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March 31, 2014

Appeals Court Reverses Shooting Conviction Based on Insufficient Evidence

In Commonwealth v. Lobo, the defendant was convicted of two counts of assault and battery by means of a dangerous weapon, after he was tried for the shootings of two brothers on Hancock Street in Brockton in 2005. At trial, the Commonwealth called only one eyewitness to testify. That witness, the victims' father, testified that he heard rapid gunshots fired while a white car was driving in front of him and his sons. He did not see a gun, a muzzle flash, or the faces of any of the people in the car. He was unable to say whether the gunshot sounds had come from the area of the white car, but assumed that they had.

The father further testified that when the white car drove away, he discovered that his sons had both been shot. He then heard the car return at a high speed and a car door open. He momentarily saw a male, who he later identified as the defendant, standing outside of the car. The father testified that he then heard two or three more shots fired, but he could not tell where those shots had come from. He never saw a gun in the defendant's possession.

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March 24, 2014

'Dangerous Weapon' Not Necessarily a 'Deadly Weapon' for Purposes of Enhanced Sentencing Statute

In a recent unpublished opinion, the Massachusetts Appeals Court reversed a judgment against a criminal defendant who had been sentenced by a superior court judge under the sentencing enhancement provisions of the Massachusetts Armed Career Criminal Act (ACCA). In relevant part, the ACCA applies to any person who has been previously and in separate instances been convicted of three violent crimes, or three serious drug offenses, or any combination of violent crimes or serious drug offenses that total three. Under the ACCA, if a person with such a criminal history is found to be in unlawful possession of a firearm under the applicable Massachusetts firearms laws, he may face a sentence of 15 to 20 years in prison. The statute defines a "violent crime" as, among other criteria, a crime that involved the use or possession of a "deadly weapon."

In Commonwealth v. Boyd, the defendant's adult criminal record included convictions for the unlicensed carrying of a firearm and unlawful possession of ammunition. However, the defendant also had juvenile convictions for assault and battery by means of a dangerous weapon, assault by means of a dangerous weapon, and assault and battery on a public employee. In this case, the defendant was further convicted of unlawful possession of a sawed-off shotgun, unlawful possession of ammunition without a firearms identification card, unlawful possession of a loaded sawed-off shotgun, unlawful discharge of a firearm, and two counts of reckless endangerment of a child.

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March 17, 2014

Massachusetts High Court Examines Statute Permitting Defendants to Seek Post-Conviction DNA Testing

Last week, the Massachusetts Supreme Judicial Court (SJC) issued its opinion in Commonwealth v. Wade relative to the standards applicable to M.G.L. c. 278A, a statute enacted in 2012 that provides convicted and incarcerated defendants access to forensic and scientific analysis of evidence used to convict them. The statute's purpose was "to remedy the injustice of wrongful convictions of factually innocent persons by allowing access to analyses of biological material with newer forensic and scientific techniques."

In Wade, the defendant was convicted in 1997 of first-degree murder on a theory of felony-murder and aggravated rape. The defendant was accused of raping the 83-year-old victim who suffered from Alzheimer's disease, and who lived on the farm where the defendant worked. The victim was allegedly found naked on the defendant's bed on the property with injuries, which later led to complications and eventually her death. Evidence found on the victim and her clothing showed the presence of semen and sperm, but neither the defendant nor the Commonwealth sought DNA testing of the evidence. Since at least 2002, the defendant has been attempting to obtain DNA testing of the physical evidence against him, with the belief that it will exonerate him of the crimes for which he has been convicted. Each such attempt has been unsuccessful.

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March 10, 2014

SJC Announces New Standard for Withdrawal of Guilty Pleas in Cases Involving Annie Dookhan Misconduct

On March 5, 2013, the Massachusetts Supreme Judicial Court (SJC) issued its decision in Commonwealth v. Scott, relative to the standard for permitting a criminal defendant to withdraw his guilty plea in cases in which Annie Dookhan, the state forensic drug chemist, was directly involved in the analysis of drug evidence that preceded the defendant's guilty plea. In doing so, the SJC has announced a new standard applicable to guilty pleas to address the hundreds of criminal drug cases that potentially involved Dookhan's misconduct and may have interfered with the proper administration of criminal justice.

The SJC's opinion recounts in detail Dookhan's extensive misconduct and the investigations that exposed it. Dookhan's alleged misconduct, which began as early as 2004 and occurred into 2011, included removing drug samples against lab protocol; forging the initials of evidence officers on lab records; improperly grouping samples from a number of cases together, and reporting results for all sample tests that applied only to a few tests; and intentionally contaminating samples, including turning negative samples into positive samples. Because Dookhan's misconduct seems to have been motivated only by a desire to increase her apparent productivity, Dookhan has been unable to identify those specific cases in which she improperly tested samples or inaccurately reported on tested samples.

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February 27, 2014

SJC Holds District Court Judge Should Not Have Accepted Defendant's Guilty Plea

This week, the Massachusetts Supreme Judicial Court (SJC) held that a defendant who had pleaded guilty to resisting arrest was entitled to a new trial on the charges, where the district court judge failed to determine that a sufficient factual basis existed for the resisting arrest charge.

The SJC analyzed the applicable criminal procedure in Commonwealth v. Hart. Under Massachusetts law, a guilty plea will generally be valid if it is made voluntarily and intelligently. To be made "intelligently," one of three things must occur: (1) the judge explains the elements of the crime to the defendant; (2) the defendant's attorney explains the elements of the crime to the defendant; or (3) the defendant admits the facts constituting the crime, even if he is not aware that the facts admitted amount to a crime. In this case, both the defendant and his attorney confirmed that the attorney had discussed the charges or the nature and elements of the offense. Based upon that, the district court judge accepted the guilty plea and sentenced the defendant.

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February 10, 2014

Mere Use of License Plate Cover Not Grounds for Traffic Stop

Today, the Massachusetts Appeals Court issued its decision in Commonwealth v. Bernard, affirming the decision of a Lawrence District Court judge to suppress evidence obtained from the defendant's vehicle when a Massachusetts State Trooper pulled the defendant's vehicle over after observing a plastic cover on the vehicle's rear license plate. The decision resulted in the suppression of statements and evidence supporting firearm charges against the defendant.

In June 2009, the trooper observed the defendant operating a vehicle on Route 495 southbound. The trooper, who was traveling in the first lane, allegedly was unable to see the license plate of the defendant's vehicle, which he observed from an angle as the defendant's vehicle traveled in the third lane. The license plate was covered with a clear, but tinted, plastic cover. For this reason only, the trooper pulled up behind the defendant's vehicle and activated his cruiser lights to pull the defendant over. The trooper observed no other traffic violations.

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January 27, 2014

Ineffective Assistance of Counsel May Be Grounds for Withdrawal of Guilty Plea

Today, the Massachusetts Appeals Court issued its decision in Commonwealth v. Almonte, discussing the standard for a criminal defendant to withdraw his guilty plea on the grounds of ineffective assistance of counsel.

In 2005, the defendant was charged with one count of assault and battery by means of a dangerous weapon, and one count of assault and battery on a child causing injury, arising out of allegations that he had physically abused his minor daughter. Following plea discussions, the defendant and the Commonwealth agreed to plead guilty on both counts, with concurrent sentences of one-year of confinement, suspended for two years, upon certain probationary terms. The defendant and the Commonwealth submitted a "Tender of Plea" form, also known as the "green sheet," to the Lawrence District Court, outlining these terms.

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January 22, 2014

SJC Justices Disagree as to Effect of Prosecutor's Seemingly Inconsistent Statements at Two Separate Trials

This week, a 4-3 Massachusetts Supreme Judicial Court (SJC) decision highlighted the justices' conflicting views on the prejudicial effect on a criminal defendant when a prosecutor urges a jury to believe that one person was the principal actor in a murder at one trial, and, failing to convince that jury, urges a different jury to believe that the defendant pulled the trigger in the defendant's subsequent trial.

In Commonwealth v. Keo, Keo faced a charge of first degree murder in the shooting death of the victim, who was a member of a rival gang, in Lynn in November 2007. The evidence in that case suggested that, on that date, Bonrad Sok had called Keo, and Keo joined Sok and others at a restaurant where the victim and his girlfriend were also present. About five weeks prior to that time, the victim had stabbed Keo.

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January 6, 2014

Drug Trafficking Conviction Reversed Based Upon Invalid Warrantless Search of Vehicle

In many cases, the evidence obtained against a criminal defendant can and should be suppressed in court, based upon the police's violation of the defendant's constitutional rights in obtaining that evidence. Generally, if the police did not follow constitutional procedure, then a jury may not know about the evidence obtained as a result of the constitutional violation. A recent Massachusetts Appeals Court case illustrates this concept.

In Commonwealth v. Diaz, the defendant was convicted of trafficking cocaine in an amount of 28 grams or more, based upon two packages of cocaine that the police seized from the defendant's vehicle during a warrantless search of the vehicle. Several months prior to his arrest, the police had obtained information from a confidential informant that the defendant sold drugs, including at a building where a business named Family Oil was located, and that he packaged drugs there.

The police observed the defendant's vehicle parked behind the Family Oil building, located on private property, and entered the property. They saw the defendant exit the building and quickly place his jacket into his car and try to go back into the building. The police immediately seized and restrained the defendant. They then entered the building, searched the occupants, and found cocaine on two of them. Returning outside, the police searched the defendant's vehicle, without a warrant to do so, and found two bags of cocaine.

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December 13, 2013

BPD Officer Accused of Pointing Gun at People while Off-Duty

A Boston Police Officer has been accused of pointing her pistol at two people while off duty in Roxbury. His fellow Boston Police Officers arrested Officer Sandro Fonseca on Wednesday night after his .380 caliber pistol with laser sight fell from his waistband.

Fonseca was arraigned on Thursday in Roxbury Municipal court. He has pled not guilty to all charges. Bail has been set at $5,000 cash. Fonseca previously was in the Marine Reserves for six years, beginning in 2002. He served as a rifleman and ended his career as a sergeant, spending some of his time serving in Fallujah.

Attorney Kenneth Anderson is representing Fonseca, and noted that Fonseca saved his partner's life this past summer during a gunfire exchange in South Boston.

Fonseca's partner as well as Officer Ronald McGillvary, who serves as vice president of the Boston Police Patrolmen's Association, attended the arraignment.

According to Anderson, Fonseca was intoxicated when the incident occurred, and he still could smell alcohol on his client at their meeting, which occurred 12 hours later.

The report filed in court says that police responded to 66 Forest St. They were to question three men following claims by a neighbor that they had attempted to rob her and her disabled fiancé, threatening them with a handgun that had laser sight. The police surrounded the building, and officers on the scene saw the three men looking out of a window on the first floor.

After repeated requests from the officers, the three men finally came out from the building, with Fonseca leading. He had a police radio in one hand and was mumbling incoherently to one of the officers.

Officer Ward then pat risked Foseca, and felt the object on his waistband, which fell. Upon seeing that it was a gun, Ward pushed the suspect off to other nearby officers, who secured him. The other two men, Alides Foseca and David Fenandes, were also taken into custody. Fernandes had to be arrested using force.

Mikia Steed informed officer that her fiancé was coming home from a store nearby when the three men confronted him, one of whom had a pistol with laser sight. The man with the pistol pointed it at her fiancé's face. Then, when Steed confronted the men, the armed man pointed the gun at her.

The other men told her the armed man was drunk, and that she and her fiancé should ignore the whole scene. However, Steed called police and both she and her fiancé identified the armed man as Fonseca.

The Boston Police Department's Anti-Corruption Unit is investigating the incident. Fonseca has been put on an administrative with pay pending the results of the investigation. He has been with the BPD for five years.



November 22, 2013

Teen Accused of Fatal Hit-and-Run Pleads Not Guilty

Last month, Eric Megna allegedly struck and killed a man who was riding his bicycle. The incident occurred at night on an unlit street, and Megna then attempted to cover it up, according to the Plymouth County prosecutor.

Megna is currently a freshman studying engineering at the University of Massachusetts Dartmouth. He pleaded not guilty at the arraignment, which took place at Wareham District Court. The family of the victim, Michael Dutra, had to be ordered to the leave the courtroom because of their emotional state. Dutra was 58, and the father of two children.

Megna was released on $10,000 cash bail. He has been charged with leaving the scene of a fatal motor vehicle crash, and his next court appearance is scheduled for January 8th.

Authorities found that Megna left the scene of the accident, which occurred at approximately 7pm on October 11th in Middleborough, Massachusetts. He then drove to Lincoln, New Hampshire. Three days later, he called New Hampshire state troopers and reported that a deer hit his 2006 Jeep Grand Cherokee while he was driving on the Interstate 93 in Woodstock, New Hampshire.

Troopers arrived on the scene an hour after Megna's call. Megna told them that a passerby had taken the deer. The troopers did not find any vehicle debris at the site, and there was no deer fur on the vehicle.

Megna attempted to strengthen his alibi by emailing a picture of a deer to his mother as evidence of the accident. However, the prosecutor Matthew Libby said that the photo he sent was actually taken from an old posting on a website for pictures of road kill.

Furthermore, paint and debris from the accident in Middleborough match Megna's car. The police also have emails from the defedant's father, Paul Megna, sent to the defendant's mother, Stephanie Saniuk. In the email Paul Megna says he is concerned because of a cellphone call his son made to his mother from south of Boston when he said he was in New Hampshire. In addition, state troopers overhead a conversation at the father's apartment in Medford when approaching with a warrant. They heard a man telling someone to keep his mouth shut and that the police couldn't prove who was driving the car.

The authorities also tracked Megna's trip, starting at UMass Dartmouth, then to where he lives in Middleborough and finally to New Hampshire that night. However, the defense argued that the investigation was inaccurate due to the timeline and amount of travel involved.

During the hearing, the victim's family shouted, crying and holding each other. They were then removed from court, and not allowed to re-enter until later in the hearing.

Steven Dutra, Michael's brother, is most upset that Megna allegedly failed to help the injured victim, and left him there.


November 1, 2013

Boston University sees Decrease in Crime

In 2012, Boston University's Charles River Campus saw a slight decrease in crime. However, there was a large increase in violations for on-campus liquor and drug violations. Arrests for these violations did not increase, but the number of violations shot up nearly 30% of the year before.

The information was released as part of the annual report that must be released under the Clery Act. The Act passed back in 1990 and makes is so that colleges and universities in federal financial aid programs must release information on campus crime. It's created using Boston University Police Department records, as well as those from other campus departments and neighboring police in Boston, Cambridge and Brookline.

The number of instances of aggravated assault more than doubled- there was only four incidents in 2011 and nine in 2012. Two-thirds of these cases happened on public property that neighbors the campus. There was also an increase of reported forcible sex offenses, up to 10 from 9 the previous year.

On a positive note, the number of burglaries and robberies fell drastically. BUPD reported only 46 burglaries in 2012, much less than the 63 reported in 2011. There were also only 4 robberies reported on campus and public property in 2012, down from 13 the year before. This number does not include a robbery spree last fall that lasted about two weeks and put BU students on edge- most of those did not occur on the campus or abutting public property. Therefore, reporting them is not required under the Clery Act.

That's also true for larceny, which is defined as theft of personal property without force. Because of this, the 76 bicycles reported stolen in 2012 are not reported either. Bike theft is expected to rise this year, although it was previously decreasing for several years.

BUPD also reports on hate crimes as of 2011, when 4 crimes were reported. These crimes are usually committed using social media, and 2012 saw two incidents reported. In these cases, students were targeted based on their sexual orientation and national origin.

Fires were also up this year, to 11 incidents from 8 the year prior. Most fires were related to cooking in residences, and the damage was under $1,000 in each case.

BU's Medical Campus saw much more crime this year, with incidents almost doubling from 6 in 2011 to 11 in 2012. There were four arrests for drug violations that occurred on public property, as opposed to a single incident in 2011. There were also two cases of motor vehicle theft, a sharp contrast with zero the year before.

BUPD Sergeant Daniel Healy stressed that the increases may be more due to differences in reporting by the police than increases in local crime.

October 8, 2013

2012 Crime Data Released

Recently, the Federal Bureau of Investigation released crime statistics for 2012. Information included in the report ranged from violent to property crimes, including murder, assault, robbery, burglary and motor vehicle theft among others.

The report shows that property crime has decreased across the name by .9%, while violent crimes showed an increase of .7%. According to the FBI this is virtually unchanged from the previous year.

The full report is a compilation of statistics of offenses and arrest that is created using data voluntarily provided by law enforcement agencies that participate in the bureau's Uniform Crime Reporting (UCR) program.

According to Northeastern Professor of Criminology, Law and Public Policy James Alan Fox, the fairly level statistics are not a surprise. Fox also feels that although the police and government officials want to continue to decrease crime levels in the country that may not be possible. He believes that the goal now should be to ensure that crime levels do not rise again, which could be a big enough challenge in itself.

Furthermore, although the number of homicides showed little change, that has been overshadowed by mass shootings around the country. Fox notes that it is important to realize that mass murders have been pretty consistent over the course of the past few decades. The change here is not in the number, but rather in the amount of attention each receives due to the online coverage.

Locally, Former Boston Police Chief Sampson found that the data is best for looking at a large-scale perspective of what is happening in the nation. He found it was less helpful at the local level. Although the data is helpful to the city of Boston and other large cities across the nation, it is not as useful to small communities. The data can help show trends, such as an increase in drug crimes in a particular region. Of course, the next step in these cases is to look into why there is an uptick.

Around the state of Massachusetts, local communities can share information by looking at state statistics. This way, trends are spotted and can be addressed by the authorities.

Changing times also play a significant role in crime trends. For instance, crime today is less of an organized, mob-related entity, and is often more technology based and mobile.

The city of Boston ranked tenth in the state in violent crimes per capita, with a total of 5,266 violent crimes. There were 57 murders and manslaughters, 249 rapes, 1,910 robberies and 3,050 cases of aggravated assault. The town of Chelsea ranked first in the state. There were a total of 666 violent crimes. Of these, 2 were murders/manslaughters, 41 were rape, 253 were robbery and 370 were cases of aggravated assault.

April 10, 2013

Judge's Potentially Impartial Background Requires Writ of Mandamus be Granted Reversing Recusal Order

The U.S. Court of Appeals for the 1st Circuit has reversed the denial of a recusal order after determining that "a reasonable person would question the capacity for impartiality of any judicial officer with the judge's particular background in the federal prosecutorial apparatus in Boston during the period covered by the accusations."
According to the indictment, the defendant, James Bulger, was the leader of a criminal organization in Boston for over 25 years. During the time of his leadership, from 1972 to 1999, the FBI vigorously investigated organized crime in the Boston area. Indictments resulting from the FBI's investigation were prosecuted by the U.S. Attorney's Office or the New England Organized Crime Strike Force, two independent arms of prosecution that shared information and communicated regularly.

After Bulger was indicted in 2001, the Honorable Richard G. Stearns of the U. S. District Court for the District of Massachusetts was randomly assigned the case. During a large portion of the time covered by the indictment, Judge Stearns held several managerial and supervisory appointments with the U.S. Attorney's Office.

The defendant moved for Judge Stearns to recuse himself. Citing 28 U.S.C. § 455(a), (b)(1), (b)(3) and (b)(5)(iv), the defendant claimed that the likelihood that Judge Stearns would have had personal relationships with numerous witnesses and would himself be a material witness would cause a reasonable person to find that the judge would be biased.

Judge Stearns denied the motion on the grounds that because the U.S. Attorney's Office was separate from the Strike Force, questioning his impartiality was not reasonable. Judge Stearns also noted that despite working for the U.S. Attorney, he had no personal knowledge of anything material to the charged conduct. The defendant renewed his motion which Judge Stearns also denied alleging that it contained no new matters of law or fact.

The defendant petitioned the U.S. Court of Appeals for interlocutory relief by a writ of mandamus to direct Judge Stearns to vacate his order denying the renewed motion for recusal and to remove himself from the case.

Reviewing the defendant's two arguments, the 1st Circuit held that "given the institutional ties described here, the reasonable person might well question whether a judge who bore supervisory responsibility for prosecutorial activities during some of the time at issue could suppress his inevitable feelings and remain impartial when asked to determine how far to delve into the relationship between defendant and Government, and to preside over whatever enquiry may ultimately be conducted. On this record, that question could not reasonably be avoided. Further, while a mandamus petitioner must show irreparable harm, if immediate relief is denied and a balance of equities in his favor, the question of personal harm to the defendant need not be answered when the harm to the fairness of the judicial branch by denying the recusal is more present."

The defendant's petition was granted and the case reassigned to a judge whose curriculum vitae did not implicate the same level of institutional responsibility described here. In Re Bulger, James J.

If you or a family member has been charged with criminal activity, please contact Parker | Scheer LLP for a free consultation with one of our experienced Criminal Defense Lawyers.

March 26, 2012

College Student Criminal Defense Lawyer

A question that we are commonly asked when a college student who is charged with a crime in the Commonwealth of Massachusetts meets with us for the initial free consultation is: What is the difference between defending criminal charges before the university disciplinary review board and the Massachusetts court system?

This is question is quite broad, and would take more than a single blog post to address the myriad of differences between strategy and procedure when defending criminal charges before either a university disciplinary board or a court in the Commonwealth. Notwithstanding, I will generally discuss a couple of the most glaring differences between the two situations.

First, the attorneys at the criminal defense litigation group at Parker|Scheer LLP approach every client and every case differently. Every client that steps into one of our conference rooms has his or her own idea of what the ideal outcome would be for their particular situation. In a similar vein, every case is extremely fact specific and must be addressed accordingly - the most effective strategy often varies because an experienced criminal defense attorney works with each client to tailor the approach to the individual goals and the specific facts and allegations that are involved with their particular situation.

With that being said, the first palpable distinction between criminal proceedings before a university disciplinary board and a state court in the Commonwealth is the underlying objective of each respective establishment. The structure and procedures vary slightly at every individual university disciplinary board; but, the primary objective is universal - education. This is the first glaring distinction between a university disciplinary board and the Massachusetts courts. In contrast, the courts in the Commonwealth of Massachusetts place less emphasis on educating an individual that is charged with a criminal offense. Instead, the objectives of Massachusetts courts consist of a blend of punishment, restitution, acceptance of responsibility and rehabilitation. An experienced criminal defense lawyer adapts the particular strategy of the defense to the underlying objectives of the establishment.

A second common distinction between the proceedings before university disciplinary boards and the courts are the rules of procedure and evidence. In criminal proceedings before the state courts, we utilize the Rules of Criminal Procedure and the common law rules of evidence to the advantage of our clients in pursuit of a favorable outcome. For example, the Rules of Criminal Procedure provide for the opportunity to challenge incriminating evidence that was obtained illegally, utilizing motions to suppress evidence, and motions to dismiss criminal complaints that lack probable cause. Additionally, the rule against hearsay and other evidentiary principles allow an experienced criminal defense trial lawyer to exclude and move to suppress incriminating evidence that would otherwise be introduced and offered against our clients. These rules of procedure simply do not exist when we assist our clients in effectively resolving a matter before the university disciplinary boards. Thus, the strategy differs, and we work with our clients to reach each individualized objective.

In sum, differences in strategy and procedure exist from the underlying objectives of the respective establishment, to the rules that govern the proceedings. Accordingly, it is extremely important to retain an experienced criminal defense lawyer that is familiar with the different approaches that are necessary to effectively represent the interests of a college student that has been charged with a criminal offense before both the state courts in the Commonwealth of Massachusetts, and a university disciplinary board. While every client and every case is different, the objective of the criminal defense litigation group at Parker|Scheer LLP always remains the same - to protect the rights of our clients, and put them in the best position possible regardless of the venue or the allegations.

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