Massachusetts Criminal Defense Lawyer Blog

Bristol County District Attorney Sam Sutter's proposal to move trials forward even if the defendant fails to appear would be declared unconstitutional by the Massachusetts Supreme Judicial Court. In an effort to decrease the number of defendant's who fail to appear in court, the Bristol County District Attorney has proposed requiring defendants to sign waivers allowing trials to proceed without their appearance in the event of a default. This waiver would clearly be unconstitutional as courts indulge every presumption against waiver of constitutional rights. The so-called waiver for defendants that default would involve defendants waiving numerous constitutional rights, including the right to confront their accuser, right to testify, elect between a bench or jury trial and the right to effective assistance of counsel and a fair trial.

As a Fall River criminal lawyer, I can understand the frustration of the district attorney that cases cannot be resolved as a result of defendants failing to appear in court. However, District Attorney Sutter's proposal is an unconstitutional and would ultimately be unworkable. First, a defendant should simply refuse to sign the so-called waiver form. It would be inappropriate for a judge to raise or set a higher bail based on the district attorney attempting to obtain a waiver of a defendant's Constitutional rights.

As a Bristol County criminal lawyer, it would be inconceivable to have a trial without the defendant being present. First, there are certain fundamental decision that a criminal lawyer cannot make without consulting with the defendant, whether to proceed with a bench or jury trial and whether or not the defendant testifies. Clearly, allowing a trial to go forward without the defendant would deprive the defendant of the opportunity to testify and deny the defendant a fair trial. Further, there would be a natural tendency for the jury to find a defendant guilty based on the failure to appear as the jury would likely speculate as to the reason for the defendant not appearing.

District Attorney Sutter's proposal also underestimates the amount and time consuming collateral attack on convictions that would result. Defendants convicted would naturally challenge the conviction and argue that the reason for the default did not justify the severe sanction of the case proceeding to trial without the defendant's presence. Courts would be forced to litigate time consuming motions for new trial filed by Massachusetts criminal attorneys.

While it is understandable the desire to decrease the number of defaults to move cases, defendants defaulting are not the only cause of cases being delayed. It is not uncommon for police officers to fail to appear for trial and for the Commonwealth to seek continuance. Moreover, the Commonwealth frequently seeks continuance for numerous reasons, including unavailable witnesses and not having evidence that should have been obtained prior to trial. Finally, there are already mechanisms in place to deter defendants from defaulting, including the setting of bail.

I would not expect the waiver form to have much impact on future cases as defendants should not sign the form. The focus brought by the media report of the proposal may result in the district attorney seeking higher bail amounts for defendants with a record of defaulting for court appearances.

The United States Supreme Court, in the case of Harrington v. Richter, decided, January 19, 2011, held that a trial counsel was not ineffective under the federal habeas corpus statute, called the Antiterrorism and Effective Death Penalty Act of 1996, when his trial counsel did not pursue a defense involving forensic evidence. The opinion was written by Justice Kennedy with six judges joining in the opinion and Justice Ginsburg concurring in the judgment. The decision is notable for the extent to which the Court goes to narrow the scope of review under the federal habeas statute. The court stated that relief under the statute is only allowed when a state court decision is contrary to clearly established holding of federal law or it involves an unreasonable application of law. In addressing the claim, the court looked at whether the State court decision involved an unreasonable application of the United States Supreme Court decision on ineffective assistance of counsel, Strickland v. Washington, 466 U.S. 668 (1984).

The Court held that determining whether the State's court's decision was an unreasonable application of Strickland is different from determining whether counsel performance was ineffective had the case came before it on direct appeal. Accordingly, the court held that federal habeas relief is precluded as long as fair minded judges may disagree and further emphasized the difficulty for a defendant satisfying this standard by holding that when the standard is general, the more leeway courts have in reaching different outcomes.

The United States Supreme Court criticized the 9th Circuit Court of Appeals for reviewing the case as if it came before it on direct review rather than under the differential standard of the federal habeas statute. The court stressed that federal habeas relief is meant to be a difficult standard to satisfy. The Court underscored that the statute protects against extreme malfunctions in the criminal process and not against error that may result on appeal. The court justified this holding under the rationale that it preserves the sovereign power of the States to punish criminal offenders.

After addressing the proper standard of review, the court held that reasonable attorneys could disagree as to whether a forensic expert was necessary for the defense of the case. The court held that even if the claim were on direct review it might hold that counsel was not ineffective, but because the case was before it under the federal habeas statute, the issue was whether the State court's application was reasonable and the United States Supreme Court found that the state's court's decision was clearly reasonable under the Sixth Amendment ineffective assistance of counsel case law.

The way federal habeas relief would work for a defendant convicted of a Massachusetts criminal offense is as follows. First, the defendant would be convicted after trial, appeal to the Appeals Court and to the Massachusetts Supreme Judicial Court. If these appeals were all unsuccessful, a Massachusetts criminal attorney would file a petition for federal habeas relief in the Massachusetts federal district court, alleging that the decision of the State court denied the defendant a right under the federal Constitutional or was an unreasonable application of law.

Two Whitman residents are facing Massachusetts drug charges after a weekend raid on their third-floor apartment, according to the Enterprise News.

Shannon Hunter-Dutczack, 27, and Kevin Connor, 42, were arrested after an investigation that included authorities from West Bridgewater, East Bridgewater, Bridgewater and Whitman.

Police report seizing about 35 Percocet pills and 15 pills believed to be the tranquilizer Klonopin. The two also face charges of possession of marijuana after police report finding several ounces of the drug, along with $2,000 in cash and drug distribution paraphernalia.

A Whitman criminal defense attorney will certainly look at challenging the legality of the search in this case. He may also challenge the assertion that drug distribution paraphernalia was present. Simple drug possession typically carries less serious consequences than a charge that alleges dealing or intent to distribute.

The WEB Manor Crimes and Drug Task Force reports authorities continue to deal with a significant number of cases involving the abuse of distribution of Percocet, which is a prescription painkiller.

Both defendants were charged with possession and possession with intent to distribute a Class B drug (Percocet) and a Class D drug (marijuana), as well as conspiracy to violate drug laws.

The Patriot Ledger reports a third person was arrested at the scene for motor vehicle offenses.

Continue reading "Two face Massachusetts drug charges after apartment raid in Whitman uncovers Percocet, marijuana " »

A 20-year-old Massachusetts man is claiming self defense in the wake of a Wareham assault that has led to a manslaughter charge, according to the Enterprise News.

A Wareham criminal defense attorney should always represent a defendant facing Massachusetts assault charges, especially when there is an allegation of a dangerous weapon, a serious injury, or a death. It is not against the law to defend yourself or to win a fight. Unfortunately, investigations by law enforcement can be one-sided and focused on gathering evidence of a defendant's guilt. It can be up to a defense attorney to conduct an independent investigation and build a case for self-defense.

In this case, Richard Walling was a resident at White Pines Motel, where he said he was defending himself from two men. The victims suffered a total of 12 stab wounds, according to a medical examiner's report read in Wareham District Court this week.

Police say the victims were wearing masks, kicked in the door and held the defendant's girlfriend to the wall in the moments before the attack. Walling's defense attorney said the men were attempting to steal his client's $2,000 inheritance.

Both men died and Walling has been charged with manslaughter as prosecutors contend he used excessive force. One of the victims was carrying what looked like a 9 mm handgun, but was later determined to be a pellet gun.

A man identified as Ryan Lachance is accused of driving what would have been the getaway car. He is charged with obstruction of justice and is in jail in Plymouth, according to the Enterprise News.

Continue reading "Self-defense claimed in Wareham, Massachusetts assault that led to manslaughter charge" »

A Superior Court trial in Dedham has ended after a jury convicted a 49-year-old man of seven Massachusetts firearms charges, according to the Patriot Ledger.

Elston Bone of Randolph was arrested in 2007 after a domestic dispute at his residence. Police say he slapped his wife and strangled her unconscious. Police say he was not at home when they arrived, but that his wife lead them to a cache of weapons in the bedroom.

A Dedham criminal lawyer should be called at the earliest stages of a case involving gun charges or domestic violence in Massachusetts. These charges can turn very serious and can have a lasting impact on your quality of life. A conviction can prevent you from owning firearms and may even prevent you from holding certain jobs, particularly those in law enforcement or the military.

Bone was found guilty of illegal possession of a firearm, two counts of improper storage of a firearm, illegal possession of a rifle, improper storage of a rifle, and two counts of illegal possession of a shotgun. He is scheduled to be sentenced Jan.12.

Continue reading "Massachusetts domestic assault case leads to gun charges in Dedham" »

The Massachusetts Appeals court in the case of Commonwealth v. Amaral recently addressed the issue of what type of evidence that a defendant can submit to the court to prove the identity of the first aggressor under the Massachusetts Supreme Judicial Courts' decision in Commonwealth v. Adjutant, 443 Mass. 649 (2005).

Adjutant was an important case for Massachusetts assault and battery lawyers because it allowed a defendant to admit evidence of prior violent acts to prove who was the first aggressor when defending an assault and battery charge at trial.

The case of Commonwealth v. Amaral, decided January 6, 2010 by the Massachusetts Appeals Court arose out of the Fall River District Court and proceeded by way of a bench trial. The Fall River criminal lawyer in the case argued that he should be able to question the witness pursuant to the Adjutant case regarding the witnesses' participation in boxing and martial arts. The Massachusetts Appeals Court held that the trial court was correct to preclude this testimony because general participation in sports activities like boxing and martial arts is different from specific acts of illegal violence contemplated by the Adjutant case.

The defendant also appealed the restitution order set by the judge. A Massachusetts restitution order is an order of the court requiring a defendant after a guilty finding or plea to pay money deemed to be owned by the victim. Restitution orders can arise by either agreement or after hearing before the judge. If a restitution hearing is scheduled, the judge is not bound by strict rules of evidence as the Appeals Court held but can consider any reliable evidence. In this case the judge credited the testimony of the victims and ordered a substantial restitution based on the injuries that occurred as a result of the assault and battery.

As a Massachusetts criminal lawyer, it is generally advisable to try to agree on a restitution figure if possible with the victim and district attorney as judges will typically be sympathetic to the victim and are likely to award the restitution figure sought by the district attorney.

Continue reading "Proving self-defense during Massachusetts assault and battery trial " »

On January 12, 2011, the United States Supreme Court will hear oral arguments in the case of Kentucky v. King. This case addresses the issue of what test should courts apply when police conduct creates the exigent circumstances relied on as the exception to the warrant requirement. The briefs in the case can be found on the Scotus blog. Additionally, there is an excellent commentary of Orin Kerr. Click here to read the article of Orin Kerr. The United States Supreme Court is reviewing a decision of the Kentucky Supreme Court, which can be read by clicking on this link.

I will be attending the oral arguments in this case as I am being sworn in as an attorney to practice before the United States Supreme Court. As a Massachusetts criminal attorney, it will be a great honor to be in attendance for such an important oral argument that impacts criminal law. I will posted my impressions of the argument on this blog.

In the King case, an undercover police officer bought drugs from a suspect in an apartment hallway. The suspect went into an apartment; however, there were two apartments and the officers did not know which one the suspect entered. The facts of the case indicate there were two apartments one on the left and the other the right of the hallway. From the left apartment, the police smelled marijuana, knocked on the door of the left apartment, announced their presence and entered the apartment without a warrant. While waiting outside, the police heard movement in the apartment and believe that evidence was being destroyed and as a result the police enter the apartment and seize narcotics.

The defendant contends that the police did not knock but demanded to be let in to the apartment. It will be interesting to see how the court addresses the factual dispute as to what occurred during the oral argument. The United States Supreme Court grant Certiorari in the case only to address the issue of what test to apply when police conduct creates the exigent circumstances.

The defendant in King argued that the neither the odor of marijuana nor people moving around inside the apartment created exigent circumstances. As to the creation of exigent circumstances based on noise from within the apartment, the defendant argued that when the police bang on the door it is natural that there will be nose from within the apartment. Accordingly, the police cannot be allowed to enter without a warrant when the police conduct of banging on the door created the exigent circumstances.

The State argued that the court should adopt a lawfulness test used by the Second Circuit Court of Appeals that would hold that as long as the police act lawfully their conduct cannot be seen as creating an exigent circumstance. This is where the factual dispute regarding how the police announced their presence becomes an issue. The State of Kentucky contends that the police knocked and announced their presence and accordingly acted lawfully. The defendant asserts that the police banged on the door, demanding entry and accordingly acted coercive and threatening to enter the apartment.

The defendant argued that probable cause to believe that criminal activity is occurring in a residence is not enough to establish exigent circumstances under the United States Supreme Court's decision in Johnson v. United States, 333 U.S. 10 (1948). The defendant claimed that under Johnson the odor of burnt marijuana could not justify the exigent circumstances. Additionally, the defendant argued that people moving around cannot be equated to destruction of evidence. The defendant's brief rightly points out that if movement within the home can justify a warrantless entry than the court would be allowing for a serious deprivation of an individual's right to privacy within the home.

The defendant proposed the following test be adopted by the court: that police improperly create an exigent circumstance when they engage in conduct that would cause a reasonable person to believe that entry is imminent and inevitable. In King, the defendant claimed that by the officer's action of banging on the door, the officer created the exigency of people moving around, as the occupant of the home would have reasonably thought that entry of the police was inevitable.

As a Massachusetts criminal lawyer, the outcome of this case will have a significant impact in criminal cases, including drug and Massachusetts gun offenses. It seems surprising that the court granted Certiorari in this case as the facts appear to be in dispute making it more difficult for the court to use this case to define the exigent circumstance exception to the warrant requirement. I expect the court will use the case to announce the rule to be applied and believe that the rule suggested by the defense attorney is more consistent with the intent of the Fourth Amendment.

A Worcester man faces charges of breaking and entering in Westborough and larceny of a firearm after authorities say be broke into the home of an acquaintance and stole a handgun, according to the Westborough News.

An experienced Westborough criminal defense lawyer should always handle cases involving the allegation of stolen weapons. Massachusetts Law (Chapter 266 Sec. 30), provides for up to 5 years in prison and a $25,000 fine for those convicted of theft of a firearm. Additionally, possession of a firearm by a convicted felon and other legal complications often increase the penalties for crimes involving firearms.

Daniel Tenanes, 24, of 54 White Street, pleaded not guilty at arraignment in Westborough District Court and has been released on $1,000 bond. He also faces charges of larceny of property worth more than $250, reckless driving to endanger and failure to stop for a police officer.

Police say he broke into a Ruggles Street home through an unlocked door at about 11 p.m. on Friday. The resident came home to find the defendant's car idling in the driveway and reportedly discovered him upstairs in the house with the homeowner's Walther .38-caliber semiautomatic handgun, 58 rounds of ammunition and a gold necklace valued at $2,000.

Tenanes allegedly fled the scene. Police attempted to stop his car at shortly after 7 p.m. on Saturday but lost the car as it drove into Grafton during a brief pursuit. He was stopped and arrested by Grafton police a short time later. Police report he was in possession of the gun, ammunition and necklace that were reported stolen.

He is due back in court for a pretrial hearing on Jan. 21.

Continue reading "Worcester man faces larceny of firearm charge in Westborough" »

One of the first issues facing any Massachusetts criminal lawyer in representing a client charged with a criminal offense is whether the court will require the setting of a cash bail or impose conditions of release upon an individual. In most case, when a criminal defendant has little or no record and faces minor charges, a defendant will be released without having to post any cash bail; this is referred to as personal recognizance, meaning that the defendant has promised to appear before the court on the next date set by the court, typically a pretrial conference date.

The case of Commonwealth v. Shaun Madden decided by the Massachusetts Supreme Judicial Court, raised the issue of whether a defendant could appeal the decision of a district court judge setting conditions of release when no cash bail is set. In the case of Shaun Madden, the defendant appealed the decision of the district court placing him on GPS monitoring as a condition of his release and imposing a curfew.

The Massachusetts Supreme Judicial Court held that the superior court has the power to modify any condition imposed on a defendant as a condition of release. Interpreting the Massachusetts bail statute, G.L. c. 276 § 58A, the court held that the plain language of the statute authorizes a defendant to seek review of any bail determination or condition of release as the statute states that if a defendant is not released from custody on personal recognizance then the defendant is entitled to appeal to the superior court. The SJC emphasized that being released on personal recognizance is not the same as being released subject to conditions as conditions of release can impose substantial deprivations of an individual's liberty.

Continue reading "Bail in Massachusetts and appeal to the Massachusetts Superior Court " »

As a Brockton Criminal defense lawyer, a recent case from the Florida Supreme Court raises significant issues regarding when and how police must provide Miranda warnings under the Constitution. The case of Ross v. State, is a case where the defendant was convicted of first degree murder of his parents and sentenced to death. A key component of the State's evidence was the defendant's confession to the murder. The Florida Supreme Court reversed the conviction and ordered a new trial holding that the police violated the defendant's rights under Miranda by not providing him Miranda warnings until after he made a confession; the defendant was then given Miranda warnings and again made inculpatory statements. The State of Florida has filed a petition for certiorari with the United States Supreme Court in order to attempt to reverse the decision of the Florida Supreme Court and uphold the jury verdict. The filings in the Ross case can be found on the Scotusblog.

As a Massachusetts criminal defense lawyer, the Ross decision is noteworthy in several respects. The court found the defendant first inculpatory statement custodial applying the test articulated by the United States Supreme Court in Yarborough v. Alvardo, 541 U.S. 652 (2004) where the court looks to the circumstances surrounding the interrogation and whether a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave.

In a Massachusetts criminal case involving an issue of a custodial interrogation, the court would apply the factors set forth in the case of Commonwealth v. Bryant, 390 Mass. 729 (1984).

1. the place of the interrogation
2. Whether the investigation has begun to focus on the suspect
3. The nature of the interrogation whether it was aggressive or, instead, informal and influenced in its contours by the suspect; and
4. whether, at the time the incriminating statement was made, the suspect was free to end the interview by leaving the locus of the interrogation as evidenced by whether the interview ended with the arrest of the defendant.

The Florida court applied a similar test and found that all of the factors favored a custodial interrogation in that the defendant had to endure a long interrogation where he was confronted with evidence of his guilt in a highly confrontational manner without having the benefit of Miranda warnings prior to his confession.

After obtaining an incriminatory statement, the defendant was provided Miranda warning and subsequently made a second incriminatory statement. To determine whether this statement was admissible the Florida Supreme Court applied the case of Oregon v. Elstad, 470 U.S. 298 (1985) and Missouri v. Seibert, 542 U.S. 600 (2004), both from the United States Supreme Court.

The Elstad case addresses the issue of a statement prior to Miranda warnings followed by the police providing the warnings and then the defendant making a second incriminatory statement and would allow the second statement into evidence if a careful and thorough administration of the Miranda warnings is given and the rights are waived. This rule of allowing a late administration of the Miranda warning to be cured applies only if the police do not intentionally delay providing Miranda warnings to obtain an incriminatory statement. The Florida court found it significant in its analysis that the police downplayed the importance of the Miranda warnings in order to compel the defendant to repeat his earlier confession. The Florida Supreme Court concluded that the later statements could not be admitted into evidence because the delay in giving the Miranda warnings was designed by the police and the police downplayed the significance of the warnings once given.

Continue reading "Brockton, Massachusetts criminal defense lawyer comments on recent decision involving Miranda warnings from the Florida Supreme Court. " »