Massachusetts Criminal Defense Lawyer Blog

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

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

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

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

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

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

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.

Continue reading "United States Supreme Court limits Miranda in the case of Berghuis v. Thompkins " »

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.

President Obama nominated Elena Kagan to replace Justice John Paul Stevens on the United States Supreme Court. Kagan must be confirmed by the United States Senate, which will hold confirmation hearings in the coming months.

Kagan, the former Dean of Harvard Law School, was serving as solicitor general prior to her appointment. The Solicitor General argues on behalf of the United States Government before the United States Supreme Court. Kagan has never been a judge in her legal career. Opponents of her nomination will argue that she does not have the experience to sit on the highest court in the United States without any prior experience as a judge.

Massachusetts criminal defense lawyer will watch the nomination process carefully as the choice of a Supreme Court nominee will have a major impact on how the court interpreters Constitutional rights of criminal defendants.

The United States Supreme Court has ruled that criminal defense attorney, in Massachusetts and throughout the United States must advise defendants of the immigration consequences of criminal convictions. Failure to do so, the court noted, deprives the defendant of effective assistance of counsel as guaranteed under the Sixth Amendment to the United States Constitution. The United States Supreme Court's holding arose from the case of Jose Padilla v. Kentucky.

Jose Padilla was a lawful permanent resident of the United States for more than 40 years. Padilla entered a guilty plea to transporting a large amount of marijuana. Padilla's attorney informed him that there would be no immigration consequences to his plea which was incorrect advice as federal immigration law clearly indicated that Padilla was pleading guilty to an offense that could result in deportation.

In an opinion written by now retired Justice Stevens, the United States Supreme Court held that Padilla did not receive effective assistance of counsel as a result of his attorney failing to properly advise him of the immigration consequences of his plea. Padilla's case presented in easy case for the majority of the court as the immigration consequences were clear and the attorney's advice was wrong. The court noted that in many cases the immigration consequences will be uncertain and in those cases, a criminal defense lawyer will only have to explain that the plea may have immigration consequences. However, the court underscored that if the immigration consequences of the plea are clear then a criminal defense lawyer has a duty to provide correct advice regarding immigration consequences.

Justice John Paul Stevens is stepping down from the United States Supreme Court, leaving President Obama to pick another Supreme Court Justice. Justice Stevens was appointed to the court in 1975 by President Ford. He was considered a liberal justice and wrote many opinions strongly affirming individual liberties, civil rights and upholding constitutional protections for criminal defendants. The departure of Stevens is unlikely to shift the court as President Obama will likely pick a justice with similar views as Justice Stevens. As the court stands now, there are four conservative justices, four liberal justices and Justice Kennedy is considered a swing vote in many cases.

In the recent landmark United States Supreme Court confrontation clause decisions, Justice Stevens voted with the majority in both Melendez-Diaz v. Massachusetts and Crawford v. Washington. The confrontation clause has been an area of Constitutional law where liberal and conservative labels have not been an accurate predictor of voting as Justice Scalia voted with the majority in Melendez-Diaz while the normally liberal justice Breyer dissented from the court's ruling. Accordingly, in this crucial area for Massachusetts criminal defense lawyers, the Supreme Court's interpretation of the Sixth Amendment right of confrontation, a new justice could alter the voting majority in the court's Confrontation Clause jurisprudence.