Recently in Ineffective Assistance of Counsel Category

June 9, 2014

Defense Counsel's Failure to Move to Strike Portion of Expert's Testimony Leads to New Trial

On May 19, 2014, the Massachusetts Supreme Judicial Court (SJC), in Commonwealth v. Sepheus, reversed the conviction of a defendant convicted of possession of cocaine with intent to distribute, and determined the defendant is entitled to a new trial, because trial counsel was ineffective for failing to object to a portion of the Commonwealth's expert's testimony. The portion of the expert's testimony to which counsel did not object was the expert's response to questions counsel asked that allowed the expert to offer his own opinion as to the defendant's guilt.

The defendant was arrested on outstanding warrants in Springfield, MA on September 30, 2009. At the time of the arrest, the defendant was with another man, whom Springfield police observed perform what they believed to be a narcotics transaction. Both the defendant and the other man were arrested. Defendant was found in possession of three small bags of "crack" cocaine, weighing approximately 0.4 grams and packaged individually in the twisted-off corner of a sandwich bag, and $312 in currency. The defendant did not have in his possession a device to ingest the drug.

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May 19, 2014

Counsel's Failure to Raise Improper Expert Testimony Issue on Appeal Earns Defendant New Trial

Last week, the Massachusetts Appeals Court reversed the defendant's conviction in a sexual abuse case, based upon the improper expert testimony offered by the Commonwealth at trial, and the defendant's appellate lawyer's failure to raise that issue on the original appeal of the conviction.

In Commonwealth v. Aspen, the defendant was convicted of one count of rape of a child under sixteen, six counts of rape, two counts of indecent assault and battery, and one count of assault and battery, all in relation to accusations of sexual abuse made by the defendant's stepdaughter. At trial, over the objection of the defendant's trial attorney, the court permitted an expert witness to testify about general behavioral characteristics of sexually abused children in a manner that could have improperly suggested to the jury that the stepdaughter's testimony was credible.

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