Articles Posted in Law Commentary

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balance-1172786-300x204In Commonwealth v. Williams, the Supreme Judicial Court set forth the proper procedure for a judge to follow in determining whether a prospective juror — who discloses a belief or opinion based on his or her life experiences — can nonetheless impartially evaluate the evidence and apply the law in the case to be tried.

The background was as follows. “During jury selection and [voir dire for the African-American defendant’s trial on a drug charge,] the judge asked the entire venire whether ‘there [was] anything about the subject matter or your views about the subject matter that would affect your ability to be fair and impartial in deciding the case?’” A prospective juror answered in the affirmative. In the ensuing voir dire at sidebar, she stated her opinion, based on her work with low income teenagers “‘convicted of drug crimes,’” “that ‘the system is rigged against young African American males.’ The judge asked questions in an attempt to determine whether the prospective juror could be impartial.” The first question was: “‘You think that belief might interfere with your ability to be fair and impartial?’ The prospective juror responded, ‘I don’t think so.’” The judge then asked, “‘You … think you can put aside that opinion and bias –’ He did not get a chance to finish the question because the prospective juror interrupted him, stating that she did not think that she could put ‘it’ aside, and that ‘it’ was ‘the lens that [she viewed] the world through, but [she thought she could] listen to the evidence’” in an unbiased manner. The judge then said, “‘All right. But you’re going to have to be able to put that out of your mind and look at only the evidence.’ When the judge asked her, ‘Do you think you can do that?’ the prospective juror responded, ‘I think so.’ Finally the judge asked: ‘You think … your experiences with … people in that type of a situation is going to have you look at it differently,’ implying that the prospective juror could not take her life experiences into account as a juror. After the juror responded, ‘Probably,’ the judge excused her for cause” over the defendant’s objection. At “the end of jury selection, the Commonwealth and the defendant each had one remaining peremptory challenge. Ultimately, the jury found the defendant guilty.” On appeal, the defendant argued “that it was error to dismiss the prospective juror for cause because neither her work experience nor her belief that the criminal justice system is unfair to African-American men rendered her unfit to serve.”

In its decision, the SJC noted that its “jurisprudence is somewhat muddled regarding the proper procedure for determining impartiality when a prospective juror expresses any preconceived opinions” “based on his or her life experiences or belief system,” as distinct from opinions “regarding the case to be tried.” “Nonetheless, there is an important difference between the two: asking a prospective juror to put aside his or her preconceived notions about the case to be tried is entirely appropriate (and indeed necessary); however, asking him or her to put aside opinions formed based on his or her life experiences or belief system is not.” “It would neither be possible nor desirable to select a jury whose members did not bring their life experiences to the court room…. Thus, a prospective juror may not be excused for cause merely because he or she believes that African-American males receive disparate treatment in the criminal justice system.” “[A]n otherwise qualified prospective juror should only be excused for cause if, given his or her experiences and resulting beliefs, the judge concludes that the prospective juror is unable to fairly evaluate the evidence presented and properly apply the law.” Continue reading →

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info-sign-question-mark-1445039-300x265In Commonwealth v. Tiscione, the Court vacated the defendant’s convictions because the judge discharged a deliberating juror “for reasons that were not purely personal to the juror.”

The background was as follows. On the second day of jury deliberations, “the jury submitted a note to the trial judge asking, ‘If we cannot get 12-0, must we vote “not guilty”?’ The judge brought the jury into the court room and instructed them that all verdicts must be unanimous. During the lunch break, a court officer informed the judge that juror no. 44 had removed herself from the jury room, that she was ‘visibly upset, visibly shaken,’ and that she stated that ‘she could not continue as a juror.’…. The … juror … was brought before the [judge] for a colloquy…. [S]he told the judge that [she was upset because] ‘a couple people [were] being argumentative,’ [and] another juror accused her of ‘putting words in [his] mouth.’…. She acknowledged, however, that she did not feel threatened. The judge spoke with the parties outside the juror’s presence and indicated that, based on her responses, it appeared that the juror’s distress stemmed from her views on the case. When the juror returned, the judge made further inquiry. He noted that the juror was ‘emotional,’ and asked her about it. The juror responded by listing several family members and the health issues each was experiencing…. She stated that she ‘[felt] like [she] should be with family,’” instead of in the jury deliberation room, where “‘it’s just arguing, and I’m uncomfortable.’…. Ultimately, the judge concluded that there was ‘good cause’ to discharge the juror, finding at that time that she had ‘a personal issue,’ that ‘the burdens in her life’ were ‘significant,’ that ‘her personal emotional state … ha[d] overwhelmed her,’ and that ‘she no longer [had] an ability to participate as a juror in this case.’…. Over the defendant’s objection, the judge discharged the juror[,] replaced her with an alternate juror,” and “instructed the remaining jurors to ‘begin deliberations anew.’…. At some point during the renewed deliberations, the [judge] belatedly received a note generated … after the jury had received their supplementary instruction that all verdicts had to be unanimous but before juror no. 44 was dismissed. This note indicated that, despite the judge’s supplementary instruction, the jury had remained deadlocked…. [N]inety minutes after the alternate juror joined the jury, they returned guilty verdicts on all charges before them.” On appeal, the defendant challenged the discharge of juror no. 44. Continue reading →

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gavel-1238036-300x201In Commonwealth v. Carter, the Supreme Judicial Court “conclude[d] that the evidence [at the jury-waived trial] was sufficient to support the judge’s finding of proof beyond a reasonable doubt that the defendant, who was a juvenile at the time, committed involuntary manslaughter as a youthful offender” by verbally coercing her eighteen year old boy friend to commit suicide.

The background was as follows. On July 12, 2014, the victim “committed suicide by inhaling carbon monoxide that was produced by a gasoline powered water pump located in [his] truck.” The defendant and the victim “rarely saw each other in person, but they maintained a long-distance relationship” through text messages and cell phone conversations. “A frequent subject of their communications was the victim’s fragile mental health, including his suicidal thoughts. Between October 2012 and July 2014, the victim attempted suicide several times by various means.” In each instance, he “abandoned [the] attempt or sought rescue. At first, the defendant urged the victim to seek professional help for his mental illness.” Later, however, she assisted the victim in planning “how, where, and when he would [kill himself], and downplayed his fears about how his suicide would affect his family. She also repeatedly chastised him for his indecision and delay.” “In the days leading to July 12, 2014, the victim continued planning his suicide, including by securing a water pump that he would use to generate carbon monoxide in his closed truck. On July 12, the victim drove his truck to a local store’s parking lot and started the pump. While the pump was … filling the truck with carbon monoxide, the defendant and victim were in contact by cell phone…. There is no contemporaneous record of what [they] said to each other during those calls. The defendant, however, sent a text to a friend at 8:02 p.m., shortly after the [last] call: ‘he just called me and there was a loud noise like a motor and I heard moaning like someone was in pain, and he wouldn’t answer when I said his name….’ And at 8:25 p.m., she again texted that friend: ‘I think he just killed himself.’…. Weeks later, on September 15, 2014, she texted the … friend again, saying in part: ‘I failed [the victim] I wasn’t supposed to let that happen…. [H]is death is my fault like honestly I could have stopped him I was on the phone with him and he got out of the [truck] because it was working and he got scared and I fucking told him to get back in … because I knew he would do it all over again the next day and I couldn’t have him live the way he was living anymore I couldn’t do it I wouldn’t let him.’ The judge found that the victim got out of the truck, seeking fresh air, in a way similar to how he had abandoned his prior suicide attempts[,]” but that the defendant “instructed him to get back in, knowing that it had become a toxic environment and knowing the victim’s fears, doubts, and fragile mental state. The victim followed that instruction. Thereafter, the defendant, knowing the victim was inside the truck and that the water pump was operating … took no steps to save him. She did not call emergency personnel, contact the victim’s family, or instruct him to get out of the truck. The victim remained in the truck and succumbed to the carbon monoxide. The judge concluded that the defendant’s actions and her failure to act constituted … wanton and reckless conduct that caused the victim’s death,” i.e., involuntary manslaughter. Continue reading →

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gavel-2-1236453-300x200In a recent United States Supreme Court decision, Flowers v. Mississippi, the Court reversed Flowers’s murder conviction because the state prosecutor “discriminate[d] on the basis of race when exercising peremptory challenges against prospective jurors,” contrary to the principles set forth in Batson v. Kentucky, 476 U.S. 79 (1986).

The background was as follows. Flowers, who is black, “allegedly murdered four people…. He has been tried six separate times before a jury for murder. The same lead prosecutor [who is white] represented the State in all six trials. In the initial three trials, Flowers was convicted, but the Mississippi Supreme Court reversed each conviction. In the first trial, Flowers was convicted, but the Mississippi Supreme Court reversed the conviction due to ‘numerous instances of prosecutorial misconduct.’…. In the second trial, the trial court found that the prosecutor discriminated on the basis of race in the peremptory challenge of a black juror. The trial court seated the black juror. Flowers was then convicted, but the Mississippi Supreme Court again reversed the conviction because of prosecutorial misconduct at trial. In the third trial, Flowers was convicted, but the Mississippi Supreme Court yet again reversed the conviction, this time because the court concluded that the prosecutor had again discriminated against black prospective jurors in the jury selection process…. The fourth and fifth trials of Flowers ended in mistrials…. In his sixth trial, which is the one at issue here, Flowers was convicted. The State struck five of the six black prospective jurors. On appeal, Flowers argued that the State again violated Batson in exercising peremptory strikes against black prospective jurors…. [T]he Mississippi Supreme Court affirmed the conviction” and Flowers sought certiorari. Continue reading →

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balance-1172800-1-300x204In a recent case – District Attorney for the Northern District v. Superior Court Department – the Supreme Judicial Court affirmed, in whole or in part, “three post-conviction orders, issued by three different Superior Court judges …, requiring that [non-documentary] exhibits in the clerk’s office of the Superior Court in Middlesex County … be transferred to local police departments.”

The Court also addressed more generally “the vexing issue of the safe storage and preservation of exhibits admitted in evidence in criminal trials, as mandated by G.L. c.278A, §16(a).” At the outset of its discussion, the SJC stated, “The importance of properly storing exhibits cannot be overstated. Without exhibit preservation, innocent people convicted of crimes may linger in prison for decades because they are unable to perform forensic tests through existing or emerging technologies. And with respect to those guilty of criminal offenses whose convictions are overturned or for whom the jury were unable to reach a verdict, the loss of exhibits or the compromising of the chain of custody might prevent re-prosecution.” The [SJC] noted that “[a] hodgepodge of statutes and rules governs the retention in Superior Court cases of non-documentary exhibits…. This framework makes clerks’ offices responsible for exhibits unless a judge orders otherwise.” Of particular importance is “the evidence preservation statute, G.L. c.278A, §16(a), [which] requires governmental entities ‘in possession of evidence or biological material’ related to the investigation of a crime of which someone was convicted to ‘retain such evidence or biological material for the period of time that a person remains in the custody of the commonwealth or under parole or probation supervision in connection with that crime….’ This retention requirement applies to clerks’ offices once an exhibit is admitted in evidence, at which point the evidence is in the clerk’s possession.” “That being said, the retention requirement is not absolute: ‘The evidence or biological material need not be preserved if it is … of such a size, bulk or physical character as to render retention impracticable.’ G.L. c.278A, §16(a). Continue reading →

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supreme-court-1-1224507In Nieves v. Bartlett, the United States Supreme Court ruled, in the context of a civil suit pursuant to 42 U.S.C. §1983, that “probable cause to make an arrest defeats a claim that the arrest was in retaliation for speech protected by the First Amendment.”

The background was as follows. “Respondent Russell Bartlett sued petitioners — two police officers — alleging that they retaliated against him for his protected First Amendment speech by arresting him for disorderly conduct and resisting arrest.” “Bartlett was arrested [by Sergeant Nieves and Trooper Weight] during ‘Arctic Man,’ a weeklong winter sports festival held in” Alaska and “known for both extreme sports and extreme alcohol consumption.” Nieves was the first of the officers to encounter Bartlett. “Nieves was asking some partygoers to move their beer keg inside their RV…. According to Nieves, Bartlett began belligerently yelling to the RV owners that they should not speak with the police…. Bartlett was highly intoxicated and yelled at [Nieves] to leave…. Several minutes later, Bartlett saw Trooper Weight asking a minor whether he and his underage friends had been drinking. According to Weight, Bartlett approached in an aggressive manner, stood between Weight and the teenager, and yelled with slurred speech that Weight should not speak with the minor. Weight claims that Bartlett then stepped very close to him in a combative way, so Weight pushed him back. Sergeant Nieves saw the confrontation and rushed over, arriving right after Weight pushed Bartlett. Nieves immediately initiated an arrest, and when Bartlett was slow to comply with his orders, the officers forced him to the ground.” Bartlett was charged with disorderly conduct and resisting arrest, but the State ultimately dismissed the charges. “Bartlett then sued the officers under 42 U.S.C. §1983, which provides a cause of action for state deprivations of federal rights…. [H]e claimed that the officers violated his First Amendment rights by arresting him in retaliation for his speech. The protected speech, according to Bartlett, was his refusal to speak with Nieves earlier in the evening and his intervention in Weight’s discussion with the underage partygoer. The officers responded that they arrested Bartlett because he interfered with an investigation and initiated a physical confrontation with Weight. The [federal] District Court granted summary judgment for the officers…. The Ninth Circuit disagreed” and the officers sought certiorari. Continue reading →

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jail-1211438-200x300In Commonwealth v. Garcia, the Supreme Judicial Court declined to apply the principles regarding sentencing of juvenile murderers set forth in Miller v. Alabama, 567 U.S. 460 (2012), and Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655 (2013) (Diatchenko I) to the defendant, who committed first degree murder when he was nineteen years old and was sentenced to life imprisonment without the possibility of parole.

The background was as follows. “In July 2010, the fifteen year old daughter of the murder victim … was dating the defendant, who was nineteen.” The daughter lived with the victim and other family members. “At night on July 29, the daughter sent a text message to the defendant stating that their relationship was over.” The next morning, the defendant broke into the victim’s home and stabbed her to death. At trial, the defense conceded that the defendant killed the victim, but argued “that the evidence … show[ed] [that] the defendant was guilty of manslaughter rather than murder…. The defendant presented one witness: an expert who testified about, among other things, brain development of teenagers.” The jury convicted the defendant of first degree murder. “The judge sentenced the defendant to life in prison without the possibility of parole.” On appeal, “[t]he defendant argue[d] … that mandatory sentences of life in prison without the possibility of parole are unconstitutional as applied to defendants who committed murder in the first degree when they were teenagers or in their early twenties.” He contended that “[b]ecause [he] was nineteen years old at the time of his crime[], … his sentence violates the prohibition on ‘cruel and unusual punishments’ under the Eighth and Fourteenth Amendments” and art. 26 of the Massachusetts Declaration of Rights. Continue reading →

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gun-1623761-300x202In Commonwealth v. Rodriguez, the Supreme Judicial Court responded to a reported question in relation G.L. c.269, §10(m), ruling that a defendant who has been convicted of possession of a large capacity feeding device, in violation of this statute, may lawfully be sentenced to State prison for not less than one year nor more than two and one-half years, and is not subject to a mandatory minimum sentence of two and one half years.

The background was as follows. “The defendant pleaded guilty to possession of a large capacity feeding device, in violation of G.L. c.269, §10(m), as well as [other firearm] offenses…. [T]he defendant was sentenced, over the Commonwealth’s objection, to a term of from one to two and one-half years’ imprisonment…. In a motion for reconsideration, the Commonwealth sought a sentence of at least two and one-half years. The judge then reported the following question …: May a defendant who has been convicted of possession of a large capacity feeding device, in violation of [G.L. c.269, §10(m)], lawfully be sentenced to State [p]rison for not less than one year nor more than two and one-half years?’”

The SJC answered the reported question in the affirmative. The Court set forth the relevant portions of the statute as follows: “‘[A]ny person not exempted by statute who knowingly has in his possession, or knowingly has under his control in a vehicle, a large capacity weapon or large capacity feeding device therefor who does not possess a valid Class A or Class B license to carry firearms … shall be punished by imprisonment in a [S]tate prison for not less than two and one- half years nor more than ten years…. [A]ny … person charged with violating this paragraph and holding a valid firearm identification card shall not be subject to any mandatory minimum sentence imposed by this paragraph. The sentence imposed upon such person shall not be reduced to less than one year, nor suspended, nor shall any person convicted under this subsection be eligible for probation, parole, furlough, work release or receive any deduction from his sentence for good conduct until he shall have served such minimum term of such sentence.’” Continue reading →

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black-car-1450351-300x200In Commonwealth v. Zagwyn, the Supreme Judicial Court reversed the defendant’s conviction of negligent operation of a motor vehicle under G.L. c.90, §24(2)(a), on the grounds that the evidence was insufficient to support the conviction.

The background was as follows. A police “officer stopped the defendant’s motor vehicle after observing that one of the vehicle’s headlights and a rear license plate light were not working. He followed the vehicle for approximately one to one and one-half miles before stopping the vehicle, and during that time he did not observe the vehicle speeding, swerving, or making any sudden stops. When the officer initiated the stop, the defendant moved the vehicle to a safe location. The stop itself revealed evidence that the defendant was operating the vehicle while under the influence of alcohol.” The defendant was convicted of negligent operation of a motor vehicle and a related offense. Continue reading →

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In a recentquestions-1308019-267x300 decision, Commonwealth v. Espinal, the Supreme Judicial Court affirmed the defendant’s conviction of indecent assault and battery on a child under the age of fourteen, ruling that in the circumstances of this case, the judge did not abuse his discretion in “denying [the defendant’s] request that a question be posed collectively to potential jurors about bias toward non-English speakers.” However, the Court urged judges to be responsive to such requests in appropriate circumstances in the future.

The background was as follows. The twelve year old complainant alleged that the defendant, her babysitter’s boyfriend, forced her to drink wine and “‘sucked [her] tongue’ with his mouth.” The complainant told her father about the incident and he testified as the first complaint witness at the defendant’s trial. “Throughout trial, the defendant required the use of a Spanish-speaking interpreter. Before trial, the defendant submitted a written request that” the judge ask the venire, “‘Do you have any problem with a defendant that requires the services of a Spanish-speaking interpreter?’” Defense counsel stated that the reason for the request was “concern [about] racial bias, or some sort of ethnic bias. There’s a lot of people that believe that if you’re in this country and you don’t speak English, that you’ve done something wrong, period.” Upon inquiry by the judge, defense counsel indicated that the defendant and the complainant had a common ethnicity (Hispanic). The judge then denied the defendant’s request. On appeal, the defendant challenged the judge’s refusal to pose the requested question to the venire.

In its decision, the SJC stated, “The record on appeal contains a significant number of studies that indicate disparities in rates of conviction and the severity of sentences imposed between defendants who used interpreters and those who did not. Given these disparities, we recognize the importance, in appropriate circumstances, of questioning the venire, at least collectively, concerning language-related bias.” The Court noted, however, that “[t]he surveys and studies that the defendant proffers on appeal were not before the trial judge. Nor did the defendant draw the judge’s attention to any cases that recognized language-related bias…. Rather, counsel relied on her assertion that” many people “‘believe that if … you don’t speak English, … you’ve done something wrong….’ A defendant’s ‘bare allegation’ that there exists a ‘widespread belief’ that could result in bias is not sufficient to cause us to conclude that the judge abused his discretion by declining to conduct voir dire on the issue. See Commonwealth v. Sheline, 391 Mass. 279, 290-291 (1984).” “Going forward, however, we anticipate that where a defendant is entitled to the services of a translator because of an inability to speak English, the judge will, on request, ordinarily pose a question to the venire regarding language-related bias.”

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