Massachusetts Criminal Defense Lawyer Blog

A Quincy woman, Jamie Manning was arrested for allegedly selling oxycodone out of her home according to a news account in the Patriot Ledger. The case is interesting to me as a Massachusetts drug crimes lawyer because it raises significant issues of whether Manning's Fourth Amendment rights were violated by the police conduct in the case. It appears as though Manning was arrested based on the police witnessing individuals coming and going from the house for brief periods of times. The police often claim that these observations are consistent with a drug transaction.

Under the United States Constitution and the Massachusetts State Constitution, known as the Declaration of Rights, any search of a residence without a warrant is presumptively unreasonable. The police in Manning's case will have to justify the search of the house based on some exception to the warrant requirement. It is likely that the police will argue that they had probable cause to believe the house was being used for the illegal sale of oxycodone. The officer would likely rely on the fact that an individual leaving the house claimed to have purchased drugs in the house. The police would have no reason to credit the reliability or veracity of this individual. Additionally, there would be no justification for not obtaining a search warrant and allowing a magistrate to ensure that probable cause justified the search of the residence. To pursue this Constitutional defense, Manning's Massachusetts criminal lawyer will have to file a motion to suppress with the court to challenge the legality of the search.

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A North Attleboro man, Troy Casto, was charged in Attleboro District Court with violating a 209A domestic restraining order by allegedly sending text messages to his girlfriend minutes after being served with the order, according to a news account in the Attleboro Sun Chronicle.

It appears that Casto's Attleboro criminal attorney will argue that the text messages were sent prior to the order being served. The issue of proving when a text message is sent or proving who sent a text message is becoming more prevalent in criminal cases throughout Massachusetts. To prove the time a text message was sent would require a subpoena for the phone records of the cell phone provider.

In Casto's case it appears that he admitted to the police that he sent the text messages. In many cases, the issue of who sent a text message and how to prove who sent a text message will be difficult for the Commonwealth to prove in court at a trial. Recently, the Massachusetts Supreme Judicial Court in the case of Commonwealth v. Williams, 456 Mass. 857 (2010), ruled that the content of a myspace page was inadmissible without proper authentication. Like a myspace page, a Massachusetts criminal defense lawyer could object to any testimony that the a defendant sent text messages without a proper authentication and foundation demonstrating that the defendant had possession of his cell phone at the time the messages were sent.

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A Fall River man was arrested and charged with a Massachusetts gun crime after police claim he possessed a sawed-off shotgun. Scott Cambra was arrested along with Dana Mazyck when police claim that they found the gun behind Cambra's house according to a news account in the Fall River Herald News.

The police found the gun when executing a search warrant for the home. As a Massachusetts criminal lawyer, the Commonwealth would have to prove that the defendant constructively possessed the firearm as it was not found in the direct possession of either defendant. The defendant will claim that he did not possess the gun and did not know that it was in the yard. The Commonwealth appears to have a difficult case for constructive possession of the firearm. Typically in a constructive possession case, a firearm will be found in an area closely associated with the defendant such as in the defendant's bedroom or in the glove compartment of a car. In those cases, it is easier for the Commonwealth to prove that the defendant possessed the firearm as the firearm is in an area closely associated with the defendant's other possessions.

Here, there seems to be several avenues of defense for a gun crimes lawyer in Massachusetts. The news account suggests there is a dispute as to where the gun was found. Additionally, even if the gun was on the defendant's property, the Commonwealth would need other evidence that the defendant knew the gun was there and had the ability to exercise dominion and control over it. Finally, the criminal defense attorney would want to challenge the basis for the warrant allowing the police to search the residence under the United States Constitution.

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In many Massachusetts drug arrests, the police will claims as a basis for obtaining a search warrant of a residence that a confidential informant provided information that the residence was being used for drug trafficking or distribution.

As a Massachusetts drug crimes lawyer, it is sometimes necessary to file a motion to require the Commonwealth to disclose the identity of the informant in order to prepare a defense to the charges. In some cases, an informant may provide relevant information for the defense while in other cases a court order for disclosure may force the Commonwealth to dismiss the case rather than to disclose the informant's identity.

In Commonwealth v. Shaughessy, 455 Mass. 346 (2009), the Massachusetts Supreme Judicial Court held that in order to obtain disclosure of the identity of a confidential informant a defendant has the burden of showing that the informant would provide information that is material to the defense. If this showing is made, then the privilege can be overcome. The purpose of the privilege is to assist the police in obtaining information without the informant fearing retribution as a result of cooperating with the police. This privilege has limitations under the Sixth Amendment Confrontation Clause of the United States Constitution. The leading case on the issue of disclosing confidential informants in drug cases is the United States Supreme Court case of Roviaro v. United States, 353 U.S. 53 (1957).

Recently, the National Association of Criminal Defense Lawyers submitted an amicus brief to the Court of Appeals of Maryland in the case of Elliot v. State on the issue of whether the Maryland court improperly denied the defendant access to the identity of the confidential informant. Click here to read the brief of the National Criminal Defense Lawyers.

In Elliot, the defendant argued that there was no need for the privilege as the identity of the informant was already known and secondly that disclosure of the informant was necessary as a matter of fairness as the informant would potentially be a material witness for the defendant. In defending the charge of possession of drugs with the intent to distribute, the defendant in Elliot claimed that the informant entrapped the defendant and asserted as his defense that he had no knowledge that there were drugs in his car. Clearly, cross examination of the informant may provide strong evidence for the defendant in providing a motive for the informant to frame the defendant in attempt to gain favor with the police; further, disclosure of the informants identity would allow the criminal defense attorneys to gain other valuable discovery, such as the criminal record of the informant to uncover a motive to lie on the part of the informant.

As a Massachusetts criminal defense lawyer, I believe that the Maryland Court of Appeals should reverse the lower court's decision and its decision may provide valuable precedent in defending Massachusetts drug crimes. To read the decision of the Maryland Court of Appeals in Elliot v. State click here.

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An East Bridgewater man was arrested after allegedly taking more than $ 300.00 of merchandise from Lord and Taylor at the South Shore Plaza, according to the Brockton Enterprise.

Typically, in Massachusetts shoplifting cases a defendant charged with shoplifting will receive a notice of a clerk magistrate hearing. A Massachusetts clerk magistrate hearing is a hearing to determine whether a criminal complaint should be issued. The standard is whether the clerk believes there is probable cause that the criminal offense occurred. A clerk magistrate hearing provides the opportunity to resolve the case prior to it being brought in court and prior to it appearing on your criminal record. Accordingly, if you receive notice of a clerk magistrate hearing, you should hire an experience Massachusetts criminal defense lawyer immediately.

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A Taunton man, Kevin Callahan, was charged with trafficking in a Class B drug, Percocet and was also charged with possession with the intent to distribute a Class B drug and resisting arrest. According to the news report in the Taunton Gazette, the police had a search warrant for Callahan's house. The news article is unclear but it seems as though Callahan was stopped for an alleged traffic infraction and brought back to his residence while the police conducted the search.

As a Massachusetts drug crimes lawyer, this case raises some interesting issues for the defense. The first issue is whether the magistrate had probable cause to issue the search warrant. When the police obtained a search warrant, an officer is requiring to prepare an affidavit that is presented to a magistrate of the court who reviews the affidavit to determine whether there is probable cause to believe that criminal activity is occurring in the place to be searched.

In a Massachusetts drug arrest, The warrant will typically allege that the police made observations consist with the residence being used for drug transactions; in some cases, the affidavit will claim that a confidential informant purchased narcotics from someone at the residence.

In Callahan case, in addition to attacking the warrant, a Massachusetts criminal defense attorney may challenge the basis for stopping Callahan's car and for bringing him back to the house during the search. In many cases, a defendant will make damaging admissions while the police are searching the residence.

In the case of Michigan v. Summer, 452 U.S. 692 (1981), decided by the United States Supreme Court the court addressed the issue of when an individual can be seized prior to executing a search warrant. The court held that if an individual is around the residence, on the porch or close by the house, the police can detain the individual while the search is conducted. The court held that police safety, preventing flight if incriminating evidence is found and the orderly completion of the search justifies the limited intrusion on personal liberty.

It appears that Callahan may not have been anywhere near the residence at the time he was detained and brought back to the house. Accordingly, if he made incriminating admissions a motion to suppress his statements may be successful.

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The protection Massachusetts' statute of limitations affords defendants accused of past crimes took a hit last week when the state's high court ruled suspects identified via DNA evidence are not protected, the Boston Globe reported.

A Massachusetts criminal defense attorney should always be contacted when DNA evidence leads to an arrest. Typically, these will be serious crimes, such as rape or murder. Often, there is little or no remaining evidence other than the presence of DNA. In the weaker cases, law enforcement may approach a suspect for a statement prior to arrest. In other instances, a citizen's first inclination of an investigation could come at arrest. In either case, consulting an experienced attorney at the earliest opportunity is your best course of action. In neither case, should you cooperate with authorities -- a statement will be used against you by prosecutors and could conflict with a future defense strategy.

The Massachusetts Supreme Judicial Court unanimously concluded DNA can serve as the identity of the person indicted, even if a charging document lists John Doe. The ruling is similar to court decisions in five other states.

The case stems from a Massachusetts rape case in Suffolk County, where prosecutors have indicted 12 DNA profiles and were later able to put a name to some of the profiles and prosecute those individuals in cases where the statutes of limitations had no expired. The case the court decided was the first time authorities had put a name to a profile after the limitations had run out.

The defense lawyer in the case said the ruling means the court has essentially done away with statutes of limitation in cases involving DNA and that defendants could now face charges years or even decades later. Such cold cases are already inherently difficult because evidence is often lost or degraded, witnesses die or move away, memories fade and physical locations change.

The court said state lawmakers could provide added protection to defendants by changing the law, which has been done in several states. In those states prosecutors are provided with a limited amount of time to prosecute individuals once they have been linked to a DNA profile.

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A Fall River man, Eric Jordan, accused of lying to the police and failing to cooperate in a grand jury investigation, had his bail reduced by a judge of the Fall River Superior Court, according to a news account in the Herald News.

In a criminal case, whether felony or misdemeanor, a defendant's Massachusetts criminal defense lawyer has the right to appeal the amount of bail set by a judge of the district court to the superior court. This appeal is a de novo appeal, meaning that the superior court judge has discretion to reconsider the amount of bail without regard to the determination made by the district court. The superior court judge can lower the bail, keep it the same or raise the bail amount. In the case of Eric Jordan, the superior court judge reduced the bail from $ 50, 000 to $ 3, 000. It is not uncommon for superior court judges to reduce district court bail determinations. Accordingly, if you can post the bail set by the district court, you should have your Massachusetts criminal defense attorney appeal the bail determination to the superior court.

A well-known Guatemalan activist has been sentenced to six months in jail on sexual assault charges in New Bedford, Massachusetts, according to South Coast Today.

Anibal Lucas, 52, was convicted on indecent assault and battery and assault and battery after a complaint was filed by a 24-year-old Guatemalan woman, who said Lucas groped her. The woman said she had gone to Lucas for help after losing her job. A 19-year-old woman also accused Lucas of touching her leg and propositioning her but he was acquitted of those charges by a jury.

A New Bedford criminal defense lawyer should be contacted at the earliest stages of such investigations. Sex crimes often hinge on the testimony of the victim and the defendant. The accused should not speak with investigators before consulting an attorney. Frequently detectives will attempt to intimidate a suspect with the prospect of being charged with a sex crime, or conversely will approach him as though the complaint is little more than a nuisance, in an attempt to get a statement on the record. Such statements will not keep you from being charged, will be used against you in court, and could conflict with your defense strategy.

In this case the women testified that they came forward to prevent other women from being harassed. Lucas ran Organizacion Maya K'iche, a local nonprofit organization for Guatemalans which will remain open while he serves his jail sentence. As part of the conviction, Lucas will have to register as a sex offender and be monitored by a GPS bracelet. He also will not be allowed to return to the organization or to volunteer with any other group that works with immigrants.

The organization was founded in 1995 and provides help to the local Guatemalan community by providing Internet access, English classes and classes on workplace rights and other topics. Lucas and the organization played a major role in finding legal help for the 361 immigrant workers arrested in raids in March 2007.

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In many Massachusetts Sexual assault trials, a defendant will face a multiple count complaint that will allege sexual assaults occurring at different times and may face a complaint with two or more victims. In the case of Commonwealth v. Aguiar, decided by the Massachusetts Court of Appeals on November 1, 2010, the court held that the trial judge did not commit reversible error in denying a motion by the Massachusetts sex crimes lawyer to severe the sexual assault charges so that the defendant would have a separate trial regarding the allegations of each victim. The Massachusetts Appeals Court addressed the issue of when joining charges is appropriate.

Under Rule 9 of the Massachusetts Rules of Criminal Procedure, when offenses are related they shall be joined for trial unless joinder is not in the best interest of justice. The Appeals Court in Aguiar held that relatedness is when an offense is based on the same criminal conduct or episode or arise out of a course of conduct that constitutes a pattern or scheme. The Appeals Court found that the offenses were related because the defendant had a scheme of cultivating the trust of young girls that permitted him to commit the sexual assaults.

In Massachusetts sexual assault cases, trial and pretrial motions are often critical to a successful defense at trial. In this case, it appears that the judge should have severed the trial as the defendant was unfairly prejudiced by having to defend two separate sexual assault allegations in the same trial. I would expect the criminal defense lawyer to file a petition for further appellate review to seek to have the decision of the Appeals Court reversed by the Massachusetts Supreme Judicial Court

An article in the Hartford Courant states that the Hartford police have created a new domestic violence unit to attempt to reduce the high rate of domestic violence offenses. Statistics show that domestic violence accounted for one third of the aggravated assaults in the City in 2009. Domestic violence offenses have also risen in Massachusetts as reported by the Boston Globe.

In Massachusetts, domestic assault and battery crimes are treated extremely seriously in courts throughout Massachusetts. In some cases in Norfolk County in particular, district attorneys are specifically assigned to handle charges of Massachusetts domestic assault and battery. District attorneys are extremely reluctant to dismiss charges of domestic assault and battery and will attempt to prove the charges even if the complaining witness refuses to cooperate with the district attorneys office.

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