Published on:

gavel-1238036According to a recent article on Masslive.com, the Massachusetts Sentencing Commission recently held a public hearing on the possibility of changing state sentencing guidelines. The hearing addressed a number of sentencing related topics, including whether Massachusetts should impose a period of mandatory supervised release on all individuals who are released from jail.

Advocates against the imposition of a such a release argued that it would be setting these released individuals up for failure because sufficient services necessary to help inmates return to society simply do not exist. The chief counsel of the public defenders specifically told the sentencing commission that mandatory supervised release would not work unless the infrastructure and services to help people succeed were put in place.

Although state policy makers have had discussions about abolishing mandatory minimum sentences for non-violent drug offenses, the sentencing commission is considering significantly broader changes to sentencing guidelines that could include both changing mandatory minimums, as well as a wide range of other modifications. Examples of the changes being considered include:

  • instructing judges who must determine a sentence not to consider past convictions if a person has gone for eight or 10 years since the end of their last sentence without a new conviction
  • adopting guidelines telling judges not to consider misdemeanors committed by juveniles as part of the criminal history used to determine an adult sentence
  • creating an offense level of zero in the sentencing guidelines – essentially, labeling something a crime but not recommending a sentence of incarceration, probation or fines
  • limiting the length of probation supervision and the length of sentences for probation violations
  • creating a “safety valve” where a defendant is facing a mandatory minimum sentence which would allow a judge to can give someone a sentence that is below the mandatory minimum under certain circumstances

Continue reading →

Published on:

black-car-1450351The Supreme Judicial Court recently issued a decision – Commonwealth v. Campbell – affirming the allowance of the defendant’s motion to suppress on the ground that his operation of the vehicle, which had been rented by his mother, did not constitute use without authority under G. L. c. 90, § 24(2)(a), and therefore the police had no lawful basis to seize the vehicle and conduct an inventory search.

The basic facts were as follows. A state trooper “stopped [the] vehicle … for failing to stop at a stop sign. The trooper determined that the vehicle had been rented by the defendant’s mother, who has a last name that is different from the defendant’s. Upon request, the defendant provided [the trooper] with a valid driver’s license and the rental agreement. The agreement listed only the mother as the renter and stated, ‘[N]o other drivers permitted.’ [The trooper] concluded that the defendant was using the vehicle without authority, in violation of G.L. c.90, §24(2)(a), which makes it illegal to ‘use[] a motor vehicle without authority knowing that such use is unauthorized.’ Accordingly, [the trooper] decided to impound the vehicle. During an inventory search in preparation for impoundment, a loaded handgun and a box of ammunition were seized from the vehicle.” There was evidence that “upon learning of the seizures, the defendant made incriminating statements to [the] police.” After he was charged with firearm and other offenses, the defendant moved successfully to suppress the physical evidence and his statements. Continue reading →

Published on:

hair-1481587The Appeals Court recently issued a decision – Thompson v. Civil Service Commission – finding that the Boston Police Department’s drug screening method for screening its officers is flawed.

The background of the case is as follows: the collective bargaining agreement between the Boston police officers’ union and the Boston Police Department provides for annual hair testing for drugs as part of the department’s substance abuse policy. The portion of the agreement that specifically pertains to the testing states that “sworn personnel of the Boston Police Department will be tested for drugs and/or alcohol under the following circumstances…the parties agree that all sworn personnel shall be subject to an annual drug test to be conducted through a fair, reasonable, and objective hair analysis testing system.” The agreement goes on to state that an employee “will be subject to termination” for a positive test result…” The plaintiffs in the case are a total of ten officers who submitted hair samples, tested positive for cocaine, and were terminated as a result. The union then filed suit on behalf of the officers to appeal their terminations and the case ultimately ended up before the Appeals Court.

In reviewing the case, the Appeals Court found that the Boston Police Department’s use of officers’ hair samples in drug screening is scientifically unreliable and reinstated six of the ten officers with back pay and benefits. In its decision, the Appeals Court conducted an inquiry into the scientific reliability of the hair test and found that a positive test result was not conclusive on the question of voluntary drug ingestion.  It further found that a positive result may in fact be due to contamination from environmental exposure as opposed to drug use by the officer. The Court specifically held that the risk of a false positive was significant enough to require additional evidence prior to terminating an officer for drug use. In terms of six of the officers who had been terminated as a result of the positive test results, the Appeals Court found that the additional evidence presented by the officers outweighed the results of the hair test.   Continue reading →

Published on:

injection-1422245According to an article in the MetroWest Daily News, a man and woman reportedly broke into a home in Framingham this past week. The article states that police were dispatched to the home at around 12:45pm for a report of “suspicious people.” It is unclear who made the report or what the basis for the conclusion that the people were suspicious was. When the police arrived, the door to the basement was reportedly forced open and the man and woman were on the second floor of the home. The man was in a closet and was found with syringes and a bloody needle. The man told the police that a friend had let them enter the home, but according to the police, no one with the name provided by the man lived at that address. The police arrested the man and woman and charged them with: (1) breaking and entering with the daytime with the intent to commit a felony; and (2) malicious destruction of property.

For the Commonwealth to obtain convictions against the defendants for breaking and entering in the daytime with the intent to commit a felony under G. L. c. 266, § 18, it would have to prove the following beyond a reasonable doubt: (1) that the defendants broke into a building belonging to another person; (2) that the defendants entered that building; and (3) that the defendants did so with the intent to commit a felony in that building. As to the third element of the offense, the Commonwealth must prove that the defendants intended to commit a felony at the time they broke into and entered the building.

For the Commonwealth to obtain convictions for malicious destruction of property under G. L. c. 266, § 127, it would have to prove the following beyond a reasonable doubt: (1) that the defendants injured or destroyed the building of another; (2) that the defendants did so willfully; and (3) that the defendants did so with malice. As to the second element, an act is “willful” if it is done intentionally and by design, in contrast to an act which is done thoughtlessly or accidentally. A person acts willfully if s/he intends both the conduct and its harmful consequences. As to the third element, an act is done with “malice” if it is done out of cruelty, hostility or revenge. To act with malice, one must act not only deliberately, but out of hostility toward the owner of the property. This does not require that the person committing this offense knew the identity of the owner, but it does require that defendant was hostile toward the owner, whoever that was. Continue reading →

Published on:

gavel-1238036The Supreme Judicial Court recently issued two decisions – Commonwealth v. Teixeira and Commonwealth v. Meade – that will have a significant impact on the discovery process in certain criminal cases going forward.

There are two types of cases in Massachusetts – misdemeanors and felonies. Massachusetts District Courts and the Boston Municipal Court have jurisdiction over all misdemeanors and less serious felonies (i.e., all felonies which carry a house of correction sentencing alternative). The Superior Court has jurisdiction over all other felonies (i.e., felonies which carry only state prison as potential sentence). Despite the fact that the District Court lacks jurisdiction over certain felonies, all cases, no matter how serious, start out in the District Court with an arraignment. If the charge is one of the felonies that only the Superior Court has jurisdiction over, the Commonwealth must decide whether it wants to take the case to the Superior Court, or if it wants to break the case down to a misdemeanor or less serious felony over which the District Court has jurisdiction.

If the Commonwealth decides that it wants the case to be heard in the Superior Court, it must present the case to the grand jury to make a determination that there is in fact probable cause to issue a charge in Superior Court (called an indictment). Under Rule 3 of the Massachusetts Rules of Criminal Procedure, a defendant is entitled to a probable cause hearing in the District Court until the case has been presented to the grand jury, and the grand jury has voted and found probable cause to issue the indictment. It can take several months for the Commonwealth to indict a case, during which the case remains in District Court. Although the case is scheduled for a probable cause hearing in District Court pending the indictment, probable cause hearings are extremely rare in practice – typically, the Commonwealth states its intent to indict and asks the District Court judge to continue the case for a further probable cause hearing. The case generally gets continued until the case is indicted, at which point the need for a probable cause hearing is obviated.

Naturally, defense attorneys object to these continuances. While the ability to proceed with the case and obtain discovery is hampered by the Commonwealth’s repeated requests for continuances, good defense attorneys file motions for such discovery while the case is pending in the District Court and awaiting indictment. This is so that they can begin to investigate a case and start to build a defense. The Commonwealth typically objects to such orders to produce discovery on the ground that the District Court does not have jurisdiction over the case, and therefore the District Court judge lacks jurisdiction to issue such an order. Continue reading →

Published on:

glasgow-police-1241195According to a recent article in The Patriot Ledger, proof of major errors made in the Braintree Police Department’s evidence room is continuing to mount. The article states that a recently released audit of the department’s evidence room indicated that thousands of items have gone missing, or are unaccounted for. Such items include drugs, money, and guns, all seized in relation to criminal cases. The audit also indicates that the evidence room’s record keeping was unquestionably sub-par.

Problems related to the keeping of the evidence have already resulted in the dismissal of a number of Braintree cases and the article states that hundreds of additional cases may have been similarly compromised. Specifically, the article states that 4,709 pieces of drug related evidence “could not be accounted for” and that “38 pieces had been compromised” – the audit found that the 38 items were “opened, left unpackaged, or found to have items missing.” The article further noted that “much of the missing drugs” were “bags of cocaine.”

In addition to the missing drug related evidence, the article states that the audit found that 2,490 pieces of property evidence was found to be missing. Additionally, the audit found that various videos being stored in the evidence room were unlabeled, which will lead to significant practical challenges in connecting such videos to specific cases, not to mention evidentiary challenges in terms of documenting chain of custody and authenticity. The article also notes that the test kits from sexual assault cases were stored outside the police station in a trailer, again raising questions as to chain of custody issues and whether such evidence can be successfully linked to a specific case.

The audit also found that approximately $400,000 in seized money was missing and that some of the bags containing such money were “ripped open in the back or cut open at the bottom, with cash missing.” The article states that the audit found that much of the missing money came from cases brought in 2001, 2002, 2012 and 2013, noting that the audit lists $82,074.96 missing from 2001.

Continue reading →

Published on:

booze-1481628The Supreme Judicial Court recently issued a decision in a case addressed in this blog earlier this year: Commonwealth v. Neary-French. In its decision, the SJC held that a defendant does not have a right to counsel under the Sixth and Fourteenth Amendments to the United States Constitution, or art. 12 of the Massachusetts Declaration of rights, before the defendant decides whether to take a breathalyzer test.

The legal and factual backgrounds are as follows. In 1989, the SJC issued a decision in Commonwealth v. Brazelton, 404 Mass. 783, 785 (1989) dealing with the same issues raised by Neary-French in this case. In Brazelton, the SJC ruled that the defendant had no right to counsel before deciding whether to take a breathalyzer test. Subsequently, in 2003, the Legislature amended the OUI statute (G. L. c. 90, §24). The amendment makes it “a violation to operate a motor vehicle not only under the influence of intoxicating liquor, but also with a blood alcohol level of .08 or more.” This rule is known as a ‘per se’ violation.” In other words, even if the defendant is driving perfectly, he or she may still be guilty of operating under the influence if his or her blood alcohol level is .08 or more.

Neary-French was arrested for operating while under the influence of intoxicating liquor and was not given an opportunity to consult with counsel before having to decide whether to submit to a breathalyzer test. The defendant filed a motion to suppress the results of the breathalyzer test [which indicated that her blood alcohol level was greater than .08], arguing that she had a [constitutional] right to counsel … before deciding whether to submit to [such] a … test.” After an evidentiary hearing on the motion, the judge reported the following question of law to the SJC: “‘Whether the 2003 amendment to G. L. c.90, §24, which created a new “.08 or greater” theory by which to prove an [operating while under the influence of intoxicating liquor] offense, where a breath test reading of .08 or greater is an element of the offense, now makes the decision by a defendant whether or not to take the breath test itself a critical stage of the criminal proceedings requiring that the defendant be advised of their right to counsel prior to making that decision, pursuant to art. 12 of the Massachusetts Declaration of Rights and the Sixth and Fourteenth Amendments of the United States Constitution.’” Continue reading →

Published on:

passport-1519050Last month, the Supreme Judicial Court issued a decision addressing judicial notice of immigration consequences to non-citizens who plead guilty to a criminal case. The case – Commonwealth v. Valdez – reverses the denial of the defendant’s motion for a new trial where the judge who conducted the defendant’s plea colloquy had failed to advise the defendant, as required by G. L. c. 278, §29D, “that conviction may have the consequence of exclusion from admission to the United States.” In so ruling, the SJC (1) clarified “what [a] defendant must show to establish that his conviction ‘may have’ the consequence of exclusion from admission to the United States”; and (2) determined that the defendant here had met that burden.

The background was as follows. “The defendant was born in the Dominican Republic and is a citizen of that country. In 1985, he was admitted to the United States as a lawful permanent resident alien.” In 1989, he pleaded guilty to an indictment alleging larceny of a motor vehicle and was sentenced to a prison term of five years at MCI-Concord. “The defendant is now a resident of Connecticut and owns his own business selling automobiles. Since 1997, he has been in a relationship with a citizen of the United States, with whom he has three children. No immigration proceedings have been commenced against the defendant by Federal authorities.” In 2013, the defendant — wishing to travel to the Dominican Republic and fearing that he might not be able to reenter the United States — retained an immigration attorney. On the basis of the attorney’s advice that the defendant’s conviction would result in removal proceedings against him if he were to leave the United States and then seek to reenter, the defendant moved to withdraw his guilty plea and vacate his conviction. His motion was predicated on the judge’s acceptance of his plea without having advised him that his conviction “may have [the] consequence[] of … exclusion from admission to the United States,” as required by c.278, §29D. The motion judge agreed that the defendant had not been adequately advised in his plea colloquy, but “nonetheless denied the motion because, citing Commonwealth v. Grannum, 457 Mass. 128 (2010), she found that the defendant ‘ha[d] not established that he would be subject to an express written policy of exclusion should he choose to leave the United States and desire to re-enter,’ and therefore ‘ha[d] shown no more than a hypothetical risk’ of exclusion.”

Continue reading →

Published on:

White wine bottle in an ice bucket, macro close up with copy space

White wine bottle in an ice bucket, macro close up with copy space

According to an article in the MetroWest Daily News, a Framingham woman who was recently arrested for operating under the influence sang to the officers that arrested her. The article states that the police reportedly found the woman sleeping in her parked car on Concord Road at 2:45am. The article describes the car as “partially obstructing traffic” and states that it was in a parking spot, but hanging out into the street by “several feet.” The police apparently knocked on the car’s windows in an attempt to rouse the woman but were unsuccessful. The police then opened the car doors and yelled at the woman to wake her up. When she did awaken, she began singing to the officers and reportedly made several sexual gestures. One of the officers asked the woman if she had taken any drugs to which she responded “I don’t know what I took, but I took something.” She also admitted to having between eight and twelve glasses of wine. It is unclear when she may have taken any substances, and/or when she drank the wine. The officers also had her perform some field sobriety tests. Although the article states that the woman reportedly failed the tests, there is no further information as to what tasks she may have performed incorrectly. The police ultimately charged the woman with driving under the influence under  G. L. c. 90, § 24, and civilly cited her for obstructing traffic.

For the Commonwealth to obtain a conviction against the woman for this offense, it would have to prove the following beyond a reasonable doubt: (1) that the defendant operated a motor vehicle; (2) that she did so on a public way; (3) that while operating the vehicle, the defendant was under the influence of intoxicating liquor. As to the first element, a person “operates” a motor vehicle not only while doing all of the well-known things that drivers do as they travel on a street or highway, but also when doing any act which directly tends to set the vehicle in motion. The law is that a person is “operating” a motor vehicle whenever he or she is in the vehicle and intentionally manipulates some mechanical or electrical part of the vehicle — like the gear shift or the ignition — which, alone or in sequence, will set the vehicle in motion. Continue reading →

Published on:

OLYMPUS DIGITAL CAMERA

OLYMPUS DIGITAL CAMERA

According to an article in the MetroWest Daily News, a man involved in a car crash on Route 9 in Southborough fled the scene after he was pulled out of his smoking car. The article states that the driver rolled his car during the course of the accident and that it was resting on its side when others arrived on the scene. The passersby noticed that the car was smoking and worked together to pull the man out, breaking windows in the car to do so. When they pulled the driver out, they noticed that he was unsteady and possibly drunk. One of the passersby stated that the driver stumbled and nearly vomited after being taken from the car. He further stated that driver did not seem not understand what his rescuers were trying to do, even though his car was filling with smoke. Following the rescue, the driver reportedly “took off running into the swamp.” Police searched for the man and eventually apprehended him.

Although it’s unclear what charges will issue against the driver, it is likely that the police will seek a complaint for operating under the influence, under G. L. c. 90, § 24 given the description provided by the other individuals at the scene. For the Commonwealth to obtain a conviction against a person for this offense, it would have to prove the following beyond a reasonable doubt: (1) that the defendant operated a motor vehicle; (2) that he did so on a public way; (3) that while operating the vehicle, the defendant was under the influence of intoxicating liquor. Continue reading →