Articles Posted in Juvenile

hammer-to-fall-673264-m.jpgOn December 24, 2013, in Commonwealth v. Diatchenko, 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, laid out in Miller v. Alabama, 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. Following the decision, the SJC issued a ruling in Commonwealth v. Brown, which lays out the sentencing scheme that should be applied to juveniles in light of Diatchenko.

Brown was charged with shooting and killing his friend on June 20, 2009. At the time of the shooting, Brown was just seventeen years old. On June 25, 2012, while Brown was still awaiting trial, the U.S. Supreme Court issued the decision in Miller. Brown was tried in August 2012 and convicted of murder in the first degree. Following the conviction, the sentence that the trial judge could impose was unclear. Under G. L. c. 265, § 2, all defendants over the age of fourteen who are convicted of murder in the first degree must be sentenced to life without the possibility of parole. In light of the Miller decision, however, the trial court judge was not legally allowed to impose a mandatory sentence of life-without-parole on a juvenile. The Commonwealth filed a petition for review of the issue by the SJC. Brown’s sentencing was stayed until the SJC issued a decision.

In its review, the SJC first addressed whether Brown is entitled to the benefit of the law established under Miller and Diatchenko and concluded that the rulings laid out in the cases should be applied to Brown. The Court reasoned that new law must be applied to prosecutions that are not yet final at the time the new law is established, and that Brown’s conviction was not yet final because he had not been sentenced.

The Court then went on to discuss what sentence the trial court judge could impose in light of Miller and Diatchenko. Both the Commonwealth and Brown’s attorney made arguments to the trial court judge regarding this issue. The Commonwealth took the position that the court had the authority to sentence Brown to life in prison without the possibility of parole on a discretionary basis. Further, The Commonwealth argued that if the judge declined to impose a sentence of life without parole, the court still had the authority to impose a sentence of life, and set the minimum term that the defendant must serve before parole eligibility – for example, the court could determine that the defendant should serve at least thirty years before becoming eligible for parole. Brown’s attorney took the position that the court had the authority to sentence Brown to less than a life sentence, such as twenty years, because of the ruling in Miller.

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u-s--supreme-court-building-washington-dc-658248-m.jpgOn December 24, 2013, in Diatchenko v. District Attorney for the Suffolk District, the Supreme Judicial Court held that the imposition of life without parole sentences on juveniles is unconstitutional. Diatchenko was convicted of first-degree murder for killing a man in 1981, when Diatchenko was just seventeen. At that time, all seventeen year olds accused of a crime were treated as adults, therefore Diatchenko was tried as an adult. Further, under G. L. c. 265, § 2, a first-degree murder conviction carries a mandatory sentence of life in prison without the possibility of parole. Therefore, following the conviction, Diatchenko was sentenced to life without parole. Diatchenko subsequently appealed the conviction. The appeal included the claim that his sentence violated the 8th and 14th Amendments to the United States Constitution and Article 26 of the Massachusetts Declaration of Rights, all of which prohibit cruel and unusual punishment. Diatchenko’s conviction was reviewed by the SJC and was ultimately affirmed, becoming final.

Thirty years later, however, on June 25, 2012, the United States Supreme Court issued a decision in Miller v. Alabama. Miller held that mandatory life sentences for defendants who committed crimes when they were under the age of eighteen are illegal because they violate the 8th Amendment’s prohibition against cruel and unusual punishment. In light of the Miller decision, Diatchenko filed a petition challenging the constitutionality of his sentence under G. L. c. 265, § 2, and seeking a declaration that Article 26 categorically bars the imposition of a sentence of life without parole for offenders who were under the age of eighteen when they committed first-degree murder.

In deciding Diatchenko’s petition, the SJC first addressed whether the rule set out in Miller is retroactive – i.e., whether the rule should apply to convictions that became final prior to the Supreme Court’s decision in Miller. The SJC acknowledged that a new constitutional rule is not generally retroactive, but went on to state that there are two recognized exceptions to this rule. First, a new constitutional rule is retroactive if the rule is “substantive,” meaning that the rule prohibits a certain category of punishment for a class of defendants because of the defendants’ status, or the offense. Second, a new rule is retroactive if the rule implicates an issue of fundamental fairness and accuracy of the criminal proceeding.

Bearing these exceptions in mind, the SJC concluded that rule set forth in Miller is substantive because it explicitly bars the imposition of a certain category of punishment – mandatory life without the possibility of parole – on a specific class of defendants – those under the age of eighteen at the time the offense was committed. Therefore, the SJC determined that the Miller rule should be applied retroactively to ensure that juvenile offenders “do not face a punishment that our criminal law cannot constitutionally impose on them.”

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justice-srb-1-1040136-m.jpgFor a criminal charge to issue against an individual, a police officer must submit an application to the court for a criminal complaint. The application includes the alleged facts and the charges sought. A clerk magistrate then reviews the application to determine whether there is a sufficient basis for the complaint to issue. The specific legal standard is whether the information presented to the clerk magistrate establishes probable cause to believe that the individual committed a particular crime. If the clerk magistrate finds that there is probable cause, the complaint issues and the individual charged is brought to court and is arraigned on the charges.
An arraignment essentially consists of the court notifying the person of the charges, a plea of not guilty entering, and a bail argument. Once a person has been arraigned, the charge is entered onto the person’s Criminal Offender Record Information (CORI) or, in the case of juveniles, Court Activity Record Information (CARI). Following the arraignment, the case proceeds through the pre-trial process, and ultimately to some sort of resolution, such as a trial, a dismissal, or a plea. The pre-trial process may include a motion to dismiss on the ground that the application for the complaint lacked sufficient probable cause, and therefore the clerk magistrate should not have issued the complaint.

When a motion to dismiss for lack of probable cause is brought, the judge must review the information presented to the clerk magistrate and make his or her own determination as to whether the information was sufficient to establish probable cause. Even where a person wins a motion to dismiss, however, the charge remains on the person’s CORI or CARI. Further, although public access to a person’s CORI/CARI is limited, certain institutions, such as courts, public housing authorities, and certain employers, do have access to CORI/CARI information. Therefore, institutions with such access are able to see that a person has been charged with a crime, including the specific charge, even if the charges are ultimately dismissed for lack of probable cause.

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brownies-three-664593-s.jpgTwo students at Framingham High School showed up at the nurse’s office on Monday, October 7th. They were not there, however, for the typical stomachache or sore throat – these students had apparently eaten pot brownies and become ill as a result. According to an article in the Metrowest Daily News, the students had bought the brownies that morning from a fellow classmate. The students ate the brownies just before homeroom and showed up in the nurse’s office a short time later. After the students’ complaints, police were notified and initiated an investigation. The classmate allegedly responsible for selling the brownies is sixteen years old and is therefore considered to be a juvenile. The juvenile’s name was not released but police did state that it was a female in her senior year. After the police arrived on scene to investigate, they searched the juvenile’s bag and reportedly found a total of eight more brownies. They also spoke to the juvenile, who admitted to selling the brownies, and stated that she had made them after finding a recipe online. The juvenile is now facing charges of distributing marijuana, and for having drugs on a school campus.

Fortunately for the juvenile, the Commonwealth may have some trouble introducing her statements, and the brownies, against her at trial. If the juvenile was in “custody” at the time of the police questioning- i.e., if a reasonable person in her position would not have felt free to leave – the police were required to give her Miranda warnings before speaking with her. When an investigation involves an adult suspect, simply providing the person with her Miranda warnings is sufficient. If the suspect agrees to waive her rights and speak with the police, the police are free to ask questions.

When it comes to juveniles, however, the laws are different – the scope of Miranda is broader. The Supreme Judicial Court has recognized that there are special problems when dealing with juveniles and Miranda waivers. The Court has specifically recognized that juveniles’ ability to understand Miranda waivers is limited and that juveniles cannot be compared to adults, who are presumably in full possession of their senses and knowledgeable of the consequences of their admissions. In light of this, juveniles who are suspected of a crime have additional protections to ensure that they understand the ramifications of waiving Miranda. Such additional protections include the Interested Adult Rule, which states that there should ordinarily be a “meaningful consultation” with a parent, interested adult, or attorney about whether the juvenile should waive her Miranda rights prior to speaking with the police.

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stock-photo-12689293-prisoner-s-arms-resting-on-cell-bars.jpgOn September 18, 2013, Governor Deval Patrick signed An Act Expanding Juvenile Jurisdiction into law. Before this law was signed, all seventeen year olds accused of a crime in Massachusetts were automatically treated as adults, regardless of the circumstances or the severity of the offense. This new legislation raises the upper limit of juvenile court jurisdiction in Massachusetts from seventeen years old to eighteen (the law does not change the juvenile court’s lack of jurisdiction over first or second degree murder cases where the defendant is fourteen or older on the date of the offense). Advocates for raising the age of juvenile court jurisdiction have long argued that treating all seventeen year olds accused of a crime as adults is out of step with national standards – a majority of other states and the federal government use eighteen as the starting age for adult criminal jurisdiction. The legislature, and ultimately Governor Patrick, answered their arguments with the new law, striking a balance between holding young people accountable for their actions while acknowledging that they are in a unique position to change and grow from their mistakes.

The statute is effective immediately, but there are still many questions about its applicability. Of particular concern is the impact that the bill will have on pending cases in district and superior court. As a general rule, changes in the law are applied prospectively – meaning that a new law only applies to cases initiated after the law is in effect. There are, however, several exceptions to this rule, including where the law explicitly states that it will be retroactive, or where a lack of retroactivity would cause a result that is inconsistent with the intent of the law. This law is silent as to retroactivity. Therefore, it must be determined whether a failure to make the law retroactive would conflict with the law’s intent. On September 16, 2013, the Chief Justice of the Trial Court, Paula Carey, issued a memorandum on the issue of retroactivity. The memorandum states that the trial court considers the new law to be prospective only and that the court does not intend to apply the law to pending cases. Chief Justice Carey’s memorandum, however, is not likely to be the last word on this issue. To the contrary, it is extremely likely that defense attorneys and other advocates will argue that the law does apply to pending matters.

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gavel-thumb-240x240-72793.jpgOn June 20, 2009, a seventeen year old named Marquise Browne shot and killed his friend, Tyriffe Lewis, in Callahan State Park, located in Framingham. According to the police, Browne had accused Lewis of stealing his marijuana at a party the day before the murder. After Browne made the accusation, the two got into a fistfight, and Browne lost. The next day, Browne reportedly told Lewis that they were going to smoke marijuana in the park. Once they got there, Browne shot Lewis, who subsequently died. According to an article in the MetroWest Daily News, the severity of the sentence the court can impose in Browne’s case is currently in dispute.

Even though thirty-nine other states and the federal government use eighteen as the starting age for adult criminal jurisdiction, under current Massachusetts law, all seventeen year olds accused of a crime are treated as adults, regardless of the severity of the offense. Therefore, although Browne was just seventeen at the time of the murder, because it occurred in Massachusetts, he was tried as an adult. On August 22, 2012, following a trial, he was convicted of first-degree murder.

Under G. L. c. 265, § 2, a first-degree murder conviction carries an automatic sentence of life in prison without parole. However, on June 25, 2012, after Browne committed the murder but before he was convicted at trial, the United States Supreme Court issued a decision in Miller v. Alabama. This decision held that mandatory life sentences for defendants who committed crimes when they were under the age of eighteen are illegal because such sentences are a violation of the VIII Amendment, which prohibits cruel and unusual punishment. In light of the Miller decision, and the fact that Browne was seventeen at the time of the murder, the trial court judge in Browne’s case was not legally allowed to impose a mandatory sentence of life without parole after Browne’s conviction. Both the defense and the prosecution asked the court to hold a hearing to determine what sentence the court could and should impose in Browne’s case.

The prosecution sought to argue that the court had the authority to sentence Browne to life in prison without the possibility of parole, and should do so. In other words, even though an automatic sentence of life without parole is illegal following the Miller decision, the prosecution sought to argue that the court still had the authority to sentence an individual convicted of first degree murder to life without parole, if the court determined that such a sentence was reasonable in the context of the case. The prosecution further sought to argue that if the judge declined to impose a sentence of life without parole, the court had the authority to impose a sentence of life, and set the minimum term that the defendant must serve before parole eligibility – for example, the court could determine that the defendant should serve at least thirty years before becoming eligible for parole.

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klcc-1-833930-m.jpgAccording to a recent article by Norman Miller at the MetroWest Daily News, Norma Esquivel, 32, of Framingham is facing charges after allegedly taking three teenagers, including two of her children, shoplifting with her at the Natick Mall on Friday, July 26th. Esquivel also reportedly had a 3-year old and 1-year old child with her in a stroller.

Esquivel was arrested Friday at approximately 6:00 p.m. after store security at J.C. Penney allegedly caught her leaving the store with more than $740 worth of goods that she allegedly stole with the three teens.

Store security had reportedly been watching Esquivel and the teenagers because they allegedly recognized them from a past shoplifting incident. Esquivel and two teenage girls allegedly took several pieces of clothing into a dressing room and then emerged empty-handed two different times. Security personnel reportedly found price tags and empty clothes hangers in the dressing room. The teenage boy allegedly took several pairs of earrings and put them in his pocket.

After the woman and girls left the dressing room the second time, the group reportedly left, but security stopped them. The goods were allegedly found in the stroller that the group was using for the children.

Esquivel is charged with three counts of contributing to the delinquency of a child, larceny of property worth more than $250, and conspiracy to commit a crime. She was arraigned at Framingham District Court on Tuesday, July 30th. She was released without bail and is due in court on September 17th for a pretrial conference. The three teenagers will be summoned to Framingham Juvenile Court and charged with larceny of property worth more than $250 and conspiracy to commit a crime.

Esquivel is facing serious charges, including a felony charge. If she were indicted and tried in the superior court she could be facing up to 5 years in prison and significant fines. If convicted, these charges will have lasting repercussions and affect her life for a long time to come. In order to prevail on the misdemeanor charge of contributing to the delinquency of a child, prosecutors will have to prove that she knowingly or wilfully encouraged, aided, or contributed to a child under the age of 16 to violate a law. To prevail on the larceny charge, prosecutors will have to prove that Esquivel took and carried away property that was owned by someone else and that she did so with the intent to deprive that person of the property permanently.

The teenagers are also facing serious charges, including a felony. Being convicted of a felony at such a young age can affect a person’s life well into the future and impact his or her ability to fulfill aspirations of college and career success.

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565690_car_stealing.jpegDamien R. Hughes, 19, of 19 Nash St., and a 16-year-old juvenile were arrested December 19th for allegedly committing 12 vehicle break-ins and a car theft, according to an article in the MetroWest Daily News. The break-ins and theft reportedly took place in Westborough between Saturday night and December 19th.

Five of the break-ins were reported on Mohawk Circle, three on Hadley Lane, one on Edward Dunn Way, one on Chestnut Street, one on Andrews Road and one on Milk Street, according to police.

Police reportedly arrested Hughes and the juvenile after they allegedly used gift cards at that were reported stolen from the break-in victims’ vehicles earlier this week. One of the suspects allegedly had a stolen gift card in his pocket at the time of arrest. Police also reportedly found numerous pieces of property in the juvenile suspect’s apartment that matched the descriptions of property that was reported stolen from vehicles that had recently been broken into.

Police reportedly located a 2004 Toyota that had been reported stolen from a residence on Old Nourse Street. The vehicle was reportedly parked in the parking lot of the closed Friendly’s in front of Wal-Mart and was reportedly found by police on December 19th after being allegedly stolen earlier in the day. The recovered items will be identified by the victims of the break-ins, according to police.

The 16-year old was arrested for receiving stolen property and released to his father’s custody for his appearance in Worcester Juvenile Court. Hughes was arrested on charges of receiving stolen property and is being held on a probation warrant for his appearance in Westborough District Court tomorrow.

In order to prevail on their cases against these defendants, prosecutors will have to prove that the defendants knew that the property was stolen. The defendants cannot be convicted if they acted negligently or recklessly in obtaining the stolen property.

The value of the property and the number of times the defendants have been convicted for this crime determines whether they will be charged with a felony or a misdemeanor. If the value of the property is under $250 and it is his first offense, he will be charged with a misdemeanor. If the value of the property is over $250 and he has been previously convicted for this type of offense he will be charged with a felony. A conviction for either the misdemeanor or felony version of this offense can lead to jail time and fines. The article does not mention what the value of the alleged stolen property is in this case.

Hughes could be facing severe penalties since he is already on probation. Courts often increase a person’s punishment with each conviction. Also, if he is on probation for a similar crime, he could be facing felony charges.

Prosecutors may have a hard time meeting their burden of proving that the defendants knew that the property they allegedly possessed was stolen. Prosecutors will need to prove that they know how the property that was allegedly found in the juvenile suspect’s apartment got into his apartment. Additionally, if the property was found in the juvenile suspect’s apartment, the prosecutors may have a hard time proving that Hughes was in possession of stolen property.

The juvenile suspect in this case needs an aggressive attorney that can fight his case diligently and protect his record. Being convicted of a crime like the ones with which he has been charged can have grave consequences for his future. A conviction may hinder his ability to get into college or to find a job.

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1342344_a_modern_school.jpgA recent article released by Citizens for Juvenile Justice details a new report about arrests in Massachusetts Schools. The report, “Arrested Futures: The Criminalization of School Discipline in Massachusetts’s Three Largest School Districts,” reviews arrest data from the 2007-08, 2008-09, and2009-10 school years, from Boston, Springfield, and Worcester schools. In all three districts, arrests for relatively minor misbehavior made up a substantial percentage, and in some cases the majority, of all school-based arrests
A substantial portion of those who are arrested in school are charged with public order offenses such as “disorderly conduct,” “disturbing a lawful assembly” and “violating codes of conduct.” These arrests are often due to behaviors associated with youthful defiance, such as talking back to teachers, refusing to sit down or comply with attempts to punish students, or writing on desks. Others are arrested for assault-related charges stemming from school yard fights.

Many schools in Massachusetts have officers on-site daily to patrol their schools. Some use officers from the town’s police, while others have officers who work for the school system. While some school districts use on-site officers to apprehend students who pose a real and immediate threat to the physical safety of those around them, others schools use these officers to mostly enforce their code of student conduct. Officers are often encouraged to arrest students, in many cases using public order offenses as a justification. These officers mostly arrest students who are unruly, disrespectful, use profanity, or show “attitude.”

In Massachusetts all seventeen year olds are automatically treated as adults for all offenses. Because of this law, an arrest can also mean the creation of a permanent, adult criminal record. It can also lead to incarceration alongside adult criminal offenders. Your child could be arrested at school for minor disruptive behavior; if your child is seventeen years old or older, your child could then have an adult criminal record from that and maybe even incarceration. These charges could have grave consequences for your child’s future.

These policies are causing more children and young adults to be arrested than would be if police were not so heavily present in schools. Infractions that would normally be a trip to the principal’s office or after-school detention are now a trip to jail and an appearance in court. These policies are worsening the “school to prison pipeline” that plagues our youth. Protecting children from being convicted of offenses, and especially from spending time incarcerated, is important to insure our children have a bright future and a clean criminal record.

If your child has been arrested, you’ll need a skilled and experienced Massachusetts criminal defense lawyer on your side. In addition to my experience defending adults in Massachusetts Courts, I have experience defending children in the Massachusetts Juvenile Courts.

If your child is facing criminal charges or is being investigated, you need an attorney that has extensive experience in the Juvenile Court System. As a former Prosecutor in the Middlesex County District Attorney’s Office, I have handled countless juvenile court cases and use this knowledge and experience in the Juvenile Court System to successfully fight for your child.

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angry teen.jpgMassachusetts Juvenile Courts were originally established with a mission entirely different from that of the adult District Courts. Juvenile Court is given a mandate to treat juveniles accused of crimes as children in need of age, guidance, and encouragement rather than criminals. To that end, when a child is put on trial for a crime in Massachusetts the jury is not instructed to find the juvenile guilty or not guilty. Instead, they are told if they believe the juvenile is responsible for the accusation they are to find him “delinquent”, rather than guilty.

For years there has been an ongoing debate about what options a judge has in sentencing a juvenile if he or she is found delinquent at trial. Some judges believed that after a trial a judge must enter a delinquent finding on the child’s record, and proceed to sentencing the child. This is in line with what occurs in adult court. In adult court defendants can ask the court to continue a criminal case without any finding against them and go on probation. If the defendant successfully completes probation the charge is dismissed. A defendant can only request this disposition before the trial of their case. After a trial in the adult District Courts if a defendant is found guilty a judge must enter that guilty finding on the record and proceed to sentencing. A judge does not have the authority to continue the case without a finding after trial.

Some Juvenile Court judges have always argued that because of the statutory language related to Juvenile Court they have the authority to continue a case without a finding in Juvenile Court even if the juvenile is found delinquent at trial. This debate was finally settled recently by the Supreme Judicial Court in the decision of Commonwealth v. Magnus M., a juvenile.

In the Magnus M. decision the SJC considered the case of a young man that was found delinquent by a jury for breaking and entering into a motor vehicle in the nighttime. After the jury rendered its verdict, the judge declined to find the juvenile delinquent, and instead continued the case without a finding (“CWOF”). The District Attorney’s Office objected and filed an appeal with a higher court in an attempt to get the CWOF overtuned and a delinquent finding entered.

After considering the the case the SJC came down on the side of the juvenile and the judge that granted the CWOF. In their decision the SJC relied on language in Massachusetts law that distinguishes the mission of the Juvenile Court from that in the adult court system. This is a favorable decision for juveniles facing delinquency charges, and reduces some of the risk associated with taking a case to trial in Juvenile Court.

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