charged with rape, and the Commonwealth had ordered the aborted fetus of the alleged victim destroyed without giving the opportunity to the defense to test that fetus and see if the defendant was the father. The court ruled the gross negligence of the Commonwealth combined with the irreplaceable nature of the evidence warranted dismissal.

It will be interesting to see how the Springfield court rules in this particular case. Although it seems clear the judge was troubled by the manner in which this video evidence was lost or destroyed, it is not at all clear that he will find that the case should be dismissed as a result.

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marijuana blog.jpgRegular readers of this blog will recall a post from December of 2011 where I outlined some of the ongoing confusion over Massachusetts marijuana laws. Last week the Supreme Judicial Court ended some of that confusion with the decisions issued in Commonwealth v. Shawn Keefner and Commonwealth v. Brian Dee.

In both of these cases the police found the defendants to be in possession of marijuana. The total amount that each defendant was alleged to have possessed was under one ounce. However, in both cases the police alleged that the way the marijuana was packaged demonstrated that they both intended to distribute the marijuana they had at some later point. In both cases the defendants were alleged to have had the marijuana in individually packaged bags.

In 2008 Massachussetts voters overwhelmingly approved the proposition 2 ballot initiative which decriminalized the possession of less than one ounce of marijuana. The defendants’ lawyers argued that because the new law decriminalized possession of marijuana under an ounce that they could not be prosecuted unless they possessed an amount over an ounce with the intention to distribute it. The language of the new law approved by voters did seem to offer support to the defense attorneys’ position.

The statutory language of the new law made it clear that possession under one ounce was decriminalized. It also made it clear that the new law did not affect any laws concerning the sale, trafficking or manufacture of marijana. However when it came to possession with the intent to distribute marijana the new law was silent as to whether or not the decriminlization applied.

In deciding these cases the Supreme Judicial Court relied on a series of prior decisions in civil cases, where the court had found the statutes they were interpreting lacking, and had to apply their own reasonable construction. Their decision implied that this new law was carelessly drafted, and as a result their interpretation keeps possession of marijuana under an ounce illegal if there is evidence the person intends to distribute that marijuana. In part the court relied on what it felt the intent was of voters who supported this new law. Individuals who possess marijuana in an amount less than an ounce who are not believed to intend to distribute it remain free from criminal liability.

The Supreme Judicial Court did not at all address the rule of lenity in their decision. The rule of lenity is a propsition in United States law that states when statutes are contradictory or unclear any ambiguity should be resolved in favor of a defendant. For an excellent detailed description of the rule of lenity read this blog post from Attorney Gregory Pope. Many who felt the case should have been decided in favor of the defendants hoped the SJC would consider the rule of lenity in their decision. Unfortunately they chose not to address it.

Although I was disappointed in the decision made by the SJC it will now bring consistency to how these cases are treated across the Commonwealth. Since the new law became effective in 2009 each case was being treated differently depending on how each individual district court judge interpreted the ambiguity in the stautes. Now attorneys across the state will at least have the ability to advise clients with more authority on how the law will view their individual case.

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castle.jpgAs a Massachusetts Criminal Defense Lawyer people often come to me with questions about hypothetical situations, wondering what their rights are if they are ever put in a position of danger. In Massachusetts our law does allow for a person to defend themselves if they are put in fear of an imminent attack from another. The legal level of force that a person can use to defend themselves from someone who is a threat is determined by what kind of threat the person faces. For example if you are walking down the street and get into a confrontation with someone, and that person draws a gun with the intent to shoot you the law would allow you to meet that deadly threat with deadly force of your own. You would be well within your rights to draw your own weapon and fire first in an attempt to save yourself from being shot and killed.

However most cases involve some sort of threat of force well below a gun being drawn. In those cases where deadly force is not threatened a person is only allowed to respond with non deadly force. For example, if someone were to take a swing at you it would be well within your rights to swing back, or to try to restrain the person and stop them from hitting you again.

Unfortunately, people who act reasonably in self defense end up facing criminal charges on a regular basis. When a person faces criminal charges for actions taken in self defense a jury can find them not guilty if their attorney is able to convince the jury they may have acted reasonably under the circumstances.

At trial there is never a burden on the defendant to prove that he or she acted in self defense, rather the prosecution must prove that a defendant did not act in self defense. One of the things a jury is instructed to take into account when considering self defense is whether or not the person had an opportunity to retreat rather than use force in their defense.

In Massachusetts if an incident occurs inside someone’s own home judge can order the jury not to consider whether or not there was an opportunity to retreat. This principle is often referred to as the “Castle Defense”. The idea is that a man’s home is his castle, and that no man should have to consider retreat from a tresapasser threatening great bodily injury or death in his own home. In Massachusetts this defense is statutory and flows from Section 278 Chapter 8A of the Massachusetts General Laws. As a result if someone is accused of a crime when they are in their own home, and the alleged victim was a tresspasser at the time of the alleged crime, a judge can instruct the jury on self defense and does not have to include language about the defendant not having an opportunity to retreat.

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In Massachusetts the penalties for DUI offenses (or OUI offenses as they are more commonly referred to in Massachusetts) have become increasingly severe over the years. That is especially true in cases illhere the defendant is alleged to be a repeat offender.

Unfortunately for one man, he is finding out just how severe those penalties can be right now. The Worcester Telegram reports that the man was arrested this week on charges of OUI after a car he was in struck a tree in an accident in Northboro, MA.

The police allege that the man was driving the car when the accident occurred. What makes this case more interesting than the average OUI is that it appears at the time the police responded to the accident both the man and the other person in the vehicle were no longer inside.

The police report that when they spoke to the man he smelled of alcohol, had trouble balancing, slurred his speech and glassy eyes. They also had a conversation with him where he supposedly admitted he had been driving the car. However, according to police they also spoke to his wife who was at the scene and she also told police that she had been driving. This fact could make this case difficult for prosecutors to prove at trial.

In any case the prosecution brings against a defendant each charge is broken down into elements. Each element must be proven to a jury or a judge beyond a reasonable doubt in order for the jury to reach a verdict of guilty.

In a DUI or OUI cases the elements that must be proven are that the defendant “operated” a motor vehicle, that he did so on a public way, and that at the time he operated the vehicle he was under the influence of alcohol. In this case there is clearly some doubt as to who was driving the car because when police responded both parties indicated they had been driving. His defense may rely heavily on the fact that there is not enough evidence for a jury to conclude that the man was the driver of the car during the accident. If a jury or judge is not convinced he was driving that night beyond a reasonable doubt he will have to be found not guilty of the offense.

Either way the stakes are certainly high for the man. A conviction for operating a motor vehicle under the influence 5th offense carries a mandatory minimum penalty of two years in jail. There is no possibility of the sentence being suspended and there is no parole or earned good time prior to serving every day of two years in jail. On top of that if convicted he will face a lifetime suspension of his license in Massachusetts.

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car peeling out.jpgRecently the Springfield Republican ran an article about the arrest of a woman for her alleged role in a theft of a car that occurred over craigslist. The article tells the story of a Springfield man who attempted to sell his Nissan Maxima on criagslist.org. The seller went to meet a potential buyer in the parking lost of the basketball hall of fame. While showing the car to the potential buyer, the seller got down on his hands and knees to look at the under carriage of the car. Once he did this the potential buyer drove the car off and did not return.

The seller reported the car stolen, and was surprised a few days later when he received a phone call from a person offering to sell his own car back to him for $500 dollars. When the seller arranged to meet someone to get the vehicle back he was allegedly approached by the defendant and she tried to resell him his own title. At that point she was arrested by the police.

Larceny of a motor vehicle is a very serious crime in Massachusetts. It is a felony and punishable by up to 15 years in state prison. In addition to the potential lengthy prison sentence any conviction on this offense must be reported to the Massachusetts Registry of Motor Vehicles. The RMV is required to suspend the license of anyone convicted for 1 year the first time they are convicted, and for 5 years on any subsequent offense.

The defendant finds herself in a difficult position now. She has exposed herself to a larceny charge, and although prosecutors have only charged larceny over $250 to this point they could very well add the additional larceny of a motor vehicle charge at a later date, or in a grand jury presentation if they choose to indict her.

Of course at this point the case against the defendant only consists of allegations. The report from The Republican leaves a lot of information unknown to the reader. It is entirely possible the defendant was a fall guy, and thought that she was engaging in an entirely legal actions when she approached the owner the day she was arrested.

Whatever the case is, the defendant will need an experienced criminal defense lawyer to help her fight these allegations and make sure that her rights and record are protected for the future.

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