Supreme Court issues long-awaited Confrontation Clause ruling in Ohio v. Clark

June 21, 2015,

In a unanimous decision reached by differing concurring opinions, the Supreme Court of the United States finally resolved the question left open by Crawford asking whether statements made to persons other than law enforcement trigger the Confrontation Clause. Publishing its decision in Ohio v. Clark today, the Court unanimously voted that statements made to a teacher at a school program by a child suffering from domestic abuse were not testimonial, and so not barred by the Sixth Amendment Confrontation Clause.

The arguments before the court in this case were fierce, as the Court was poised to make a decision that would either limit a defendant's Sixth Amendment right to Confrontation or restrict prosecutions of countless cases involving child abuse. You can click here to view a thorough outline of the facts of this case, the arguments, and the relevant law, in a prior posting on my blog.

The Majority decided this case primarily on its unique set of facts in this case, rather than by issuing a categorical legal rule. The Court explained that the record clearly reflected that abused child's statements were not made with the primary purpose of furthering a criminal investigation or prosecution. Instead, the child spoke with the teacher with the primary purpose of addressing an ongoing emergency, and the teacher's questions were targeted at eliminating the threat to the child's life. The Court noted that the conversation was informal and spontaneous, and that even the child's age (4 years old) calls to question the possibility that the child could appreciate the use of his responses in a criminal investigation while merely responding to his teacher.

Despite the Majority's heavy reliance on the particular facts of this case to render an opinion, a few legal holdings did arise out of this case. First, the Majority opinion explained that the primary purpose test is not dispositive of the question of whether the Confrontation Clause is triggered, though it is necessary. In other words, although a statement must satisfy the primary purpose test in order to be barred as testimonial, not every statement satisfying the primary purpose test should be barred as testimonial. Both Justice Scalia and Justice Thomas took strong offense to this reading of the Court's past decisions in their own concurrences.

Second, mandated reporters are not per se agents of law enforcement. The test remains a totality of the circumstances analysis in addition to primary purpose. Just because a teacher's duty to report is triggered by a statement made to her does not render that statement testimonial. In other words, whether or not someone is under a legal duty to report child abuse is not dispositive, even if the statements resulting from the conversation have a natural tendency to further a prosecution.

The Majority opinion in this case seems to have avoided making any clarifications to what has been a very unclear area of constitutional law. One of the difficulties with these types of fact-specific opinions is that it leaves little guidance to courts and litigators as to how to argue these cases. The Majority opinion, written by Justice Alito, seems to have expanded the Confrontation Clause analysis beyond the relatively clear "primary-purpose" test to an analysis that requires consideration of other unidentified "conditions." Defense attorneys will certainly continue to raise challenges and appeals in the Confrontation Clause context until the Court publishes guidance that is a bit more satisfactory.

Massachusetts Court orders hearing on Reliability of Breath Test Machine

June 13, 2015,

The Massachusetts Supreme Judicial Court is requiring the Court to hold an evidentiary hearing on the reliability of the breath test device the Alcotest 7110. The SJC held that the trial judge's decision not to hold an evidentiary hearing addressing challenges to the reliability of the machine was wrong. The SJC clearly stated that a defendant who makes a proper showing addressing the reliability of the breath test machine is entitled to a hearing. In other words, the Court stated that trial judges are not permitted to assume that the breath test machine is accurate merely because the legislature approves breath testing under the law, but that breath test is scientific evidence that the Court should hold a hearing to address challenges to its reliability.

The SJC indicated it would retain jurisdiction of the case and require a report within 90 days. It appears that the SJC will review any decision of the district court and address the three issues that it indicated were raised by the case.

The hearing in Com. v. Kirk Camblin, will address the following issues:

  • The Reliability of the Source Code for the Breath Test Machine;
  • Whether the Alcotest 7110 is scientifically reliable because it does not test exclusively for ethanol;
  • whether the Alcotest's calibration method allow the Alcotest to accurately measure BAC.

The SJC rejected one of the defense arguments that the Alcotest was not infrared technology as required under Section 24K because the infrared portion of the machine does not alone control whether the machine produces a valid test result. The SJC found that even though the Alcotest also uses fuel cell technology it does not negate that it is using infrared breath technology under the Statute and regulation.

Issues to be Decided by the Trial Court and Reviewed the State Supreme Court

Flaws in the Source Code

The defense produced an expert that found over 7, 000 errors and 3, 000 warning signals in the Alcotest computer source code. The Commonwealth contends that despite those errors the breath test machine is still reliable and source code errors are to be expected in a complex computer program. The SJC indicated that the Court does not require scientific evidence to be infallible, but that an evidentiary hearing was needed to address this claim.

As part of his reason for denying the evidentiary hearing, the trial judge relied on the case of State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825 (2008) where the New Jersey Supreme Court rejected a challenge to the reliability of the Source Code; however, the SJC held that trial court cannot resolve these claims without allowing for an evidentiary hearing.

Breath Test is not Specific for Alcohol

The defendant argued that the Alcotest was also incapable of measuring exclusively for ethanol. The defense argued that the Alcotest cannot distinguish between interfering substance and compounds that absorb light at the same micron level as ethanol. The defense claimed that the Alcotest is not capable of measuring alcohol to the exclusion of other interfering substances. The Court reviewed the affidavits submitted by the Commonwealth and found that they were confusing and the record was unclear. The Court indicated that on remand the Court should determine if the Alcotest is sufficiently ethanol specific such that the results are reliable and untainted by interfering substances.

Challenge to the Calibration

The challenge to the calibration seems to be the strongest challenge of the defense. This challenge is different from the calibration errors that have been reported in the media. This challenge is that regulations require a calibration prior to every breath test. The defense claimed that even though the Alcotest appears to calibrate itself, that the source code of the machine takes a different path and executes different instructions for the calibration measurement when it measures the individual's breath. The defense claims that the machine is not conducting a proper calibration prior to every test as required by the regulations. The SJC noted that the Commonwealth did not rebut any of the defense claims on this point.

What's Next

This case will be sent back to the district court where a hearing on these issues will be conducted. The Court will address whether:

1. The source code errors are too numerous to make the machine accurate and reliable
2. The Breath test is not sufficiently specific for ethanol to make the results reliable
3. Whether the Alcotest is calibrating itself prior to every test.

As a Massachusetts OUI Lawyer, the outcome of this case is extremely significant because the evidentiary hearing will provide an opportunity to uncover flaws with the Alcotest software. As a practical matter, most charged with OUI, even if they could afford an expert to dispute the reliability of the results, cannot afford to hire experts to address issues pertaining to the machine's source code. Given that the Commonwealth did not study or test the source code prior to implementing the breath test, but assumed its reliability, this hearing is an important opportunity uncover flaws with the breath test machine that are very technical and could go uncovered as a result of the high cost to a defendant to uncover problems with the source code.

Improper Closing Argument results in New Trial in Domestic Assault and Battery Trial

May 26, 2015,

In the case of Commonwealth v. Alphonse, the Massachusetts Court of Appeals awarded a new trial based on the improper argument of the prosecutor. One of the more common grounds to appeal a criminal conviction is based on improper arguments during closing.

In this case, the prosecutor argued that the defendant had the opportunity to tailor his testimony because he was present during the testimony of all the witnesses and not sequestered like other witnesses. This argument was improper because a defendant is Constitutionally required to be present during all testimony and must be present to be afforded the right to confront and cross examine witnesses.

In this case, the Judge cautioned the prosecutor that the argument was improper and indicated to the jury his displeasure regarding that type of argument. Additionally, the judge did grant a directed verdict regarding one of the counts of the criminal complaint.

The Appeals Court found that the improper argument was so significant that it granted a new trial as the key issue in the case was credibility. Improper closing arguments are one of the more common grounds for a court reversing a criminal conviction.

The position of a prosecutor is not suppose to be that of just an advocate but as representative of the Government and attempting to promote justice. A prosecutor is not permitted to make improper arguments to essentially attempt to win at all costs to influence the decision of the jury. Given the argument, it could be the prosecutor had little else to argue other than comment on the fact that the defendant was present during all of the testimony, which is Constitutionally required. Accordingly, the Appeals Court properly granted the defendant a new trial in what would have been a conviction for domestic assault and battery.

For further reading on Improper Closing Arguments, Attorney Stephen Salzburg wrote an excellent article on this topic for the America Bar Journal.

SJC heard argument to decide whether a CWOF is a conviction for purposes of CDL license revocation

May 23, 2015,

The Massachusetts Supreme Judicial Court heard oral argument in the case of Tirado v. Board of Appeals addressing the issue of whether a CWOF qualifies as a conviction for the purposes of CDL license suspensions. In Souza v. Registrar of Motor Vehicles, 462 Mass. 227 (2012), the SJC held that a CWOF could not count as a conviction for the purposes of calculating subsequent offense license suspensions. The SJC found that because the legislature did not explicitly state that a CWOF was a conviction it could not be used to enhance a license suspension by the RMV. The legislature quickly amended the statute to include CWOF as convictions.

The legislature however, never amended the CDL statute to address whether a CWOF was a conviction for the purposes of CDL license suspensions, leaving the SJC with an issue of great importance for Massachusetts OUI Lawyers.

Under Chapter 90F Section 1, a person is disqualified from holding a CDL license if he or she has certain convictions. The statute defines a conviction as follows:

An unvacated adjudication of guilt; a determination that a person has violated or failed to comply with the law in court of original jurisdiction, in an administrative proceeding, if the adjudication of guilt is within it jurisdiction; an unvacated forfeiture of bail or collateral, deposited to secure a person's appearance in court, a plea of guilty or nolo contender accepted by the court, the payment of fine or court costs.

The Board of Appeals argued that a CWOF is a determination by the court that a person violated the law and that the Massachusetts statute was meant to mirror the federal statute to include a broad definition of conviction.

The defense argued that since the legislature never explicitly stated that a CWOF is a conviction it was not meant to be covered by the statute and that the legislature could have drafted the statute to explicitly define a CWOF as a conviction.

The federal regulations broadly define a conviction as an unvacated adjudication of guilt, or a determination that a person has violated or failed to comply with the law in a court of original jurisdiction or by an authorized administrative tribunal.

The Board argued that the definition of conviction under the Massachusetts statute mirrored the federal law. In response to one of the questions from a Justice, the lawyer for the motorist was asked what would a determination that a person violated the law consistent of if it did not include a CWOF. The lawyer for the motorist argued that because that finding is not imposed, it cannot qualify as a conviction. The Justice inquired if any other State uses the term CWOF. It appeared that the Justice may side with the Board based on the questions. The Justice suggested that the Court believed that a CWOF is the equivalent of a determination that a person violated the law and is at least as much of an adjudication as a determination that a person violated the conditions of release.

The State argued that failure to comply with the federal definition of conviction would result in Massachusetts losing federal funding and causing the federal government to shut down its CDL license program. As a result the legislature must have intended the Massachusetts statute to mirror the federal law.

The argument has important implications as if the Court accepts the argument that a CWOF is not a conviction those with CWOF would not be considered prior offenders for the purposes of applying for a CDL license in Massachusetts.

The defense argued that in the absence of specific reference to a CWOF in the federal statute or the Massachusetts statute, the issue is whether the plain language of the statute supports the Board's interpretation of conviction. Relying on Souza, the defense argued that the Court already ruled that a CWOF is not an adjudication of guilt. Because any finding of guilt is deferred, the motorist argued that no judge made a finding that the defendant violated the law.

One lesson from this appeal is that the definition of conviction is extremely broad when you hold a CDL license.

Massachusetts Appeals Court rejects challenge to breath test results based on the Office of Alcohol Testing not providing a manual for breath test machine

May 21, 2015,

The Massachusetts Appeals Court in an unpublished decision ruled that the lack of an operator's manual for the new breath test machine did not bar admission of the test results into evidence. The decision was an unreported decision. This decision has been anticipated for almost a year by Massachusetts OUI Lawyers as it was argued on June 5, 2014. The Court held that the power point presentation was sufficient as training for the officer and that the defendant did not claim that the officer lacked formal training to administer the breath test.

The Court held that the OAT was in compliance with the regulation and even assuming it was out of compliance the Court would not have suppressed the breath test result. The Appeals Court did not read the regulation pertaining to the breath test manual as requiring the Office of Alcohol Testing to create a manual.

The decision from the Appeals Court can be appealed to the SJC if the Court grants further review. The timing of this decision is interesting in light of the disclosure that some breath test machines were not properly calibrated. The Office of Alcohol Testing found that the error was caused by the fact that the officers were not trained to ensure that the calibration satisfies the Massachusetts standards. The Appeals Court's decision essentially minimizing the significance of the regulation requiring that the Office of Alcohol Testing to prepare an operators manual is unfortunate given that this would have prevented unreliable test results from being admitted in numerous cases which caused the most recent controversy surrounding breath test results.

Given the difficulty I had in finding the full decision I have copied it below:

breath test manual decision.pdf

Eyewitness Testimony in Massachusetts after Commonwealth v. Crayton

May 20, 2015,

In Commonwealth v. Crayton, 470 Mass. 228 (2014), the SJC issued an important decision regarding in court identification testimony. The SJC held that if there is no prior identification of the defendant by the witness prior to trial, then an identification for the first time in court is unnecessarily suggestive and the CW must file a motion in limine to admit the in-court identification.

The Court held that an in court identification is suggestive in the same way that a show up identification is and should require the Commonwealth to establish the same foundation to admit the identification. The Court held that it will treat an in court identification without any prior identification as an in-court show up and require the Commonwealth to show good reason for its admission. The Court listed a number of factors that would fall within the "Good Reason" category:

Concern for public safety;
Victim was familiar with the defendant
Arresting officer

The Court held that it was not addressing the issue of whether its rule would apply to eyewitness that saw was not present during the commission of a crime, but may have observed the defendant before or after. The Court is referring to a witness that would testify that a defendant appeared calm after the commission of a crime, or appeared nervous or made some statements. Its unlikely this scenario would come up as the police would show the witness a picture or a lineup to establish that the police have the correct suspect.

The court held that if prior to trial the defendant was put in a room and the witness was asked, is that the defendant", the Court held that it would find that identification suggestive. The Court reasoned that an in-court identification without any prior identification by the victim is essentially the same thing. The Court held that cross examination and jury instructions are not sufficient to avoid the prejudicial impact of a suggestive in-court identification under those circumstances. The Court relied on social science research about the prejudicial impact of suggestive identifications. The Court's focus on avoiding suggestive identification is critical as the Innocnence Project sites false identifications as one of the leading cause of false convictions.

The Crayton case arose out of a suggestive identification for the defendant who was charged with possession of child pornography. His conviction was overturned and the court held that its new rule regarding identification would apply to all pending cases going forward and would not have retroactive application. To read the Crayton decision follow this link.

As a Massachusetts criminal defense lawyer, this decision may come in in charges involving burglary, an assault and battery involving a large number of people or any other crime where identification may be an issue, such as a larceny offense.

What to do if Arrested at OUI Roadblock in Westboro?

May 9, 2015,

What happens if you are arrested at an OUI roadblock in Westboro, Massachusetts? In this Blog, I will explains the three things you need to know to confront the charge.

First, understand that your first court appearance will be for arraignment. This is not a date that the court expect you to resolve the case, but a date for you to be notified of the charge and you will receive another court date for a pretrial conference.

Second, many OUI Roadblocks are winnable at trial. With no evidence of erratic driving, but in fact evidence of safe driving that assist you in your defense, the Government is at a substantial disadvantage in prosecuting the case against you.

What evidence will the Commonwealth rely on? With no evidence of erratic driving, the Commonwealth will have to rely almost solely on field sobriety tests, which are inaccurate, unreliable and subject to many attacks as unfair and not showing someone is under the influence of alcohol. In addition to field tests, the Commonwealth will rely on the officers observations, as to your speech, appearance and behavior. In many roadblock arrest police reports, the officer makes a short report and has little detail of his or her interaction during the stop.

To learn more about roadblock arrests, you should watch this video that explains the process.

To ask questions about your arrest, feel free to contact me on my cell phone at 781-686-5924 or office line at 508-455-4755.

Faulty Breath Test evidence in Massachusetts undermines the reliability of OUI convictions

April 25, 2015,

The news this week of errors with breath testing in Massachusetts has had a major impact on the prosecution of drunk driving cases and raises the potential of hundreds of wrongful convictions and or wrongful pleas that were not supported by accurate evidence. One reason this has occurred is the ease with which prosecutors can admit breath test evidence at trial. The Commonwealth can admit the results without calling any witness that knows anything about how the machine operates. At a trial, the breath test operator will typically testify that they are taught to push the button, wait for the machine to run its self checks and if the machine does not report any error, the results are fine. The officer will often admit to not understanding the science behind the machine.

The Commonwealth is not required to call any expert witness from the Office of Alcohol Testing to verify the accuracy of the results. In a case known as Commonwealth v. Zeininger, 459 Mass. 775 (2011), the Massachusetts Supreme Judicial Court said that breath test records can come into evidence without live testimony because the records are not testimonial, meaning that the Court was saying that the records do not accuse a person of a crime but report "neutral" data. The Court's reasoning was flawed and allowed evidence to come in a trials without being properly tested through cross examination. In light of the disclosure of the problems with the machine, the SJC should reconsider its decision in the Zeininger case that is partly the cause of unreliable evidence being presented to jurors during OUI trials.

This bring us to the error that prompted many counties to hold off using breath test results, including Suffolk, Middlesex, Worcester, Essex, Northwestern, Barnstable County.

Prosecutors are explaining that the error is that the manufacturer has broader tolerance for errors than the State regulations and as a result the machine does not notify of the operator of an error. According to the MyFoxBoston report, police are trying to minimize the significance of the problem by claiming they were not properly trained and had inadequate understanding of the machine. Despite district attorneys declining to use the results, police departments will still offer breath tests for those arrested for OUI over this weekend according to a Boston Herald report.

When the breath test machine calibrates itself prior to each individual test, it was suppose to read between .076 and .084 on a known alcohol solution that was suppose to be .08 percent. The problem was that the machine was reading outside of the calibration without notifying the operator of the error. Accordingly, the machine did not have the ability to self-check its own errors as officers testified occurred during OUI trials.

The issue is that prosecutors and police officers have been testifying since the Alcotest 9510 was first used in 2012 in Massachusetts that the machine would not produce a result unless it was working properly. This testimony that occurred in almost every trial with breath test evidence was clearly wrong and inaccurate. The calibration numbers are at least evident from a breath test ticket, but the machine performs many functions that would be undetectable unless the machine was completely examined which does not happen during a trial or even during the annual certification of the breath test machine.

The breath test machine is suppose to have a mouth alcohol detector, a sensor that determines there is no alcohol in the chamber prior to the breath test and makes calculations to convert a breath alcohol reading into a blood alcohol percentage based on an individual partition ratio. All of these functions of the machine are assumed to work properly. The periodic testing of a breath test machine is simply running a known sample through the machine five times. The machine is never challenged to see if any of its features work during the periodic testing. The annual certification of the machine is not rigorous either with the machine being tested at different alcohol levels of .08, .10 and .20 with a sample made in a laboratory.

The problem with breath testing runs much deeper than officers not being trained to catch if the machine fails to calibrate, but centers around having a machine represent per se evidence of guilty in a criminal case and having no reliable evidence in court that it works, other than the machine did not tell us there was an error. Only in a drunk driving case can someone be convicted of a crime based solely on the result of a machine, that even during trials, police witnesses acknowledge they do not know how it works and simply push the buttons waiting for an error message.

The Office of Alcohol Testing should create meaningful testing of the breath test machine while the Courts should recognize that breath test evidence should require live testimony subject to cross examination at trial, rather than permitting the Commonwealth to submit documents, claiming to show accurate results without anyone to provide meaningful testimony as to how to interpret the records and verify that the machine was working properly.

To read more about breath testing and the error with the machine, you can see my previous Blog on the topic.

Breath Test Results in Massachusetts may be in jeopardy as report of faulty breath test machine in Essex County

April 22, 2015,

According to a news report in MyFoxBoston, Prosecutions in Essex County have stopped using breath test results as a problem has arisen with the calibration of the machine. This report was confirmed by several other media outlets. According to one report, the problem arose in a case out of the Lawrence District Court where a defendant accepted a plea but the machine read outside of the accepted range but produced a result anyway.

While I have not learned of the exact error at this point, I did experience a similar problem with a case out of the Attleboro District Court. In that case, the breath test machine appeared to produce a result, but when the machine self calibrated itself on a solution that was suppose to be .08, it read .071. When testing the calibration solution of .08, the machine is suppose to be within a range of .076 to .084. In this case, the machine was outside the range, but it produced a test result as if it was working properly. When the error was brought to the attention of the district attorney, the results were excluded from evidence.

There could be other ways that the machine provides a faulty calibration. Until further information about the problem is disclosed, it would be advisable as a Massachusetts OUI Lawyer to delay resolving any breath test case until the Commonwealth completes its investigation.

Aaron Hernandez convicted of murder where does the case against Carlos Ortiz and Ernest Wallace stand

April 19, 2015,

Where does the case against Ernest Wallace and Carlos Ortiz stand? While the prosecution did a great job proving that Aaron Hernandez orchestrated a murder, the charges against Ortiz and Wallace seem to be based on the fact that they were present with Hernandez at the time. Mere presence at a crime scene is insufficient to establish a conviction without evidence that they assisted and shared Hernandez's intent.

The case against Hernandez showed that Hernandez, demanded Ortiz and Lloyd come up from Connecticut to go out with him. Throughout the 139 witness trial, there was little mention of the role of Ortiz and Lloyd. The only mention was the inference that Lloyd must have been pushed from the car by either Wallace or Ortiz and that both had a history of drug use and used PCP.

There does not appear to be a strong case against either for murder. Wallace's DNA was not even tested indicating a lack of investigation as to his involvement. There was no testimony as to any relationship between Wallace, Ortiz and Lloyd. Had there been an adverse relationship, it would have been likely exploited by the defense as a possible motive.

Clearly, the prosecution wanted its conviction of Hernandez and got it this week.

Two other men are facing 1st degree murder charges when eight weeks of trial did not reveal what shared intent they had to assist Hernandez to carry out the murder. From the start, the Commonwealth had its theory that Hernandez was the shooter. MyFoxBoston has the timely of the case on its website.

At best, it appeared they have evidence that they assisted in getting Lloyd out of the car. But with only circumstantial evidence as to when the 1st shot was fired, it will be difficult to prove that either Lloyd or Wallace knew Hernandez's intent and assisted with it. Based on the trial, the evidence seems clear that the prosecution presented these two men as obeying Hernandez's every command.

At the trial of either Wallace or Ortiz, we could learn Hernandez's exact role as either could testify in their own defense. Both could also present evidence that they feared Hernandez and felt as though they had to go along as a result of his past behavior and the fact that he had a gun in his possession. While there could be other evidence that was inadmissible against Hernandez that would be used to prosecute Ortiz and Wallace, it is likely any evidence pointing to them would have been used by the Hernandez defense team.

Based on the evidence presented, it seems unlikely the Commonwealth could get a murder conviction against either co-defendant. The Government will likely want to resolve these cases and the family of Lloyd may not wish to go through another trial. To read more about this case you can see my Blog post on the trial. My final Blog on this trial will be geared toward what lawyers can learn from the trial and where to find great examples throughout the testimony. Look for that next week.

Aaron Hernandez Found guilty of 1st Degree Murder in Murder of Lloyd

April 15, 2015,

In the end, the detail after detail that the prosecution provided convinced the jury beyond a reasonable doubt that Hernandez murdered Odin Lloyd. Jurors spoke after the verdict with one juror leading the discussion and indicating that the testimony of Robert Kraft was critical as Hernandez would not have known the time of death given the jury never leaned it after eight weeks of testimony.

Prosecutor William McCauley, made a very passionate closing a statement linking each piece of evidence and its significance to the jury over the 8 week trial, with 139 witnesses called and over - exhibits.

Here are some of the facts that may have convinced the jury to return a verdict of guilty.

Hernandez went to pick Lloyd up at about 2:00 am the night of the murder. Clubs and bars were closed; Lloyd did not appear dressed to go out.

It was urgent according to Hernandez's texts for Wallace and Ortiz to come up to go out with him. Hernandez ordered Ortiz and Wallace to go out with him that night and made plans on Father's Day, texting many times from the South Street Cafe.

Video showed with Hernandez leaving his home with a gun and entering his home with a gun. The video surveillance also showed him apparently checking the seat when getting out of the cars minutes after the murder. McCauley argued that he was looking for shell cases from one of the shots fired from inside the car as the medical examiner testified that one of the shots was consisted with it being fired from inside the car.

It likely was the combination of Hernandez having the gun, ordering Ortiz and Wallace to accompany him, his complete control as exhibited through the text messages, his behavior in ordering Jenkins to get rid of the box and false statement to Kraft that left the jury convinced of his guilt.

Hernandez's defense argued that Ortiz and Wallace acted crazy and killed Lloyd suddenly without Hernandez knowledge and that he only covered up the crime because he did not know what to do. This argument likely failed because the video of Wallace and Ortiz getting out of the car after the murder, looked like they were simply following Hernandez's every move. It did not appear as though they were acting crazy, but the look on Ortiz's face appears to be one of shock, he walks slowly into the house.

The cross examination of the defenses PCP expert discredited him; the expert, did not offer any conclusion or solid basis to conclude that anyone was acting under the influence of PCP. His answers were evasive and did not provide a strong enough basis for the jury to credit that the murder was a sudden act of rage from Wallace or Ortiz.

The case does not end with the verdict; there will be an appeal, to the Massachusetts Supreme Judicial Court. One of the major issues on appeal with be that Judge Garsh, struck the testimony of the expert from Glock, Aspinwall, identifying the murder weapon as a Glock in the video. The judge allowed part of his testimony while excluding others parts, finding that it was proper for him to testify that the back strap but could not consider his testimony regarding the trigger lock and front strap. The defense would assert that his entire testimony was improper and may be there strongest grounds for appeal.

During closing argument, the defense referenced his testimony that had been struck from evidence, reminding the jury to disregard this evidence. I think the reference to the testimony during closing may help the defense argue that it was not content with a jury instructions, requested a mistrial and that the error prejudiced the outcome of the trial. The defense could argue that asking the jury to ignore powerful and incriminating testimony was unfairly prejudicial warranting a new trial.

Given that many of Judge Garsh's rulings benefited the defense, it is difficult to see the SJC overturning the conviction. I thought Garsh's ruling were extremely fair to both sides. She was very thoughtful in each of her rulings citing the case law to the lawyers when ruling on motion.

Other grounds for appeal likely would involve the Judge's decision regarding the Motion to Suppress Evidence along with the admission of statements from the defendant's jail house calls into evidence. As a Massachusetts Criminal Defense Lawyer, I have enjoyed watching the trial and plan to create a post highlighting the helpful part for defense attorneys as there were numerous examples of effective cross examination from both sides.

To read about the discussion of the jury, you can see the Video on the

How Strong is the Evidence in the Aaron Hernandez Trial as the Commonwealth has rested its Case

April 2, 2015,

The prosecution rested its case against Aaron Hernandez today after 39 days of trial.

Friday, the parties will address legal issues relating to a motion for required finding of not guilty by the defense, where the defense attorneys will argue to the judge that the Commonwealth has not presented enough evidence to allow the case to reach a jury. This motion will likely be denied by the judge, but is commonly filed in every criminal trial. The parties will also discuss jury instructions, with the defense presenting its case on Monday. The defense is expected to rest on Monday and the Court would likely have Closing Arguments on Tuesday.

Summary of the Highlights of the Commonwealth's Case

The prosecution established through video and cell phone evidence that Hernandez was with Lloyd at the time of the murder and was present at the scene. Hernandez's DNA was found on a marijuana blunt found near the body of Lloyd. Further connecting Hernandez to the scene were tire tracks of the rented Nissan matched those found at the murder scene.

Hernandez returned the car the next day and the manager found a shell casing and gum inside the car. She threw this evidence into the dumpster and it was retrieved by State and North Attleboro police. Hernandez's DNA was found on the shell casing found in the rental car. The defense argued that the DNA could have been transferred onto the casing from the gum. The defense will likely stress that the lack of proper DNA testing on the gum and from the co-defendant was based on their desire to pin the murder on Hernandez and deprived the jury of crucial evidence that it should have had to evaluate in the case.

The Six shell casing founds were from a Glock 45 indicating it was fired six times according to the testimony. Additionally, the Commonwealth showed that following the murder Hernandez had frequent cell contact with Wallace.

Where are the gaps in Evidence in the Commonwealth's Case

The defense will argue that the DNA testing was not complete that the casing at the scene could not be adequately tested; moreover, the defense will point to the lack of control over the crime scene as allowing evidence to be lost as well as the failure to test the DNA of co-defendant Wallace. Finally, the defense will point to the lack of DNA testing of the gum as a failure of the Commonwealth to properly investigate the case.

What Circumstantial Evidence links Hernandez to the murder

The surveillance video from Hernandez's home shows him with what looks like a gun shortly after the murder and with Ortiz and Wallace.

The testimony of Shayanna Jenkins establishes that the three were also together after the murder and that she made them a smoothie and they were hanging out by the pool. Further, Wallace is shown holding Hernandez's daughter the day after the murder.

In terms of the Government's theory of joint venture, the fact that the three are seen after the murder supports the Commonwealth's claim of a joint venture.

After the murder Hernandez is still controlling the actions of the alleged co-conspirators. This is one of the stronger parts of the Commonwealth's case is that even after the murder they can argue Hernandez is in control.

While Jenkins did not give the prosecution much evidence, the little is gave was extremely valuable, that he instructed her to drive to East Greenwich, Rhode Island late at night while he was at the police station to give Wallace money. The amount was intended to be greater than 500.

Additionally, Jenkins testified that Hernandez asked her to get rid of a black box in the house that the Commonwealth contends contained the murder weapon. Bradley testified that he saw a gun in the house in the basement around that same spot.

Jenkins clearly did not want to testify against Hernandez, claimed not to have remember many points where it would be nature for her to speak to him, so the fact that she claims she did not look into the box or that it smelled like marijuana was likely not accepted by the jury and the jury may have concluded she got rid of the murder weapon. Jenkins acknowledged using baby clothes to conceal the content of the box from the surveillance footage.

The testimony of Robert Kraft was also critical to the Commonwealth as it is inconsistent with the other evidence in the case. Hernandez had to speak to Kraft and the jury could infer that he lied to Kraft and knew he had to say something so claimed to not have been with Lloyd at the time of the murder.

The prosecution case rests entirely on circumstantial evidence, but they established an abundance of evidence, but still it is unclear who shot Lloyd, what was the motive. The men all smoked pot so the defense may claim that given the drug involvement of everyone involved it creates a reasonable doubt. The defense will point out to the inadequate investigation of Ortiz and Wallace to rule out, them having a motive to kill Lloyd, that from the start the investigation focused on Hernandez and there investigation was geared toward making the evidence fit there theory.

Where the jury may find Reasonable Doubt

A strong part for the defense was in the questioning of the footprint expert; he testified that he did not think one of the shoe prints was sufficient for analysis but was asked to reexamine the print after being directed by Trooper Benson. Further, the defense point out that the investigators did not use the recommended and best practices in securing the crime scene. The defense will point to the lack of accurate and reliable photographs of the crime scene and other precautions to preserve the crime scene. As a result of the lack of preservation of the crime scene, key evidence was lost and the jury cannot know what other evidence is missing, which the defense will argue raises a reasonable doubt.

The testimony of Bradley revealed that he saw a gun in the basement but did not believe that it was a Glock and also claims that the box in the basement had marijuana and money in it. Jenkins testified the box smelled like marijuana confirming the defense theory that Hernandez was getting rid of marijuana. In his article on, Michael McCann believes that Bradley's testimony may have helped Hernandez.

Bradley also indicated that Hernandez smoked a large amount of marijuana and was a chain smoker. Bradley's testimony was undermined by the fact that he had a criminal record, pending charges and may believe that testifying against Hernandez will assist him with his pending cases.

Bradley did testify that he held a Glock in a hotel in Florida in 2011 that resembles what prosecutors believe was the murder weapon. This testimony was impeached as Bradley did not reveal this before the grand jury previously. Though the description of the gun in the box did not match the murder weapon, Bradley confirmed that there was a box that contained a gun, strengthening the Commonwealth's proof that the murder weapon was not found because disposed of by Jenkins.

How will Reasonable Doubt be explained to the jury?

The Massachusetts Supreme Judicial Court recently clarified the jury instruction on reasonable doubt requiring judges to instruct a jury that reasonable doubt means the highest degree of certainty in the matter of human affairs; further, the jury will be instructed it must have an abiding conviction to a near moral certitude that the charge is proven to meet the standard of proof beyond a reasonable doubt.

Friday the parties will have a charge conference where the judge will review and listen to requests for specific jury instructions. Under the joint venture theory, Hernandez does not have to fire the shot that caused the death to be guilty of murder but is guilty under a joint venture theory.

Jury will be instructed that a joint venture is proven if the following is proven:

The test [for joint venture] is whether each defendant was (1) present at the scene of the crime, (2) with knowledge that another intends to commit the crime or with intent to commit a crime, and (3) by agreement is willing and available to help the other if necessary."

When you look at the circumstantial evidence in the case, it is compelling, but given the fact that the Commonwealth targeted Hernandez, he has no motive to kill Lloyd and the crime scene was not preserved, DNA testing was inadequate and crime scene investigations like the foot print expert were not qualfiied, those factors could lead the jury to find a reasonable doubt and find Hernandez not guilty.

For further coverage of the Trial, MyFoxBoston, has a complete timely of the trial on its website.

Cross Examination by Aaron Hernandez Defense team discredits key evidence at murder trial

March 24, 2015,

Last week during the Aaron Hernandez trial there were a few great examples of cross examination issues that reoccur at criminal trials. One was impeaching a witness with a prior inconsistent statement. During the Cross Examination of Hernandez Lawyer Michael Fee, the witness, Kwami Nicholas continued to deny making any prior statements. The witness was particularly difficult in that even after being shown video and audio recording of his statement he continued to deny making that statement. As a Criminal Defense lawyer in Massachusetts, the Hernandez trial has raised many interesting legal issues that have been covered on this Blog.

Fee was careful in his impeachment of the witness because he wanted the jury to accept the prior version of events recorded at the police station. He avoided giving the witness any opportunity to minimize his statements at the police station. When the witness denied remembering the statement he moved on to his next statement, as any response from the witness would have been unpredictable. His final series of questions after establishing that the witness did not remember anything from the recorded interview, he asked the witness if he a poor memory, which he denied, but given his prior statement it would be difficult to conceive of the jury placing any weight on his testimony.

The other interesting cross examination example came from the cross examination of the Commonwealth's footprint expert, Steven Bennett, from the Massachusetts State Police.

The Full Cross Examination can be found at the Website WildAboutTrials, Day 31.

On cross examination, Bennett denied being influenced by the fact that Trooper Benson requested that he reexamine the shoes after Trooper Benson told Bennett that he believed the shoes matched Hernandez's shoes. Trooper Bennett changed his opinion about the shoe impression after initially stating he could not draw a comparison. Bennett acknowledged realizing that by changing his opinion he assisted the prosecution in the case.

Bennett was also asked about conformational basis, meaning that when a scientist is told about expected results there may be a bias in the result. Bennett denied being influenced by Benson and also rejected any notion that footwear impressions are subjective. Though when pressed, he acknowledged there are no standards for footwear comparisons.

Bennett's qualifications were attacked by the defense as the Commonwealth's expert only took one three day course. He admitted that he never took the certification test by the International Association of Identification. Further, Bennett was confronted with the standards identified by the Scientific Working Group, set up by the Department of Justice for footwear and tire tracking examiners. This group indicated that proper photography of footwear impressions is essential. Earlier in test trial the defense attacked the care and skill taken by Detective Arrighi in photographing the scene.

Bennett acknowledged if the impression lacks sufficient detail no comparison could be conducted. Further, Bennett was also asked if he knew what Sergeant Arrighi did at the scene, suggesting that he may have compromised the crime scene.

The last piece of authority that was used for impeachment was a book written by William Bodziak, Footwear Impression Evidence. According to Bodziak, it is always preferable to make a dental stone impression to examine footwear impressions is possible, but this was not done. Bennett was read an execerpt from the book on the importance of casting three dimension impressions. The book said necessary to cast every impression at the crime scene. All impressions should be casted evidence left at the crime scene is lost. Bennett said he was aware of the statement but disagreed that cast should always be made of 3 dimension impressions. Hernandez's defense lawyer asked Bennett: based on your one three day course in footwear examination in 2006, you have a different opinion. The witness stated he disagreed with the one sentence that defense counsel read.

MyFoxBoston has been live streaming the trial and has a section on its website dedicated to coverage of the trial and has been a great resource for accurate and information about the trial.

Massachusetts Court ruling gives police chief broad discretion to deny gun license

March 19, 2015,

The state's highest court decided this week to uphold Shrewsbury police Chief Gemme's decision to revoke a Raymond Holden's license based on an assault and battery charge that was ultimately dismissed. The case is important for those looking to apply for an LTC or those who fear suspension or revocation, because it showed just how broad a licensing authority's discretion is.

The licensing authority in Massachusetts may deny an application or suspend or revoke for any of the following reasons under G. L. c. 140, § 131 (d) and (f). :

1. A felony conviction as a juvenile or adult- ineligibility waived after 5 years
2. Being the subject of a current 209A restraining order
3. Conviction for possession or sale of drugs
4. Confinement to a hospital for mental illness-may be waived with statement from treating physician
5. Conviction of a misdemeanor punishable by imprisonment for more than two years-waived after 5 years
6. Conviction of a violent crime-never waived
7. Conviction of any weapons charge for which imprisonment may be imposed-waived after 5 years
8. Past or current treatment for drug or alcohol addiction-waived after 5 years with affidavit from physician
9. Being the subject of an outstanding state or federal arrest warrant
10. Not a "suitable person" in the eyes of the licensing authority

Mr. Holden's license was suspended, revoked and eventually his reapplication denied based on the "suitable person" standard.

The case itself arose out of an incident that occurred in 2005. Raymond Holden's license to carry was suspended following his arraignment in Westborough district court for assault and battery of his wife in September 2005. Chief Gemme suspended his license 2 days after the arraignment, relying on the fact that he was charged with assault and battery. The charges were subsequently dismissed at his wife's request 2 weeks later.

Three months after the dismissal Mr. Holden, filed a complaint for judicial review of his suspension in the Worcester District Court. A hearing was held and the judge ordered the restoration of Mr. Holden's license stating that the suspension was "arbitrary and capricious" because it was based on a charge that was ultimately dismissed.

On January 30, 2006, the chief reinstated Mr. Holden's license and revoked it on the same day. The Chief released a written decision justifying the revocation. He stated that the original suspension was based on the mere existence of a criminal complaint. He distinguished this from his decision to revoke by stating that the revocation was based on the underlying facts that he found to be credible in the police report.

The case continued to be appealed by both side until it was brought before the state's highest court in 2014. The SJC decided this week to uphold the Chief's decision to withhold licensing based on the suitable person standard and granted a licensing authority broad discretion in deciding what a suitable person is, allowing licensing authorities to consider the facts of an underlying charge even when the charge is ultimately dismissed.

While acknowledging that the "suitable person" standard gives licensing authorities "broad discretion" in making licensing decisions, the court noted that it allows authorities to keep guns out of the hands of those who might pose a risk to public health and safety.

The court said Mr. Holden's license was revoked and his application for license renewal denied "not on a generalized, subjective determination of unsuitability, but on specific and reliable information that he had assaulted and beaten his wife.

The court reasoned that "the fact that there was no conviction removes the incident as a license disqualifier, but it does not remove the chief's consideration of the incident on the question of Holden's suitability".

Responding to Mr. Holden's argument that the chief must show he is "currently unsuitable," the court said a period of five years following an alleged incident of domestic abuse "without professional intervention" was "hardly stale evidence." The court declined to offer an example or standard for how old an incident would have to be to make it too stale.

A person denied a license to carry, or one whose license is suspended or revoked based on the suitable person standard may appeal the decision in district court. However the ruling in Holden's case illustrates just how difficult it may be to be successful on appeal. For now, the courts have determined that the purpose of G. L. c. 140, § 131, is to "limit access to deadly weapons by irresponsible persons." Ruggerio v. Police Comm'r of Boston, 18 Mass. App. Ct. 256, 258 (1984) and that they would rather deny a license than mete out punishment after an unfortunate event.

Defining Circumstantial Evidence in the Aaron Hernandez Trial

March 18, 2015,

The case against Aaron Hernandez is circumstantial; sometimes in the minds of the public this makes for a weaker case. While circumstantial evidence is viewed as lesser evidence by the public and likely by a jury, under the law, the two forms of evidence direct and circumstantial are viewed as the same, one form of evidence is not better than the other and either type of evidence can support a conviction.

At the end of the case, the judge will give the jury instructions on the definition and application of circumstantial evidence that will help the jurors understand how they should weight the evidence and the language of this instruction is one of the many important aspects of the case.

The judge will explain the difference between direct and circumstantial evidence. Circumstantial evidence is evidence where a witness cannot testify directly about a fact, but the witness presents evidence of other facts that the jury may draw reasonable inferences from.

Mail Carrier Analogy Often Used in Massachusetts Trials

In Massachusetts judges often use the mailman analogy to help jurors understand the difference between direct and circumstantial evidence:

"Your daughter might tell you one morning that she sees the mailman at your mailbox. That is direct evidence that the mailman has been to your house. On the other hand, she might tell you only that she sees mail in the mailbox. That is circumstantial evidence that the mailman has been there; no one has seen him, but you can reasonably infer that he has been there since there is mail in the box.

While this instruction is part of the model instruction, the defense should probably object to it as it allows proof based on assumptions and does not apply in this case. The mailbox analogy often used unfairly overstates the persuasiveness of circumstantial evidence because only the mail carrier delivers the mail and the mail in the box in marked with a stamp from the post office. The circumstantial evidence that the mail carrier must have put the mail there is not based on the chance that something is in the mailbox.

Other States use different examples of circumstantial evidence as discussed in Paul Callan's Article on CNN where New York uses an example of seeing people board a train with umbrellas and wet clothes and leading to the conclusion that it was raining.

In a case where circumstantial evidence is the sole proof, the jury instruction must be careful to prevent the jury from allowing the charge to be proven based on assumptions and speculation and in filling in the gaps. The mailbox example permit the jury to infer it must have been the mail carrier when the Hernandez case does not contain such convincing circumstantial evidence.

The judge will then explain how the jury should apply circumstantial evidence. In Massachusetts there is no difference in probative value between direct and circumstantial evidence. In criminal prosecutions, circumstantial evidence is competent to establish guilt beyond a reasonable doubt. This means that one type of evidence is not necessarily more important or factual then the other.

The judge will instruct the jurors that they may only draw inferences from facts proved to them and that any inferences drawn must be reasonable and based on common sense and experience of life. These inferences do not have to be inevitable or without question but they must be reasonable and logical conclusion from the prior inference. The jury may not use conjecture or guesswork to choose between alternative inferences.

A good example of this type of inference piling is the gum evidence in the Hernandez trial. The prosecution introduced evidence that Hernandez purchased a certain type of gum and that same brand of gum was found in a rental car next to a shell casing with of the same caliber as the gun used to shoot Odin Lloyd. The shell casing had Hernandez's DNA on it. This line of evidence requires jurors to infer that because he bought the same type of gum, the gum found in the car must be his and because that gum was found next to a shell casing of the same caliber gun used in the shooting, and because his DNA was on the casing that he therefore shot Odin Lloyd.

The defense has argued that it just as likely that the DNA casing from the bullet was transferred from the gum. The defense has also used this line of evidence as a tool to discredit the police's investigation of Odin's death. The defense was able to elicit testimony from the prosecution's DNA witness that showed that

1. The bubblegum wasn't subjected to DNA testing;
2. Hernandez's DNA on the shell casing may have simply been transferred from the bubblegum and
3. The co-defendant's DNA was never collected or tested against the gum or the casing

Collectively, this testimony raises a possible alternative to the prosecution's theory.

In closing argument, the defense is likely to emphasize that while the jury can consider circumstantial evidence, they cannot use it to fill in for a lack of proof in the case and if there are multiple inferences permitted, than the fact has not been proven by circumstantial evidence and the Commonwealth has not proven its case beyond a reasonable doubt as required under the Constitution.