Massachusetts Criminal Defense Lawyer Blog

Defendants, at least in New Jersey, will be less likely to be convicted based on faulty eye-witness testimony, thanks to a sweeping new set of rules handed down by the New Jersey Supreme Court. The decision is New Jersey v. Henderson and can be found by clicking this link. The decision of the New Jersey Supreme Court is a landmark decision that hopefully will be followed by other state and federal courts. The success in this case of the defendant in this case was based on large part on the work of the Innocence Project in bringing the problems with eye witness identification to the attention of the Court.

Massachusetts criminal defense lawyers understand eyewitness testimony can sometimes be difficult to overcome at trial. Often believed by juries, it remains among the most unreliable forms of testimony the state can produce in securing a conviction. Trial defense in Massachusetts requires aggressively challenging the recollections and other evidence presented by witnesses to a crime.

The New Jersey Supreme Court ruled a judge must hold a special hearing on the issues whenever the defense presents evidence that a witness may have been influenced by police or by other means. Other factors could include lighting, the passage of time between the crime and recollection, or whether the victim was under stress at the time of the identification.

Imagine a crime. Whether robbery, burglary or assault. The recollection of eyewitnesses is just one piece of a prosecution's case. Having a defense attorney in Massachusetts who understands the issues and knows what it takes to challenge the evidence can have a drastic impact on a defendant's case.

The court ruled when such disputed evidence is admitted, the judge must give detailed instructions to jurors on factors that could result in misidentification. While the new rules are only applicable in New Jersey, court watchers say the ruling could begin having an impact nationwide.

The New Jersey high court has long been at the forefront of criminal law. The 134-page unanimous decision was penned by the court's chief justice, Stuart J. Rabner. It called for a revision of the 34-year-old U.S. Supreme Court decision that outlined the test of reliability for eyewitnesses.

A special master assigned to study the issue estimated there have been more than 2,000 studies about the reliability of eyewitness testimony since the Supreme Court decision in 1977.

"Indeed, it is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country," Rabner wrote."

Factors a judge should consider in establishing the credibility of an eyewitness include:

-Whether a weapon was visible during a crime.

-The amount of observation time.

-Distance between witness and suspect.

-Witness alcohol or drug use.

-Length of time between incident and identification.

-Whether the eyewitness and suspect are of different races.

Continue reading "Eyewitness Testimony Requires Aggressive Challenge of Massachusetts Criminal Attorney " »

The Massachusetts Appeals Court upheld the search of a residence in a recent Brockton Drug Distribution case. In Commonwealth v. Monteiro, decided on August 22, 2011, the police conducted five controlled drug buys. A Controlled drug buy in Massachusetts is when the police have an informant purchase drugs in attempt to establish probable cause to search a vehicle or residence for drugs, such as cocaine, heroin or other illegal narcotics. Click here to read the decision in Monteiro.

In the case of Commonwealth v. Pina, 453 Mass. 438 (2009), the Massachusetts Supreme Judicial Court held that evidence of drug distribution from a vehicle, did not necessary provide a nexus to establish probable cause to search a residence. The Appeals Court distinguished Pina on the grounds that the Brockton police conducted five controlled buys and made observations of the defendant coming from and returning to his house after each drug transaction with the confidential informant. The Court held that there was probable cause to infer that the defendant was using his house as a distribution center for narcotics.

In Massachusetts drug arrests, it is common for police officers to attempt to obtain a search warrant for a residence of someone believed to be involved in drug distribution or trafficking. The Monteiro case is unique in that the level of police observations was much greater than in most cases where the police will rely on one controlled buy. Accordingly, in many Brockton drug crimes, with a less detailed investigation, a motion to suppress may be successful as the evidence in support of probable cause in Monteiro was fairly substantial.

Massachusetts drug charges of possession with the intent to distribute were brought against two Rhode Island men, Alexander Rivera and Jorge Diaz. The arrest in this case raises significant Constitutional issues that may provide a defense to these Massachusetts drug charges.

According to a news account in the Milford Daily News, a State trooper provided a tip to Franklin detectives about a possible drug deal. The trooper claimed that he saw a drug transaction every day for three days, each conducted by men in the same vehicle.

Franklin, Massachusetts police detectives saw a hand-to-hand drug deal on Beach Street and questioned the buyer. It is unclear from the news account but the police likely asked the buyer where he got the heroin and he pointed to the defendant's in the grey Ford.

The Massachusetts drug defense would arise from the seizure of the defendant's vehicle. The argument would be that the police did not have reasonable suspicion or probable cause to make a search at this point. First, the statement of the alleged buyer of narcotics would have no indicia of reliability to justify a seizure without a warrant. Second, police seizures based on alleged hand to hand drug transaction must be in conformity with case law on drug crimes from the Massachusetts Supreme Judicial Court in a decision known as Commonwealth v. Kennedy. This case is the leading case on hand-to-hand drug stops and the Constitutional limits of police conduct in this area.

Continue reading "Massachusetts Drug arrest from the Wrentham District Court result in two suspects released on cash bail" »

A Framingham, Massachusetts domestic assault and battery charge was brought against Denis Deleon, based on allegations that he committed an aggravated assault and battery against his girlfriend. The defendant was charged with an aggravated assault and battery because it was alleged that his girlfriend was pregnant. It was alleged that the defendant put a knife to the victim's stomach and threatened to cut her and her unborn child, according to the news report in the MetroWest Daily News, by Norman Miller.

Deleon was initially held without bail pending a dangerousness hearing. The Court held a dangerousness hearing and found that the defendant was not a danger and released him on his promise to reappear in court. A dangerousness hearing is a hearing held to determine whether a defendant should be held without bail. Click here to read the dangerousness statute, Chapter 276 Section 58A.

As a Framingham criminal lawyer, one benefit of a dangerousness hearing is that the Commonwealth has to present live testimony in support of the request. In this case, the hearing demonstrated that the Commonwealth had a weak case of domestic assault against the defendant.

At the hearing, the alleged victim did not testify and the police could not be sure what caused the red mark on the victim's stomach and no fingerprint evidence was conducted to determine if the defendant held the knife. The judge denied the dangerousness request as this is a high standard requiring that the Commonwealth demonstrate that no condition of release can reasonably assure the safety of the victim or the community.

Continue reading "Dangerousness request denied in Framingham Domestic Assault charge " »

A Swansea man once convicted of killing his girlfriend's 4-year-old son will get a new trial after his most recent retrial was interrupted by the alleged victim's father, The Herald News reports.

The situation happened recently at Fall River District Court, where Eric Durand of Swansea faces a charge of first-degree murder. He was convicted in 2006, but the Massachusetts Supreme Judicial Court overturned the conviction on appeal. During jury selection recently, the boy's father disrupted the process, leading to his arrest. But the trial will go on.

Murder charges in Boston and throughout Massachusetts are the most serious a person can face in the Commonwealth. According to the laws of Massachusetts, Chapter 265, Section 1, murder is carried out with "deliberately premeditated malice aforethought, or with extreme atrocity or cruelty, or in the commission or attempted commission of a crime punishable with death or imprisonment for life."

While Massachusetts abolished the death penalty in 1984, murder is punishable by life in prison without parole.

Whether murder, or other serious felony charge, this case shows the importance of the appeals process and of the guarantee that every defendant has the right to a fair trial. That's why hiring an experienced Fall River Criminal Defense Attorney is essential. In the event a conviction occurs, an experienced defense lawyer will understand the importance of preserving various issues for appeal. In some cases, a defendant can't get a fair trial -- and the impartiality of the appeals court will be critical in seeking justice.

According to the news article, Durand was convicted of killing Brendon Camara by crushing his stomach to the point that his small intestine detached from his stomach and his pancreas split. Durand was allegedly babysitting the boy and his twin brother at the time.

After being convicted in 2006, the high court overturned it and granted him a new trial after ruling a doctor shouldn't have been allowed to be an expert witness because he hadn't performed an autopsy on the child. Expert witnesses are deemed so by a judge at trial after hearing proof of such qualifications presented by an attorney -- in this case the prosecution. The importance of having an expert witness is they are able to give opinions and tend to have more weight with jurors.

So, Durand is scheduled to go to trial a second time, despite interruption by the boy's father, who was recently arrested on a charge of criminal contempt for entering the courtroom during jury selection despite a judge ordering him to leave, the newspaper reports. He was being held on $2,000 bail and if he makes bail he won't be able to attend the trial. He will also have to wear a GPS tracking device and won't have to leave his Fall River home. Camara was part of a group protesting outside the courthouse, according to the report.

Cases involving allegations of child abuse are among the most high-profile and high-emotion cases that occur in our justice system. And because of the attention they get in the news media, an experienced lawyer must be hired in order to fend off the allegations in court as well as in the public eye. While the defendant is only tried in the courtroom, media attention can influence prospective jurors and the opinions of the general public.

Continue reading "Swansea Man Faces Retrial in 2003 Beating Death of 4-Year-Old" »

In an article in the Patriot Ledger today, Wendy Murphy wrote an editorial regarding Governor Deval Patrick's alleged silence on domestic violence. The article does not accurately describe how domestic assault and battery cases are handled in Massachusetts and suggests that if a victim does not wish to proceed, then the Commonwealth will automatically drop the charges. True, domestic assault and battery charges may be dropped if a victim is uncooperative, but that does not occur without a battle being fought by prosecutors. Prosecutors in Norfolk and Bristol Counties do not drop domestic assault charges until the day of trial. If the victim has a martial privilege or Fifth Amendment privilege, the Commonwealth cannot legally force the victim to testify in court. If there is no privilege, prosecutors can compel the victim to testify.

The Article is simply wrong when it states that it is the victim's choice whether to proceed with the case. Additionally, prosecutors in Massachusetts domestic assault cases have been aggressive in attempting to prove domestic cases without the cooperation of the alleged victim, by relying on admissions of the defendant and by attempting to admit the 911 call of the complaining witness into evidence under recent United States Supreme Court case law.

The suggestion in the Article that prosecutors are soft on Domestic assault and battery charges in Massachusetts, ignores the hard work prosecutors put into these difficult cases and the special attention that the Norfolk County District Attorney's Office, in particular, has placed on these cases.

The alleged attackers of a man beaten at the Comcast Center in Mansfield entered innocent pleas in Attleboro District Court recently, The Sun Chronicle.

The newspaper reports that the 19-year-old victim was beaten so badly he was initially put into a medically induced coma at Boston Medical Center to aid his breathing.

Doctors also removed a spleen ruptured from repeated punches and kicks, the article states. The six suspects are charged with felony assault charges.

Felony assault charges in Attleboro are typically filed when a weapon was used or when the defendant suffers serious injuries.. How charges are filed can have a big impact on a sentence. An experienced Attleboro Criminal Defense Attorney can sometimes succeed in arguing for lesser charges.

According to the news article, the beating happened during a Tim McGraw concert and one witness described the beating as being so loud she could hear it over the music. The victim said he made a comment to a woman about her tattoo before he was attacked by several people he didn't know. Witnesses allegedly pointed out the suspects.

All six are charged with aggravated assault and battery with disorderly conduct. Anderson is also charged with aggravated assault and battery by means of a dangerous weapon -- a shod foot -- according to the article.

Some of the suspects say witness accounts vary, which may make the case tough for prosecutors. Another says they may have been involved in a fight, but not the larger beating alleged by police. Self-defense is being alleged as well.

In cases where there are many witnesses and many suspects, the facts can be difficult to prove. Being able to show, beyond a reasonable doubt, that each particular suspect was involved, can be a tall order.

Many times, the state will try to convince some of the least-culpable defendants to enter into a plea agreement in exchange for a lighter sentence so that prosecutors can use their testimony against the co-defendants. If the alleged suspects didn't provide statements to police, it only bolsters their case because they haven't implicated each other in the crime.

Assault and battery charges in Massachusetts can be punished by up to 2 1/2 years in prison and a $1,000 fine. Assault or battery with a dangerous weapon is a felony punishable by up 10 years in prison. It's obvious that these charges are serious and can have long-term implications.

In this case, one of the defendants is charged with using his foot as a dangerous weapon. It can be debated whether or not a person's foot should be considered a "dangerous weapon." If not, it's possible to have the charge downgraded to a less-serious charge or have it thrown out altogether.

That's why hiring an experienced attorney is critical. Debating the issues, investigating the facts and finding holes in the state's cases can make a big difference in whether a defendant is convicted and the potential penalty he serves.

Continue reading "Six Enter Innocent Pleas in Connection With Mansfield Beating" »

The Massachusetts Supreme Judicial Court applied the "primary purpose test" articulated by the United States Supreme Court in Michigan v. Bryant, 562 U.S. ___ (February 28, 2011) in its recent decision of Commonwealth v. Beatrice. The Beatrice case demonstrates the dangerous erosion of the Sixth Amendment right of confrontation in domestic assault and battery cases. Click here to read the SJC opinion in Beatrice.

The Beatrice decision involved a very common circumstance in Massachusetts domestic assault cases where at the time of trial the alleged victim no longer wishes to testify and asserts either a Fifth Amendment privilege against self incrimination or exercises their martial privilege.

In cases with 911 calls, the Commonwealth can attempt to proceed with the case despite the noncooperation of the victim. The outcome of the trial will largely depend on the judge's ruling as to the admissibility of the 911 call and the application of the United States Supreme Court decision in Bryant and Davis v. Washington, 547 U.S. 813 (2006).

In Michigan v. Bryant, the Supreme Court defined nontestimonial statements, not requiring the right of confrontation, as those statements when made in the course of a police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet and ongoing emergency. The Supreme Court defined testimonial statements when circumstances objectively indicate that there is no ongoing emergency and that the primary purpose is to prove a past events potentially relevant to criminal prosecution. The Beatrice case directly raised the issue of the duration of the emergency and defining whether the right of confrontation applies to a statement having a dual purpose, to acquire medical attention and arrest the accused.

The United States Supreme Court in Bryant, confronted a situation where the victim had just been shot, was lying on the ground and was confronted by the police with the location of the assailant unknown. In that case, the Court stated the existence of an ongoing emergency is relevant to determine the primary purpose of the interrogation because an emergency focuses the participants on something other than proving past events potentially relevant to criminal prosecution. The Court added that "it focuses them on ending a threatening situation."

Significantly, the Bryant Court in interpreting Davis and Hammon stressed that because Davis and Hammon were domestic violence cases, the court focused only on the threat to the victim in assessing the ongoing emergency from the perspective of whether there was a continuing threat to them. The Bryant Court held that the scope of the emergency is in part defined by the type of weapon employed and because the defendant in Hammon was armed only with his fists, removing the victim from the situation ended the emergency unlike if the defendant had a gun.

In Beatrice, the facts suggest that there was no ongoing emergency and the SJC's broad interpretation of ongoing emergency would allow any complaint to the police close in time to the incident to come into evidence without the opportunity for cross examination. This represents a serious erosion of the right of confrontation and the right to a fair trial.

The alleged victim in Beatrice was no longer at the scene of the incident but was at a friend's house; the facts of the case suggest the emergency was over because the victim was not around, she was in a different apartment and was no longer alone with him. The victim stated on the 911 call that she had been severely beaten, that it was urgent for the police to come her apartment because he was about to leave. The victim asked for a police car to stop the defendant and for an ambulance.

In a dangerous expansion of the primary purpose test, the SJC indicated that in a domestic assault and battery case it is reasonable to conclude that the ongoing emergency continues until the police arrive. The SJC stated "even if the assailant is not armed, a reasonable person would recognize that an enraged boyfriend might force entry into the neighbor's apartment, or lie in wait until the victim leaves in an attempt to do future harm.

The reasoning of the SJC is contrary to the clear language in the Bryant and Davis decision regarding the scope of the ongoing emergency. If the Massachusetts criminal lawyer filed a petition for certiorari to the United States Supreme Court, it would present the court with a clear opportunity to determine the scope of the ongoing emergency when determining whether a statement is testimonial or nontestimonial.