Massachusetts Criminal Defense Lawyer Blog

The United States Supreme Court heard oral argument in the case of Perry v. New Hampshire, on November 2, 2011, addressing the issue of whether the due process clause is violated when an identification is suggestive through no fault of the police, or with no State action. The filings of the Perry case can be found on the Scotus Blog. As a Massachusetts criminal attorney, the Perry case represents an important effort to ensure the reliability of identification testimony.

Under the due process clause, the United States Supreme Court has held in several cases, that the Constitution is violated by suggestive identifications. In United States v. Wade, 388 U.S. 218 (1967), the Court stressed that suggestive identifications provide a special problem for the criminal justice system. Modern day research and studies have demonstrated the problems with suggestive identification leading to wrongful convictions. The Innocence Project reports that suggestive identifications are the leading cause of wrongful convictions.

In the Perry case, the New Hampshire Court required the defendant to show that there was improper state action that led to the suggestive identification. In the Perry case, the identification testimony resulted when the victim came to the scene of the crime and saw the defendant speaking to another police officer. Unlike a case where the police conduct a line up or take a defendant to a victim and say is this the guy, in this case, the argument of the State was that there was no State action to create a suggestive identification to constitute a violation of due process.

The defense claimed that the witness could not identify the defendant from her window where she claims that she witnessed the crime, but only made the identification when she saw the defendant with the police officer, which the defense classified as an accidental show up.

At the oral argument, Justice Scalia pressed the defense counsel on the issue that unreliable identification testimony presents no greater problem than any other unreliable evidence and that if the court accepted the defendant's position would expand Constitutional challenges to all unreliable evidence. Scalia suggested that the Court did not mean that eyewitness evidence is unique as stated in prior decisions. You can click here to listen to the oral argument. From the oral argument, it did not appear as though there was strong support on the Court for the defendant's due process challenge to the identification.

Even if the United States Supreme Court rejects the due process challenge in Perry, as a Massachusetts criminal lawyer a defense attorney should still make a Perry type challenge under Article 12 of the Declaration of Rights.

The United States Supreme Court heard arguments in a case raising the issue of whether GPS monitoring violates an individuals Fourth Amendment right to be free from unreasonable searches and seizures under the Constitution. The case is United States v. Antoine Jones, and the filings from the case can be found on the Scotus Blog.

The criminal defense lawyers in the case allege that Jones' Fourth Amendment right to be free from unreasonable searches and seizures was violated when federal agents put a GPS tracking device on his car without his consent. The tracking resulted in the defendant being charged with federal drug charges. To read an excellent commentary on the case click here to read Shannon Bream's Article for Fox News.

The case addressed the issue of whether a warrant must be obtained under the Fourth Amendment before the State can monitor someone through GPS surveillance. In the case, the police obtained a warrant to monitor the activity of defendant Jones; however, the warrant expired, meaning that no valid search warrant authorized the GPS monitoring. The federal agents in the case installed a GPS tracking device on the defendant's car without his knowledge or consent.

The transcript of the oral argument did not reveal a clear direction that the court is likely to take in the case. Click here to read the transcript of the oral argument. The Court seemed troubled by the idea that the police could install a GPS tracking device on anyone's vehicle. However, the Court's questioning suggested that this may not necessarily be a 4th Amendment violation because there is no search or seizure. As to the issue of whether the GPS monitoring constituted a search, some of the questioning from the Justices suggested that because the police could monitor a person with constant surveillance, the GPS simply assists the police to make them more efficient.

Justice Sotomayor asked if under the governments theory the government could monitor every person through their cell phone. The Government suggested that may be unconstitutional because cell phones are kept on an individuals person and monitoring someone through their clothing might be unreasonable under the Fourth Amendment.

The defense lawyers argued that the GPS tracking constituted a search because of the large amount of data that is obtained. Justice Scalia suggested that the GPS monitoring while it may be unreasonable, may not constitute a search or seizure under the court's case law.

The court raised the question if it is okay for police to monitor someone through cameras than why is GPS monitoring not the same type of surveillance. Justice Scalia emphasized that the unreasonable prong does not take effect unless there is a search and the case law has held that there is no search when everything done is open to the public. The criminal defense attorney proposed that police should be required to get a warrant to use GPS tracking, absent exigent circumstances because of the GPS capacity to collect data that you could not realistically get.

As a Massachusetts criminal lawyer, I would expect that the court will hold that the installation of GPS tracking is not a search or a seizure based on the Court's current case law. While I disagree with this decision, under the United States Supreme Court's case law defining these terms and based on a view of the oral argument, it appears that the justices were heading in that direction.

Criminal defense lawyers should continue to argue that GPS searches violate the Massachusetts Declaration of Rights which in many cases has been interpreted to provide individuals with greater liberty than the federal constitution. While I believe that the court is going to leave GPS monitoring to the legislature, the court should hold that the attachment of the GPS constitutes a search and seizure as the Government is taking individual data without the consent of the individual. The act of installing the device constituted a seizure that should require probable cause and a warrant issued by a magistrate.

The United States Supreme Court is scheduled to hear arguments on October 31 2011 in the case of Lafler v. Cooper and Missouri v. Frye, that raises the issue of whether an a criminal defense attorney in Massachusetts, or any other state, can provide ineffective assistance of counsel during a plea negotiation when a defendant later receives a fair trial.

In the case of Cooper, he received ineffective assistance of counsel because his attorney told him that he could not be convicted of assault with the intent to murder, because the shots he fired were below the victim's waist. Based on this advice, Cooper claims that he went to trial and received a sentence eight years greater than the sentence he would have received had he accepted the original plea offer and was given proper advice as to the elements of the offense. To read the brief of Defendant Cooper you can click here.

In the Frye case, the defendant claimed he received ineffective assistance of counsel because his attorney did not communicate a plea offer to him which expired; the defendant received a harsher sentence when he entered an open plea in court. Under the proposed plea offer, that was not communicated, the prosecutor offered to allow the defendant to plea to a misdemeanor with a ninety day jail sentence recommendation. The defendant ultimately received three years as part of an open plea but claimed prejudice in being deprived the opportunity to plea to the misdemeanor offense as a result of counsel ineffective assistance in not communicating the offer. You can read the filings in the Frye case by clicking here.

The State in both cases, argued that there can be no ineffective assistance under the case of Strickland v. Washington, 466 U.S. 668 (1984) which set forth the standard for determining Sixth Amendment ineffective assistance of counsel claims. The State argued that the prejudice element of the Strickland test cannot be satisfied because the defendant received a fair trial in the Cooper case and could have went to trial in the case of Frye. The State argued that the conviction is not rendered unreliable and the defendant was not deprived of asserting any available defense to constitute prejudice under the Strickland case. Further, the State argued that the Court cannot fashion an appropriate remedy because the State had the right to withdraw or modify the offer. Accordingly, the State argued that creating a remedy would violate separation of powers by conferring on the courts the executive function of crafting plea offers.

The defendant's argued that consistent with the United States Supreme Court's Padilla v. Kentucky, 130 S.Ct. 1473 (2010) decision, courts are capable of fashioning a remedy for ineffective assistance in not communicating a plea. As a Massachusetts criminal lawyer, I would expect the Supreme Court to rule that courts can entertain ineffectiveness claims for plea agreements. The State is taking the narrow view of the Sixth Amendment as guaranteeing a defendant the right to effective assistance of counsel only during the trial stage; however the United States Supreme Court has made clear that the Sixth Amendment right to counsel applies at every stage during the process of a criminal case. Further, the Court recently held in Padilla that counsel is ineffective in not communicating the immigration consequences of a plea offer; accordingly, these cases are a natural extension of that doctrine that the duty to provided effective assistance of counsel encompasses the process of negotiating a plea agreement and properly communicating the implication of the plea to the defendant. I would expect a close vote in the case but I would not anticipate the court taking a bright line position but would allow the issue to be resolved by trial judges.

The case of Ricky Lee Allshouse, Jr. v. Pennsylvania is currently before the United States Supreme Court on a petition for certiorari. You can read the filings from the case on the Scotus Blog, by clicking here. As a Massachusetts criminal attorney, this case represent another important case interpreting the Sixth Amendment Right of Confrontation.

The Allshouse case involves an allegation of child abuse to an infant boy. The abuse was witnessed by the sister who told investigators that the defendant grabbed and yanked the infant. The State tried to admit the statement relying on a Pennsylvania statute allowing a prosecutor to introduce out-of-court statements in place of live testimony provided that the court finds that the statements was sufficiently reliable and the court declares the child unavailable.

At trial, the State introduced the statements through both the child abuse caseworker and a child psychologist. The Pennsylvania Supreme Court affirmed the conviction holding that the statements were nontestimonial. The Court found that the statement to the caseworker was nontestimonial because the possibility that the defendant caused injury to the child made it necessary for an immediate investigation. Surprisingly, the court held that the statement to the child psychologist was cumulative and did not reach the Sixth Amendment issue with regard to that statement.

The petition before the United States Supreme Court argues that the statements are testimonial in the same way as in the Hammond case because the child witness is recounting past abuse. The criminal defense lawyer for the defendant argues that the incident under investigation was even further removed in time from the incident than in the Hammond case.

As a Massachusetts criminal attorney, I would expect the United States Supreme Court to grant certiorari in the case. If the Court rules for the defendant, the decision would further define the ongoing emergency exception announced in Bryant and Davis.

The United States Supreme Court's decision in Michigan v. Bryant, decided today, diminishes the Sixth Amendment right of confrontation. The Court held that statements are nontestimonial and thus not covered by the Sixth Amendment confrontation clause when the primary purpose of the statement is to allow the police to respond to an ongoing emergency. The Court's opinion represents a substantial departure from the Court's recent cases of Crawford v. Washington, 541 U.S. 36 (2004) and Melendez Diaz v. Massachusetts, 557 U.S. __ (2009) both affirming that the Constitution requires face to face confrontation under the Sixth Amendment.

Four justices joined in this reasoning with Justice Thomas joining the majority based on the fact that the statement was not sufficiently formal to be testimonial. Accordingly, Justice Thomas defines the right of confrontation based on whether the statement is similar to the historical practices that the framers of the Constitution intended to curtail when drafting the confrontation clause.

The Bryant case is an unusual case as the police came upon a victim who was dying from a gun shot wound. The police asked the victim what happened and he identified the defendant as the shooter. The victim died, leaving his statements as the only evidence identifying the defendant is the shooter. The Court held that the circumstances of the emergency indicated that the primary purpose of the victim's statement was to help the police respond to an ongoing emergency of capturing the assailant. The Court held that a person in the victim's position would not have a purpose of identifying his shooter for future prosecution, but to assist the police in responding to the emergency. Further, the Court stressed that the primary purpose of the police was to respond to the medical emergency facing the victim. Additionally, the Court stated that the defendant's medical condition and the informal nature of the questioning was relevant in determining the primary purpose of the statement.

The Court's decision relied primarily on its precedent in Davis v. Washington, 547 U.S. 813 (2006) where the court admitted statements relating to domestic violence made to a 911 operator when the victim refused to testify at trial. The difference between the statements in Davis and Bryant is that the victim spoke to the 911 operator as the incident was occurring rather than at least 25 minutes after the incident as in Bryant. Accordingly, the court expanded the logic of Davis in the Bryant decision.

The Bryant decision is significant in that the Court is taking a pragmatic approach in defining the right of confrontation rather than relying on the literal interpretation of the Sixth Amendment as requiring face to face confrontation as stressed in the Courts' Crawford decision.

The decision is also significant because Justice Sotomayor wrote the opinion of the court and she was not on the Court at the time of the most recent confrontation clause case of Melendez-Diaz. Justice Kagan did not participate in the decision.

Writing in dissent, Justice Scalia argued that the Court's primary purpose test abandons the rationale of Crawford v. Washington and returns to the reliability test that the Court rejected in Crawford. Justice Scalia stressed that in court testimony is a solemn declaration that the declarant understands how the testimony may be used and the intent of the officer cannot substitute for the declarant's understanding of how his words may be used in court. Justice Scalia asserts that the balancing behind the primary purpose test allows judges to reach results based on what the judge perceives as fair. Further, Justice Scalia found that even applying the primary purpose test the victim's statement was testimonial because the statement had little value other than to ensure the arrest of the defendant.

As a Massachusetts criminal attorney, the Bryant decision is extremely significant because it shifts the Court's Sixth Amendment case law toward a balancing approach that is likely to result in more out of court statements being admitted into evidence without live testimony. Further, Massachusetts criminal lawyers will have significant pretrial hearings applying the court's balancing test to determine the admissibility of statements.

The United States Supreme Court declined to hear an appeal from Louisiana in the case of Barbour v. Louisiana which raises the issue of whether the Constitution requires a unanimous jury verdict to support a criminal conviction. Click on this link to read the filings from the case on the Scotus Blog.

Only two states Louisiana and Oregon allow a criminal conviction without a unanimous jury verdict. Massachusetts requires a unanimous jury verdict of all six jurors in district court and twelve jurors in superior court. Accordingly, if a Massachusetts criminal lawyer obtains a verdict that is not unanimous a mistrial results and the case can be brought to trial again.

The defendant in Barbour asserts that the Sixth and Fourteenth Amendment require a unanimous jury verdict. The petitioner in the case is represented by Jeffrey L. Fisher. The petitioners argue that the United States Supreme Court should overrule its decision in Apodaca v. Oregon, 406 U.S. 404 (1972) where the United States Supreme Court held that the Constitution does not require a unanimous jury verdict.

In Apodaca, the court held that a unanimous verdict was not required by a vote of 4-1-4, meaning that the majority of justices did not agree on the reasoning
for its decision. This is referred to as a plurality opinion.

Four Justices concluded that a unanimous jury verdict was not Constitutionally required. Four of the Justices also concluded that the Sixth Amendment to the United States Constitution does not require proof beyond a reasonable doubt. Justice Powell joined the four justices in finding that the Constitution did not require a unanimous verdict, but did so based on different reasoning. Justice Powell wrote that the Sixth Amendment requires a unanimous jury verdict in a federal trial, but held that the Sixth Amendment as applied to the States through the Fourteenth Amendment did not require that the federal and State right to a jury trial must be identical.

Justice Powell opinion reflected the selective incorporation doctrine where only certain provisions of the Bill of Rights apply to the States. This selective incorporation doctrine of Justice Powell was never accepted by a majority of the Court and was contrary to the case law. By the time of the Apodaca decision, the United States Supreme Court had already held that the right to counsel, right to jury trial, Fourth Amendment and exclusionary rule applied to the States.

The petitions in Barbour argued that the reasoning of Apodaca based on a functional assessment of the Sixth Amendment has been repudiated by the Court's current Sixth Amendment case law. The petitioners pointed to the United States Supreme Court landmark confrontation case of Crawford v. Washington which was based on the original understanding or original intent of the framers of the Constitution. Further, the petitioner cited the case of Apprendi v. New Jersey, 530 U.S. 466 (2000) which was based on providing the defendant a right to a jury trial as guaranteed by the common law.

As a Massachusetts criminal attorney, I am surprised that the Court declined to hear the case and address the Constitutional issue raised by the appeal.

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.

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.

The United States Supreme Court will hear oral argument in the Sixth Amendment Confrontation Clause case of Michigan v. Bryant on October 5th. In Bryant, a case from Michigan, the victim of a crime was injured from a gunshot wound and gave a description of the shooter to police. The victim died from the gunshot wound. The State admitted into evidence at trial the victim's statements to the police. The defendant was convicted and appealed to the Michigan Supreme Court which held that the defendant's right of confrontation was violated. The State appealed to the United States Supreme Court, which granted certiorari on March 1, 2010, 130 S.Ct. 2138 (2010).

The Bryant case raises the issue of whether statements to police by a witness experiencing a medical emergency are nontestimonial when made for the primary purpose of allowing the police to respond to an ongoing emergency when the perpetrator of the crime is still at large. The Court's resolution of Bryant will rely heavily on how the court interprets its prior decision of Davis v. Washington, 547 U.S. 813 (2006) which defined when a statement is testimonial under the Sixth Amendment.

In Davis, the United States Supreme Court held that statement made by a victim who called 911 to report that she was being subject to domestic violence were nontestimonial. The Court held that the victim's statements to the 911 operator were nontestimonial because the victim was speaking of events as they were actually happening and the statements were made as the victim faced an ongoing emergency and were made for the purpose of allowing the police to respond to the emergency.

In Davis, the 911 operator asked questions of the victim to establish his identity, whether or not he had been drinking and whether he had any weapons. This is significant as the 911 operator did not just passively receive information but actively obtained information that would assist in the prosecution of the defendant. The Davis Court held that statements were nontestimonial when made in the course of police interrogation under circumstances that objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. The Court held that statements are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove a past event potentially relevant to criminal prosecution.

The State in Bryant argued in its brief that the questioning of the injured victim was necessary to respond to an ongoing emergency to apprehend a dangerous suspect. The defendant's criminal defense attorneys argued in its brief that there was no ongoing emergency because the victim was found six blocks from the shooting and thirty minutes passed from the time of the shooting to the time of the statement.

The State will argue before the Supreme Court that ongoing emergency should be read broadly to encompass any emergency, that the criminal activity set in motion. In contrast, the defendant will urge a more limited interpretation of ongoing emergency to limit to circumstances where the victim is making a cry for help and seeking immediate assistance.

The Court should find that the defendant's Sixth Amendment right of confrontation was violated by the admission of the victim's statements. The victim's statements directly implicate the defendant in the criminal conduct after it had already occurred and the emergency to the victim had subsided.

There is no way for the defendant's criminal defense lawyer to challenge the reliability of the victim's statement's statements and accordingly, he is being denied his right of confrontation. The statements should be viewed as testimonial because the victim is speaking to the police with the sole purpose that the suspect be caught and prosecuted. Under the Davis case, the victim made the statements while the incident was ongoing; accordingly, under the ongoing emergency exception the court viewed these statements as nontestimonial. To expand the emergency exception to include situations when the suspect is at large, would violate the Sixth Amendment and misinterpret the court narrow holding Davis, which was limited to situations where the victim was still confronted with an emergency situation and reporting the details of the criminal activity as they were occurring.

The right to a public trial has been affirmed in a recent First Circuit Court of Appeals decision holding that trial judge's cannot deny access to the courtroom during any phase of a criminal trial, including jury selection. In the case of United States v. Agosto-Vega, decided August 18, 2010, the First Circuit Court of appeals, which hears cases arising from Massachusetts and Rhode Island, overturned a conviction of a violation of criminal provisions of the Clean Water Act when the trial judge denied family members of the defendant the right to be present during jury selection.

The 1st Circuit in Agosto-Vega found that space was available and the judge did not attempt to pursue other options that would allow the defendant's family to be present in the court during jury selection. Recent cases such as Presley v. Georgia, from the United States Supreme Court have affirmed a defendant's right to a public trial and denial of this right will result in the reversal of a criminal conviction. Under the Sixth and First Amendments to the United States Constitution, Massachusetts criminal defense lawyers should object to any attempt by a trial judge to close the courtroom during any phase of a criminal trial when there is room for the public in the courtroom. Even when a courtroom is full, the court has to allow the public to enter when seats become available. The Presley decision imposes strict limitations upon the ability of a trial judge to close the courtroom to the public. Criminal defense lawyers in Massachusetts may be able to obtain a new trial in the event of conviction if this right is violated.

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 " »

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" »

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 United States Supreme Court further limited the holding of its landmark case of Miranda v. Arizona in the case of Berghuis v. Thompkins decided on June 2nd.

In Miranda v. Arizona, the United States Supreme Court held that police must advise a defendant of the defendant's right to remain silent, right to attorney and the fact that statements could be used against the defendant prior to any custodial interrogation. In Thompkins' case, the police began to interrogate the defendant about a shooting. The Michigan police read the defendant his Miranda rights from a preprinted form. Most police departments in Massachusetts also use preprinted forms to advise a defendant of their rights. The defendant refused to sign the form and was asked to read one of the rights by the police officer. During the interrogation, the defendant was silent throughout most of the 2 hour and 45 minute interrogation. The defendant was asked by the officer if he prayed for the victim and asked for God's forgiveness for shooting that boy down. The defendant replied that he did. His confession was used against him at his trial, resulting in his conviction on the charges.

The defendant argued that his silence during most of the interrogation acted as an invocation of his right to remain silent and that the police should have stopped questioning him when he did not respond. The Supreme Court rejected this reasoning holding that a defendant must unequivocally invoke his right to remain silent.

The defendant next attacked the waiver of his right to remain silent by arguing that waiver of his rights under Miranda was not knowing, intelligent and voluntary. The majority opinion written by Justice Kennedy indicating that Miranda should not be interpreted to hold that a waiver of Miranda is difficult to establish absent a written or formal waiver. The Court held that there is no formalistic process that the State has to demonstrate to prove that a defendant waived Miranda rights other than that the accused made an uncoerced statement and understood his rights.

The Court found that Thompkins waived his rights under Miranda and understood those rights. Significantly, the court held that the fact that almost three hours passed from the time of the Miranda warnings to the incriminating statement did not mean that the statement should be suppressed. Further, the court held that the fact that the police appealed to religion did not make the confession coerced as the court held that the Fifth Amendment is not concerned with moral and psychological pressures to confess emanating from sources other than official coercion.
In a dissenting opinion, written by new Supreme Court Justice Sotomayor and joined by Justices Stevens, Ginsburg and Breyer, the dissent argues that the court's decision represents a substantial retreat from the Constitutional protections recognized in Miranda.

The dissent argued that the State did not satisfy the heavy burden of showing that the defendant waived his right to remain silent. Additionally, the dissent would hold that a defendant that continuously remains silent invokes their Fifth Amendment rights and their actions cannot be interpreted in any way other than indicating a refusal to speak to the police.

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The United States Supreme Court ruled in United States v. Comstock, decided May 17, 2010, that the federal prisoners can be detained after their prison sentence expires if they are deemed sexually dangerous. Under federal law, the federal government can file a petition to detain a federal prisoner after the expiration of a prison sentence if the Government can show by clear and convincing evidence that the prisoner is engaged in sexually violent activity or child molestation in the past and suffers from a serious mental illness.

The defendant's challenged the law as unconstitutional on a number of grounds, including that the law imposed additional punishment not authorized by the statute under which the defendant was convicted, violated double jeopardy, due process and exceeded the scope of the powers granted to Congress under the Constitution.

In upholding the law as Constitutional, the Supreme Court relied upon the necessary and proper clause of the Constitution, reasoning that the Constitution grants to Congress the powers to enact laws necessary for the public welfare.

The Court stressed that the Constitution did not give Congress explicit authority to create federal prisons, but they were created in order enforce federal law. Further, the court stated that as the custodian of federal prisoners, Congress has the authority to enact laws to deal with the dangers that federal prisoners may pose to the community. Accordingly, the court upheld the law as within the implied powers of Congress.

The flaw in the court's reasoning is that although the Court has relied upon the necessary and proper clause to uphold other acts of Congress, the Bill of Rights specifically deals with rights of criminal defendants, precluding a defendant from being tried twice for the same offense and the due process clause which prohibits a defendant from being convicted unless the Government proves its case beyond a reasonable doubt. Though the goal of Congress is appropriate, to protect the public, a defendant is essentially being punished for the same offense twice. The Double Jeopardy Clause requires that a defendant only be punished once for the same offense and due process requires that a defendant receive a sentence that is within the statutory maximum penalty for that offense. Essentially, a defendant is being subject to an enhanced punishment that is not limited by any criminal statute and that was unknown at the time of any trial or plea agreement.

Justice Thomas dissented from the court decision, arguing that the statute exceeded the enumerated powers of Congress. Justice Thomas' dissent is the better reasoned opinion; however, this issue is likely to reappear on the courts' docket as the majority opinion indicated that it was not addressing the defendant's equal protection or due process claims, which the court stated that the defendant's could pursue those claims on remand to the lower court.