Massachusetts Criminal Defense Lawyer Blog

The Massachusetts Court of Appeals vacated a conviction in the case of Commonwealth v. Wolcott when the defendant was denied her right to a public trial as a result of the trial judge closing the courtroom. The Wolcott decision is an important decision as it emphasizes that Massachusetts criminal defense lawyers should object any time a judge closes the courtroom or denies access to a courtroom during any part of a trial. Additionally, the court's decision invalidates the practice of some judge in Massachusetts criminal trials closing the courtroom during jury selection, limiting access during closing statements and jury instructions.

The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions the accused shall enjoy the right to a public trial. In the Wolcott case, defense counsel sought access for members of the public during jury selection. The judge denied that request stating that as space became available the public could take those seats. The defense counsel moved for a mistrial which was denied by the trial judge. The court found that the trial judge did not announce that when space became available that members of the public could enter the courtroom. The judge refused to allow members of the public into the courtroom and court officers asked members of the public to leave the courtroom without notifying members of the public that as space became available they could reenter the courtroom. Accordingly, the Appeals Court found that the judge closed the courtroom.

The Massachusetts Appeals court reviewed the case of Waller v. Georgia, 467 U.S. 39 (1984), from the United States Supreme Court addressing when a full closure of the courtroom can be justified under the United States Constitution. The Waller Court used a four part analysis:

1. The party seeking to close the court must advance an overriding interest that is likely to be prejudiced.
2. The closure must be no broader than necessary to protect that interest;
3. The trial court must consider reasonable alternatives to closing the proceeding;
4. the court must make adequate findings to support closure of the courtroom.

The United States Supreme Court recently addressed the issue of public trials in the case of Presley v. Georgia, 130 S.Ct. 721 (2010), where the court underscored that the right to a public trial is rooted in both the Sixth Amendment and is also guaranteed by the First Amendment. In Presley, the Court was also faced with a judge that denied the public access during jury selection and found that the judge did not consider whether there were reasonable alternatives to closing the court during jury selection. In applying the Presley case, the Massachusetts Court of Appeals found that the jury verdict had to be set aside based on the failure to provide the defendant a public trial and held that because the violation is a structural error, that the court would not apply harmless error analysis, but would vacate the conviction, providing the defendant with a new trial.

Continue reading "Judge denies right to public trial resulting in Massachusetts Appeals Court overturning conviction " »

A 31-year-old man is facing drug charges in Taunton after a two-month investigation by the state police, the Enterprise News reported.

Authorities allege that Thomas Jeffreys is one of the area's major drug dealers; he is being held in lieu of $100,000 cash bail. He was arrested by Connecticut state police and brought to Massachusetts to face 17 counts of conspiracy to violate drug laws. He was arraigned in Taunton District Court.

A 26-year-old Middleboro woman was also arrested in connection with the drug investigation. The woman is reported to be the mother of Jeffrey's child. Police believe the two were in Connecticut to visit Foxwoods casino.

Police say Jeffreys was one of the main targests of the investigation, which relied on court-ordered wiretaps and involved 13 different law enforcement agencies. The conclusion of the investigation led to 15 arrests this week in Taunton and Raynham.

A careful review of the evidence in this case will assist a Taunton criminal defense lawyer in determining the best course of action. Challenging the probable cause for the wiretaps, searches and arrests could result in a reduction or dismissal of the charges.

In setting bail, the judge said Jeffreys has an extensive "history of drug distribution" and said he is accused of being a "large-scale cocaine dealer."

Two other men were also arraigned in Taunton district court in conjunction with the investigation. Jose Frenandes, 24, of Taunton, was charged with 14 counts of conspiracy to violate drug laws and Brian Lacombe, 22, of Taunton was arraigned on eight counts of conspiracy to violate drug laws.

Continue reading "Man faces drug charges in Taunton after authorities allege he is major player in area cocaine trade" »

A Hopkinton man entered a not guilty plea to a charge of indecent assault and battery on a child over 14 in Worcester District Court. According to a news account, the defendant, George Scandalis, was driving in his Lexus SUV and asked the boy if he could use his cell phone. When the boy got into the car, the news account states that the defendant sent himself a text message and then groped the boy.

It appears that the boy informed his family who told the police. The police then posed as the boy and sent the defendant a text message, when the defendant arrived he was arrested.

The Worcester District Court judge set bail at $ 5000.00 and ordered Scandalis to stay away from the boy and have no unsupervised visits with any child under 16.

As a Massachusetts criminal defense lawyer, this case appears more difficult to defend than the typical indecent assault and battery charge. Many charges of sexual assault involve individuals with a relationship to one another, where a criminal defense lawyer in Worcester can argue that the victim had a motive to lie, fabricate or that a third party had a motive to influence the perception of the minor.
In a indecent assault and battery trial, the defense lawyer has to answer for the jury the question why would the victim lie or who could compel the victim to lie or distort the truth. Here, these issues appear to be a challenge for the defense lawyer; however, often the initial news account does not contain a complete and accurate version of what happened and it is likely that the Worcester criminal defense attorneys representing the defendant will uncover additional evidence to prepare a defense in this case.

Massachusetts courts have been permitting police officers to testify that a substance is an illegal narcotic under Massachusetts drug laws based on field testing of the substance and without the need for expert or scientific evidence to prove that a substance is an illegal narcotic, like cocaine or marijuana.

In the recent case of Commonwealth v. Connolly, 454 Mass. 808 (2009), the Massachusetts Supreme Judicial Court found that the admission of drug certificate of analysis without live testimony in violation of Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009) was harmless error based in part on the fact that the officer field tested the narcotics, confirming the nature of the substance.

A case recently decided by the North Carolina Supreme Court, State v. Ward, 694 S.E. 2d 738 (N.C. 2010), may assist Massachusetts criminal defense lawyers in excluding unreliable field testing in Massachusetts drug possession and distribution cases.

In the Ward case, the defendant was charged with possession of illegal drugs without a prescription. The defendant possessed tablets of Oxycodone, Dihydrocodeinone, Hydrocodone, along with other narcotics. The State conducted a chemical analysis of half of the substance seized from the defendant and identified the remaining tablets by visual inspection.

When the State's expert was asked why a visual inspection method was used, the expert testified that it was used because the State has limited resources. The court found that the visual inspection method was simply put a method for cutting corners that the State used when the amount of illegal narcotics was at the misdemeanor level. The court was troubled by the different level of testing performed on narcotics based on whether the charge was a felony or misdemeanor with felony drug charges receiving complete chemical analysis.

The North Carolina Supreme Court found that the remarkable credentials of the expert make it even more compelling to prevent the expert testifying based on an unreliable methodology as the jury could be unduly influenced by his credentials and accordingly accept his testimony. Essentially, the expert admitted that his testimony that a pill was a particular illegal drug was based on comparing the picture to that in a medical book.

Continue reading "North Carolina Supreme Court finds expert's visual inspection method for identifying illegal narcotics unreliable and its application to field testing in Massachusetts drug cases" »

The Massachusetts Appeals Court revisited the doctrine of the first complaint witness in the recent decision of Commonwealth v. Aviles, decided on August 16, 2010. In Aviles, the defendant appealed his conviction of rape and indecent assault and battery arguing that the trial judge committed error of law in admitting evidence of multiple complaint witnesses. This ruling represents an important decision for criminal defense lawyers, defending sex crimes.

As a Massachusetts criminal defense lawyer, charges of sexual assault generally raise an evidentiary issue known as the first compliant doctrine. Under the first complaint doctrine, defined by the Massachusetts Supreme Judicial Court, in Commonwealth v. King, 445 Mass. 217 (2005), the prosecutor is only permitted to have the first person to whom the victim told of the alleged assault to testify at trial.

The rationale for the doctrine is to refute the notion that silence is a sign of lack of credibility of the victim. In other areas of criminal law, a victim would not be permitted to testify that she told someone else about a crime as the testimony would be inadmissible hearsay. Accordingly, the first complaint doctrine is essentially a special exception to the hearsay rule. The SJC in King limited the evidence to one witness out of concern that permitting numerous complaint witnesses to testify would deprive the defendant of a fair trial and unfairly enhance the credibility of the victim.

In Aviles, the victim alleged that the defendant touched her on four or five occasions. The defendant told the victim that he would hurt her if she told anyone. The victim believed the defendant's threats and did not disclose the incident to anyone until she told her mother three years later that the defendant touched her. The incident was still not reported until the victim saw the defendant's picture on television while at her grandmother's house and said that the defendant raped her. Following that incident, the police were called. The defendant objected to any testimony of the defendant's grandmother being told to the jury under the first complaint doctrine. The judge ruled that the testimony was admissible to explain the delay in reporting the incident and how it came that the victim brought the matter to the attention of the police.

The court held that the exclusion of the testimony regarding who the victim disclosed the rape to would have created a false impression that she fabricated the allegations. The court also held that even if the testimony was not properly admitted that there was no substantial miscarriage of justice, as the court held that the objection to this testimony was not preserved by the trial counsel.

The court reviewed the error under the more forgiving substantial miscarriage of justice standard because the court held that the defendant did not preserve the objection. As a Massachusetts criminal defense lawyer, it is hard to see how the defense lawyer's objections could have been more specific and detailed. The decision was a 2-1 decision of the Appeals Court and it is anticipated that a motion for further appellate review would be allowed as the decision raises significant issues regarding objections in criminal cases and the first complaint doctrine.

A Quincy woman was arrested on charges of domestic assault and battery according to a news account. The arrest arose out of an incident with her daughter. The police responded to the residence where both claimed to have been assaulted by the other. It appears that only the mother was arrested.

As a criminal defense lawyer in Massachusetts, I have handled many cases similar to this one. Generally, these cases get dismissed short of trial at a pretrial stage. In a case where both parties claim to have been the victim of assault, each party has a Fifth Amendment privilege not to testify against the other party. In a case where the victim is charged with a criminal offense or could be charged, in many cases a victim in these circumstances will elect not to testify to avoid potentially incriminating themselves as a result of being subject to cross examination by a Massachusetts criminal defense attorney.

The U.S. Supreme Court continues to chip away at the Miranda warning, dialing back the landmark protections afforded criminal defendants since the 1960s, the Associated Press reported.

What is important for a defendant to remember is simply this: Never speak to authorities as the suspect in a criminal investigation without the physical presence of a Massachusetts criminal defense lawyer. There is absolutely nothing to be gained form it. You are not going to talk your way out of charges. And, all too frequently, the statements you make are going to be some of the strongest evidence used against you in court.

If you keep that in mind, changes to Miranda won't impact your rights as the high court continues to water down what has become a defendant's most basic right over the last four decades.

"It's death by a thousand cuts," said Jeffrey Fisher, co-chair of the National Association of Criminal Defense Lawyers. "For the past 20-25 years, as the court has turned more conservative on law and order issues, it has been whittling away at Miranda and doing everything it can to ease the admissibility of confessions that police wriggle out of suspects."

The original ruling was issued in 1966 and emerged from police questioning of Ernesto Miranda in a rape and kidnapping case in Phoenix. Perhaps the court's most famous ruling, it requires suspects to be told that they have the right to remain silent, that they have the right to an attorney, and that an attorney will be provided if they cannot afford one.

A trio of decisions issued this year have pruned back some of those rights. The court approved a warning used in parts of Florida that did not notify defendants of their right to an attorney during police questioning. In a separate ruling, the court found that Miranda rights are good for a period of 14 days after a defendant is released from custody. Previously, an assertion of Miranda rights was good forever. Now police can attempt to re-question a suspect after a period of 14 days, even if they asserted their right to remain silent or to have an attorney present. This has increasingly become an issue in cold-case homicide investigations, where law enforcement felt they were hampered by a suspect who asserted his rights decades ago.

Lastly, the court has ruled that a suspect must overtly respond in asserting the "right to remain silent," just as they must tell police that they wish to have a lawyer present.

At least Justia Sonia Sotomayor found the irony.

"Criminal suspects must now unambiguously invoke their right to remain silent -- which counter intuitively requires them to speak," she said. "At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so."

Continue reading "Miranda warning and right to remain silent without presence of a Massachusetts criminal defense lawyer" »

Closing two Plymouth County district courthouses will cost far more than it saves, the Enterprise News reported. The courthouses in Wareham and Hingham are among five that the state Trial Court may close in an attempt to erase a $21 million budget deficit.

Prosecutors, Brockton defense lawyers and other advocates say the closures would cost far more in police overtime and travel costs and would also bog down court operations.

The plan calls for the Wareham District Court operations to move to Plymouth District Court and Hingham District Court operations to move to Brockton District Court.

Stoughton District Court would stay open but the Norfolk Juvenile Court in Dedham would be moved to Stoughton. Several public hearings on the plans are scheduled for the coming days.

Stoughton Criminal Defense Attorney Michael DelSignore opposes any move to close the Stoughton court as it is vital that the court remain easily accessible to victims, defendants and witnesses who must attend court hearings.

Hearings are set for 5 p.m. Thursday at the Brockton District Courthouse, 215 Main St. Another hearing will be held Aug. 18 at Plymouth Trial Court.

Courthouse closures are likely to be a significant issue moving forward as the state looks for ways to save money. Communities left without a courthouse will be faced with the significant inconvenience and expense of traveling to a neighboring court. The South Shore police chief estimates that closure of the Hingham courthouse would cost an additional $67,000 in police overtime and other costs. The chief in Middleboro also expects significantly higher costs.

Lost jobs in closing courthouses and longer lines on both the civil and criminal side of courthouses that remain open would also result from any significant effort at consolidation.

Continue reading "Court consolidations in Plymouth, Brockton and Stoughton could impact court services" »

President Obama's nomination for the United States Supreme Court, Elena Kagan was confirmed by a 63-37 vote of the United States Senate. Kagan replaces Justice Stevens. For a Massachusetts criminal defense lawyer, the composition of the Supreme Court is critical as the Court interpretation of the 4th, 5th and 6th Amendments shape the extent to which criminal defendant's enjoy the right of confrontation, the right to be free from unreasonable searches and seizures and the scope of the privilege against self-incrimination as defined in the decision of Miranda v. Arizona. Kagan's confirmation was opposed by Massachusetts Senator Scott Brown.

The Governor signed a measure into law on Friday that is aimed at making it easier for those accused or convicted of a crime to find employment, News 22 reported.

The Criminal Offender Record Information (CORI) reform will ensure that a person's criminal record does not include crimes for which they are accused but never convicted. The distinction makes it more important than ever to seek out the quality representation of a Massachusetts criminal defense lawyer.

Lawmakers who voted for the measure hope it will better allow defendants to put a matter behind them in cases where they are not convicted. "This is an opportunity for people who do not have an extensive or heinous crime on their record to get back in the workforce, be productive members of society," said Western Massachusetts Representative Brian Ashe.

Criminal convictions will also appear on your record for a shorter length of time: felony convictions will appear for 10 years from the date of release, down from 15 years; misdemeanor convictions will be sealed five years after your release, down from 10 years.

Murder and sex offense convictions remain in the system permanently.

And job applications will no longer be allowed to include a question about felony convictions during the initial, or first-level, screening process.

Continue reading "Expunging Massachusetts criminal records allowed by new Massachusetts law " »

The Massachusetts legislature amended the dangerousness hearing statute to essentially overrule the Massachusetts Supreme Judicial Court's decision in Commonwealth v. Thomas. In that decision, the SJC held that mere possession of a firearm does not allow the Commonwealth to hold a defendant without bail under the dangerousness statute because possession of a firearm in itself is not inherently dangerous. The court held that possession would have to be combined with some evidence that the individual intended to use the firearm in a dangerous fashion. Without such evidence, possession of an unlicensed firearm is essentially a regulatory offense, under the court's reasoning, that did not cause a substantial risk of harm to the public.

The Amendment to the statute means that any individual charged with a Massachusetts gun offense is likely to face a request by the Commonwealth that the defendant be held without bail for up to 90 days. Prior to Thomas, it was the routine practice in Bristol County District Court for the Commonwealth to seek dangerousness hearings in all gun cases.

When the Commonwealth requests a dangerousness hearing, a Massachusetts criminal defense lawyer can object to the request and if it is denied will then have the opportunity to cross examine the Commonwealth's witnesses in an effort to have the court deny the request. In some cases, where a defendant would likely be held on high bail, a dangerousness hearing can actually help a defendant by proving an opportunity to obtain a preview of the Commonwealth's testimony prior to trial.

Continue reading "Massachusetts legislature amends dangerousness hearing statute to overrule court decision " »