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american-flag-series-1-1466783-300x225The Supreme Judicial Court recently issued an important decision related to the Valor Act. In the decision, Commonwealth v. Morgan, the SJC ruled that “the pretrial diversion statute [G.L. c.276A], as amended by the VALOR Act in 2012, permits a judge to continue without a finding (CWOF) or to dismiss a charge of operating a motor vehicle while under the influence of alcohol or drugs (OUI), second or subsequent offense, notwithstanding the provisions of G.L. c.90, §24, which generally proscribe such dispositions.”

The background was as follows. “The VALOR Act, St.2012, c.108, …  , amended the statute providing young adults with pretrial diversion, … c. 276A …, to include qualifying veterans and active duty members of our armed forces facing criminal charges in the District and Boston Municipal Courts.” The defendant, a veteran of the United States Army, served in Iraq and Afghanistan. While serving, “he began to experience symptoms of posttraumatic stress disorder (PTSD)…. He also had numerous physical disabilities as the result of injuries received during his” military service. After he returned to civilian life, “the defendant was stopped for erratic driving” and was arrested for operating his vehicle while under the influence of alcohol. “[N]ine years and ten months prior to [that] incident …, [the defendant] admitted to sufficient facts to warrant a finding that he had operated a motor vehicle while under the influence of alcohol or drugs…. [That] case was continued without a finding and dismissed upon [the defendant’s] successful completion of probation.” In light of the prior OUI case, the defendant was arraigned in the District Court in the present case on a charge of OUI, second offense. His attorney “sought pretrial diversion under the VALOR Act. [The defendant] was evaluated by the VA, which determined that he would benefit from such a program.” He began receiving various rehabilitative services, including detoxification, counselling regarding substance abuse, and PTSD counselling. “Three months after arraignment, … [the defendant] filed a motion, pursuant to the pretrial diversion statute, seeking dismissal of all charges should the pretrial diversion program prove successful. In the alternative, he sought to admit to sufficient facts and have the case continued without a finding. “Acknowledging that the case presented an unsettled question of law, the judge reported the following two questions …, pursuant to Mass. R. Crim. P. 34 …: [1] ‘Under the VALOR Act, may a judge exercise discretion to enter a CWOF after an admission to an OUI-second offense?’[;] [2] ‘If a CWOF is not available, may a court dismiss the charge upon successful completion of diversion, over the Commonwealth’s objection?’” Continue reading →

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in-the-lab-1-1251082-300x249A recent article at addresses damning information about the Massachusetts state prosecutors’ failure to properly handle the drug scandals that have rocked Massachusetts over the past several years. Massachusetts has been the site of two of the country’s largest drug laboratory scandals which occurred as the result of egregious misconduct by two seprate state lab employees – Annie Dookhan and Sonja Farak. Their misconduct led to thousands of convictions based on faulty evidence.

According to the article, “prosecutors have badly botched the state’s response,” which has caused substantial delays in justice for defendants who may have been wrongly convicted of drug crimes based on tainted evidence.

In addition to the fact that some district attorneys dragged their feet when asked to identify possible Dookhan defendants and fought procedures to address the potential wrongful convictions in court, the article addresses misconduct by the Massachusetts Attorney General’s Office in their investigation of the Farak scandal.

The AGO began prosecuting Farak in early 2013. In the course of the prosecution, the office needed to determine how many cases had been impacted by Farak’s misconduct. Because Farak’s misconduct involved the theft and use of the drugs that she was testing, the time frame encompassed by her drug addiction was extremely important – any case that she touched during this time period would be suspect. The Slate article points out that if Farak used drugs for just a few months, she might have tainted just a few cases. If she used drugs for years, she might have tainted thousands.

In briefs recently submitted to the SJC, the Innocence Project, the ACLU of Massachusetts, and the New England Innocence Project, the AGO’s utter failure in fulfilling its investigative, ethical, and prosecutorial responsibilities was revealed.

According to the article, the briefs state that a state police officer found Farak’s handwritten worksheet from a drug treatment program, in which she admitted to drug use at work. In February 2013 the officer emailed the AGO’s lead prosecutor about this discovery. Despite clear evidence of Farak’s drug use, the AGO did not provide this evidence to defendants, or to district attorneys who were prosecuting people based on Farak’s tainted work, despite the fact that it was a plain breach of their ethical obligations to do so. Continue reading →

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gun-1623761-300x202In a recent decision, Commonweath v. Edwards, the SJC ruled that the trial court judge should not have allowed the defendant’s motion to suppress a firearm recovered following a search of the defendant’s car by Boston police officers.

The basic facts were as follows. At 1:30 a.m. of the date in question, “the Boston police received a 911 call. The caller identified himself by name, Jabari Wattley, and told the operator that he could see a man standing in the street holding a gun. Wattley further stated that he had seen the man drive off in a black … motor vehicle, return and park on Armandine Street …, get out of the vehicle holding a gun in his hand, and then get back into the vehicle. [Wattley] informed the operator that he knew the man, identified him as the defendant, Joshua Edwards, and said that Edwards was not threatening anyone. The police dispatcher broadcast [Wattley’s] information as a ‘Priority 1’ call,” “‘mean[ing] that it was of a serious nature and that response time and protecting officer safety were both high priorities.’” A short time after the broadcast, a marked cruiser driven by Officer Lanteigne arrived on Armandine Street, an area known by the officer to be in a high crime area. “The cruiser did not have its emergency lights activated. Lanteigne stopped when a man (later identified as Wattley) ran … toward the cruiser and began ‘yelling’ to Lanteigne and pointing at a black Acura motor vehicle that was [legally] parked twenty to thirty feet in front of the cruiser, on the right hand side of the street. The Acura … was completely dark; no interior or external lights were on…. At that point, Lanteigne observed the Acura’s brake lights illuminate, and Wattley yelled something to the effect of, ‘That’s him. That’s the guy, he’s about to drive away.’”

In response, Lanteigne activated the cruiser’s emergency lights “and moved the cruiser alongside the driver’s side of the Acura in order to block the vehicle from leaving. Lanteigne believed ‘the Acura was about to drive away … [and] understood that the person Wattley had seen with a handgun was driving the Acura.’ Lanteigne got out of the cruiser and removed his firearm from its holster. At the same time, the defendant got out of the Acura and closed the door. He ‘appeared to take no notice of and pay no attention to’ Lanteigne, and started to walk away. Lanteigne responded by running to the front of his cruiser and ordering the defendant to stop. When the defendant turned and started walking away quickly, the officer … pushed the defendant against the rear of the Acura, forced him to the ground when he resisted being pushed, and handcuffed him. Another police officer who had responded to the scene stood immediately next to the closed driver’s side door of the Acura, and leaned toward the window. He observed a firearm lying on the floor by the driver’s seat…. The police determined that the defendant did not have a Massachusetts driver’s license, and that he was not the registered owner of the Acura. The police decided to tow the vehicle,” in preparation for which “the vehicle was searched pursuant to an inventory policy. In addition to the firearm, the police found an open bottle of beer [and] a cup containing what appeared to be an alcoholic beverage in the console next to the driver’s seat.”

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balance-1172800-300x204The Supreme Judicial Court issued a recent decision, Bridgeman v. District Attorney for the Suffolk District, addressing cases impacted by the Annie Dookhan scandal. In its decision, the SJC announced a new protocol to address the unresolved drug cases that may have been affected by Dookhan’s misconduct.

The Court described the history of this matter as follows. “In Bridgeman v. District Attorney for the Suffolk Dist., 471 Mass. 465, 487 (2015) (Bridgeman I), the petitioners and the intervener, the Committee for Public Counsel Services (CPCS), asked that we exercise our broad powers of superintendence to vacate the thousands of drug convictions affected by Dookhan’s misconduct because the time and expense of case-by-case adjudication had become ‘untenable.’ We declined at that time to adopt their proposed ‘global remedy.’ However, the district attorneys have now provided the single justice with lists identifying more than 20,000 defendants who could be eligible for relief based on Dookhan’s misconduct but who have not yet sought relief from their drug convictions.” (Regarding the causes of the latter circumstance, the Court asserted that the notification letter sent to the relevant Dookhan defendants “by the district attorneys was wholly inadequate to provide the … defendants with the information necessary to knowingly and voluntarily decide whether they should explore with counsel the possibility of withdrawing their plea or moving for a new trial.”) “As a result of the number of potentially aggrieved defendants, the single justice issued a reservation and report to the full court that essentially invites us to reconsider whether the time has come for a global remedy or whether further steps must be taken to realistically implement the remedy of case-by-case adjudication of potentially thousands of motions for a new trial. After such reconsideration, we decline to adopt the district attorneys’ argument that we should stay the course we had previously set and take no further action to protect the rights of the ‘relevant Dookhan defendants.’ We also decline to adopt the petitioners’ request for a global remedy in which we would either vacate the convictions of all relevant Dookhan defendants with prejudice, and thereby bar any reprosecution, or vacate the convictions without prejudice, and allow the Commonwealth one year to reprosecute, dismissing with prejudice all cases not reprosecuted within that time period. We instead adopt a new protocol for case-by-case adjudication, which will occur in three phases, and order its implementation by the single justice in the form of a declaratory judgment.” Continue reading →

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hospital-1244754-300x201The Supreme Judicial Court issued a recent decision – Commonwealth v. Accime – bearing directly on the intersection of criminal law and mental health law.

The background was as follows. “[T]he defendant was brought by ambulance and against his will to the [psychiatric area of a hospital’s] emergency department,” where he was detained in a small room. “Although this detention was purportedly pursuant to G. L. c.123, §12, which allows the temporary restraint and hospitalization of persons posing a serious risk of harm by reason of mental illness,” there was “no evidence [at trial] of compliance with the procedures required by § 12(a).” When medical staff in the emergency department told the defendant that “he would likely be held in the hospital for two or three days, the defendant began to shout” that he did not want to be medicated and that he wanted to leave. The staff requested assistance and five security officers arrived. They told the defendant that he would be pepper sprayed if he did not permit medical personnel to medicate him. The defendant, who was six feet, four inches in height and weighed about 270 pounds, responded, “‘[I]f anybody puts their hands on me, I’m going to fuck them up’; and ‘if anybody pepper sprays me I’m going to beat the fuck out of them.’…. Other patients were ‘looking on’; as a precautionary measure, officers directed anyone in the hallway to an alternate route ‘just in case something happened if [the confrontation] spilled out’ of the room.” At some point, as “officers … approached the defendant, [he] ‘put his hands out like he wanted to fight.’ At least three, and as many as six, officers then directed pepper spray at the defendant’s head and face,” thereby subduing him so he could be handcuffed. “There was no evidence … that any aspect of the disturbance … ever extended beyond the confines of the room.”

The defendant was convicted of disorderly conduct under G. L. c.272, § 53. A conviction under the statute “requires proof that a person, ‘with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof,’ engage[d] in ‘fighting or threatening, or in violent or tumultuous behavior’…. Commonwealth v. Sholley, 432 Mass. 721, 727 n.7 (2000), cert. denied, 532 U.S. 980 (2001), quoting Model Penal Code §250.2 (Official Draft and Revised Comments, 1980).” Continue reading →

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gun-1517016-300x225In a recent decision, Commonwealth v. Thomas, the Supreme Judicial Court made several important pronouncements in reference to its decision in Commonwealth v. Silva-Santiago, 453 Mass. 782 (2009), and subsequent developments.

The background was as follows. The defendant and a woman named Johnson were passengers in a vehicle driven by Johnson’s cousin, Humphrey-Frazer. As the vehicle approached a group of people standing in front of a house, “[t]he defendant leaned out of the rear driver’s side window and fired” several shots toward the group. “The defendant’s gunshots were met by return fire; a bullet penetrated a window of the vehicle and struck Humphrey-Frazer in the head, killing him.” During the police investigation of the incident, Johnson told the detectives that she was acquainted with the defendant and “would recognize him if she saw him. The detectives then stopped the interview in order to perform an identification procedure. They presented Johnson with a computer screen that simultaneously displayed photographs of eleven individuals” and asked her if any of the individuals was involved in the incident. Johnson selected the defendant’s image as depicting the person she had observed firing a gun out of the window of the vehicle. Although Johnson said that she had seen the gun, “her description of [it] provided no detail that would suggest that she could identify anything more than its type.” “After the interview [of Johnson], an arrest warrant issued against the defendant.” Subsequently, the police observed the defendant “riding a motorized scooter [after dark] and pursued him, using their lights and sirens in an attempt to cause him to stop. The defendant drove the scooter [on]to a grassy area” and then back onto the street, where he was apprehended. “The next morning, a canine unit from the State police searched the grassy area and found a [loaded] handgun.” Subsequently, the police showed that gun to Johnson who, in response to improperly suggestive questioning by the detectives, asserted that it “‘look[ed] just like’” the weapon fired by the defendant during the incident in which Humphrey-Frazer was killed. The police then made inappropriate confirmatory statements to Johnson regarding her identification of the gun. After the return of indictments against the defendant on various charges, he filed a motion to suppress Johnson’s identification of him (which was denied) and her identification of the gun (which was allowed). The parties cross-appealed from those rulings.

In its decision affirming the denial of the defendant’s motion to suppress Johnson’s identification of him, the SJC made the following two significant rulings. First, the failure by the police to follow the “protocol to be used before a photographic array is provided to an eyewitness,” as set forth in Silva-Santiago, 453 Mass. at 797-798, does not necessarily require suppression of the witness’s identification of the defendant. The Court explained that although “an identification procedure without such a protocol is unnecessarily suggestive,” suppression is required only where the procedure “was so unnecessarily suggestive as to deprive the defendant of due process.” The Court concluded that such suggestiveness was not present here, where, because Johnson knew the defendant from prior interactions, the risk of misidentification was diminished. “[I]n these circumstances,” opined the Court, “the detectives’ failure to follow the [Silva-Santiago] protocol, standing alone, did not warrant suppression of Johnson’s identification of the defendant.” Second, the SJC — noting the disagreement within the scientific community as to whether sequential photographic arrays are superior to simultaneous arrays in identification procedures — declined to state a preference for either one of the methods over the other. In the Court’s view, “the decision whether to use a simultaneous or a sequential procedure is best left to law enforcement, and the choice will continue to bear on the weight of the identification, but not on its admissibility.” Therefore, the Court rejected the defendant’s argument “that the identification procedure [utilized here] was unnecessarily suggestive because the eleven photographs in the array were shown to Johnson simultaneously rather than sequentially.” Continue reading →

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In a recent decision issued by the SJC – Commonwealth v. Horne – the Court precluded “negative profiling” testimony. Specifically the Court held that it was improper to elicit testimony regarding the appearance of drug users, in conjunction with the argument that the defendant did not look like an addict and therefore must be a drug dealer.

The background was as follows. The automobile that the defendant was driving was stopped for a traffic violation. “The officer who conducted the stop … determined that the defendant’s driver’s license had been suspended.” When that officer, joined by another, attempted to arrest the defendant, he “forcefully resisted.” Eventually, the efforts of five officers were required in order to subdue the defendant and place him under arrest. “Thereafter, the arresting officers found nearby a clear plastic bag containing twenty-six individually wrapped ‘rocks’ of crack cocaine, totaling 3.87 grams. The defendant apparently had kept the bag in his boot, which came off during the melee.” An inventory search of the defendant’s vehicle revealed three cellular telephones, eighty-three dollars in cash, and a gun, but no drug paraphernalia. At the defendant’s trial, the Commonwealth’s expert, in addition to testifying about the packaging and valuation of illegal drugs and common practices of drug users and dealers, stated that the majority of crack addicts are “‘somewhat unkempt, very thin, physical appearances seem to be deteriorating, sometimes they’ll have rotted teeth or worn down teeth from constantly grinding their teeth based on the addiction.’” The prosecutor emphasized this testimony in his closing argument, stating “‘How do you know [the defendant] possessed [the crack cocaine] with the intent to distribute it, does he look like a drug addict?…. [C]rack cocaine addicts are skinny, they are thin, they have rotted teeth, they are drawn out. [The defendant is] a big man, he’s a big muscular man…. [The police officers] needed assistance to [subdue] him. He is not a drug addict; he possessed it with the intent to distribute it.’” “On appeal, the defendant argue[d] that it was error to allow [the expert] to testify as to the typical physical characteristics of crack cocaine addicts, maintaining that such testimony was inadmissible negative profiling evidence.” Continue reading →

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police-action-1618280-300x300The Supreme Judicial Court recently issued a decision stating that it is improper for police officers involved in the investigation of a case to be present in the grand jury during the testimony of other witnesses involved in the case. The conviction in the case, however, was not reversed. Rather, the SJC decided that the impropriety did not create a “substantial risk of a miscarriage of justice,” which is the legal standard for an appeal where the defendant’s attorney fails to properly preserve the issue at the trial level, but it is raised on appeal.

The background of the case – Commonwealth v. Holley – was as follows. The defendant was charged with murder. “Two police officers involved in the investigation of [the murder], who were witnesses before the grand jury …, were present in the grand jury room for most, if not all, of the other witnesses’ testimony. Both parties agree that the officers’ presence was improper. The defendant contend[ed] that this error rendered his indictment void ab initio, requiring not only the vacation of his conviction but also the dismissal of the indictment under” state and federal constitutional principles. “Alternatively, the defendant argue[d] that if the indictment was not void, he [wa]s nevertheless entitled to a new trial based on the ineffective assistance of trial counsel, who failed to move to dismiss the indictment or even to raise the issue prior to trial.”

In its decision, the SJC stated that it “disapproved of the presence [in the grand jury room] of ‘unauthorized’ individuals, especially investigating police officers, because their presence has the potential to compromise the integrity of the process by, among other things, influencing witness testimony through intimidation…. Accordingly, we have held that ‘the presence of an unauthorized person before a grand jury will [where sufficient prejudice is shown] void an indictment.’ [Commonwealth v.] Pezzano, [387 Mass. 69,] 72-73 [1982].” In the Court’s view, such an irregularity “does not render [a] defendant’s indictment void ab initio.” The Court opined that in the present case, it was not necessary to void the indictment where “the defendant … failed to show that he was prejudiced by either the grand jury irregularity or his counsel’s failure to raise the issue” prior to trial. The Court noted, among other factors, that “[t]he defendant ha[d] not shown that the presence of the police officers caused those who testified before the grand jury to feel coerced or intimidated.” Continue reading →

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gavel-1238036-300x201In a recent case issued by the Appeals Court – Commonwealth v. Doe – the Court vacated the trial court judge’s order “denying [the defendant’s] petition to seal his criminal record in a case terminated by a nolle prosequi.” A nolle prosequi is a declaration made by a prosecutor in a criminal case stating that the case against the defendant is being dropped. It is essentially an admission that the charges cannot be proved, that evidence has demonstrated either innocence or a fatal flaw in the prosecution’s claim or the district attorney has become convinced the accused is innocent. As grounds to support its decision reversing the denial of the motion to seal, the Appeals Court reasoned that, “in balancing the interests of the public and the defendant, as required by Commonwealth v. Pon, 469 Mass. 296 (2014), the judge may have relied upon a factor that is inconsistent with Pon’s revised standard for discretionary sealing, and may have placed too much importance on another factor that was of limited concern in the circumstances.”

The background was as follows. “Doe was indicted for murder in the first degree in connection with the death of his six month old son,” purportedly due to “shaken baby syndrome.” “[W]hile the case was pending, it was learned that Doe’s wife and her family had a previously unknown history of collagen vascular disease, a genetic condition that was relevant to determining the child’s cause of death. This information was supplied to the prosecution and the medical examiner, who … revised his ruling on the manner of death from ‘homicide’ to ‘could not be determined.’ Shortly thereafter, … the Commonwealth filed a nolle prosequi, stating that it could not ‘meet its burden of proving cause of death beyond a reasonable doubt[.’]” “Doe [then] filed a petition, pursuant to G.L. c.276, §100C, … requesting discretionary sealing of the case record because it impaired his ability to obtain employment.” The judge denied the motion “‘without prejudice to the defendant to renew upon a showing of changed circumstances.’”

In its decision, the Appeals Court discussed the significance of the decision in Pon, which “replaced the stringent standard [for sealing] set forth in Commonwealth v. Doe, 420 Mass. 142, 149-152 (1995), with a new standard more in keeping with the legislative policy reflected in the 2010 revision of the criminal offender record information (CORI) statutory scheme. That policy is to ‘provid[e] the public, and particularly employers and housing providers, with access to certain criminal records in order to make sound decisions while also enabling the sealing of criminal records where so doing would not present public safety concerns.’ Pon, 469 Mass. at 303.” Under Pon, a “judge must balance the public interests at stake against the interests favoring privacy,” in deciding whether there is “good cause” to seal a defendant’s criminal record. Turning to the present case, the Appeals Court “infer[red] that the [judge’s] balancing process was influenced by one or both of two arguments [by the Commonwealth] rooted in circumstances that could change over time: first, that Doe had not applied for work since the nolle prosequi and, hence, could not demonstrate that his record had disadvantaged him in obtaining employment; and second, that it was too early to terminate the public’s access to Doe’s court records, because defense counsel in another shaken baby syndrome case pending in the same county was expected to use evidence in Doe’s case to impeach the credibility of an expert witness common to both cases.” Continue reading →

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money-shot-1559546-300x200In Commonwealth v. Martin, the SJC addressed whether defendants whose convictions were vacated as a result of the Annie Dookhan drug lab scandal should be reimbursed for court fees paid prior to the allowance of the motion to vacate. The SJC decided against such reimbursement, stating that “there [was] no statutory authority” for the return of such monies.

The background of the case is as follows: in 2011, the defendant pleaded guilty to a drug offense and received a probationary sentence whose conditions required the payment of certain fees mandated by statute: “a one-time victim-witness assessment of fifty dollars, as well as a monthly probation supervision fee of sixty dollars and a monthly victim services surcharge of five dollars (collectively, probation fees).” One year later, “after the revelation of misconduct at the William A. Hinton State Laboratory Institute …, a judge granted the defendant’s unopposed motion to withdraw his guilty plea on the ground that Annie Dookhan, the subsequently discredited analyst at the center of the misconduct allegations, [had] performed the analysis of the substances seized during the defendant’s arrest.” Upon the granting of the defendant’s motion to withdraw his plea, “[t]he Commonwealth entered a nolle prosequi on the underlying complaint. Thereafter, the defendant filed a motion for return of property, including probation supervision fees ($780) paid during the term of probation and the victim-witness assessment (fifty dollars).” The motion was denied.

In its decision, the SJC rejected the defendant’s argument “that the language in [G.L. c.258B,] §8[,] requiring the return of the victim-witness assessment where a conviction is ‘overturned on appeal’ also applie[d] to this case where the conviction was vacated as a consequence of the judge’s order granting the defendant’s motion to withdraw his guilty plea.” The Court explained that “[h]ere, the defendant did not appeal from his conviction; rather, his conviction was vacated after a judge … granted postconviction relief through Mass. R. Crim. P. 30, … and the Commonwealth subsequently entered a nolle prosequi. That procedural difference is dispositive here. The plain language of §8 specifically limits persons entitled to a refund to those whose conviction or adjudication of delinquency was overturned on appeal.” The Court also rejected the defendant’s contention that G.L. c.276, §87A, “provide[s] [a] statutory basis for the return of probation fees where a defendant’s conviction is subsequently vacated.” In the Court’s view, the statute “is silent as to a defendant’s entitlement” to recoup probation fees. Continue reading →