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 19, 2014

SJC Rules Warrant Required to Obtain Cell Phone Data

Yesterday, in a 5-2 decision, the Massachusetts Supreme Judicial Court (SJC) ruled that state law enforcement may not compel cellular telephone service providers to provide historical cell site location information for a particular cell phone without first obtaining a valid search warrant. In other words, under Article 14 of the Massachusetts Declaration of Rights, the government may not use a person's cell phone records to track that person's physical location unless they have first obtained a search warrant supported by probable cause.

Cell phone service providers use cell sites or cell towers placed throughout particular regions, which send and receive signals from a subscriber's cell phone that is operated within the particular region. When a subscriber makes or receives a call, a record is created of the cell site used. This information enables a cell phone service provider to approximate the location of an operating cell phone within its network based on the cell phone's communication with cell sites in the area. The greater number of cell sites in a region, the greater the accuracy of the cell phone's location.

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February 17, 2014

Improper Procedure for Discharge of Deliberating Juror Results in Reversal of Guilty Verdict

Last week, the Massachusetts Appeals Court issued an opinion in Commonwealth v. Garcia that reversed a jury's guilty verdict on the grounds that the judge did not follow appropriate procedures in discharging a juror during deliberations.

The defendant was charged with armed robbery, and the case was tried in superior court. About approximately three hours of deliberating, the jury sent a note to the judge, stating that they had not been able to come to a unanimous decision. The judge did not believe that the jury had deliberated long enough to show a deadlock, and instructed the jury to resume deliberations the following day.

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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 13, 2014

Convictions Reversed Based Upon Unlawful Police Entry Into Apartment During Execution of Arrest Warrant

Today, the Massachusetts Supreme Judicial Court (SJC) reversed a defendant's two convictions on the grounds that both convictions were based on evidence that was seized by the police during an illegal entry into the defendant's home to execute an arrest warrant.

In Commonwealth v. Gentile, a police trooper spoke with the defendant about one week prior to his arrest, and viewed the defendant's identification card which listed the defendant's address as an apartment in Leominster. The trooper later learned that there were two outstanding arrest warrants for the defendant. After he confirmed that the Leominster address matched the defendant's address on his driver's license, the trooper went to the apartment to execute the arrest warrants.

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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 30, 2013

Massachusetts High Court Strikes Down Mandatory Sentence of Life Without Parole For Juveniles

Until last week, Massachusetts' statute imposing a mandatory sentence of life without parole for those convicted of first degree murder applied equally to adults and juveniles who were under the age of 18 at the time of the crime. However, interpreting a 2012 decision from the United States Supreme Court, the Massachusetts Supreme Judicial Court ("SJC") has held that denying such juveniles the opportunity to be considered for parole is unconstitutional under both the federal Constitution and the Massachusetts Declaration of Rights.

In 1981, Gregory Diatchenko, who was 17 years old at the time, stabbed a man nine times, killing him. Diatchenko was convicted of first degree murder and was sentenced to a mandatory term of life in prison without the possibility of parole. The sentence ensured that Diatchenko would die in prison.

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December 23, 2013

Speedy Trial: A Guaranteed Right Or An "Either/Or" Choice?

On December 5, 2013, the Massachusetts Supreme Judicial Court (SJC) heard oral arguments in Commonwealth v. Taylor, a criminal case that seeks a balance between a defendant's right to a speedy trial and his right to receive "automatic discovery" from the prosecution.

In addition to a criminal defendant's right to a speedy trial under the Sixth Amendment to the United States Constitution, Massachusetts Rules of Criminal Procedure Rule 36 provides that a criminal defendant must be brought to trial within twelve months of the date of his arraignment. Under the rule, some specific periods are excludable from the total calculation of the twelve months. If this right is violated, then the defendant is entitled to a dismissal of the criminal charges against him in the case.

The Massachusetts rules also require that the prosecution automatically turn over to defense counsel certain items and information that are relevant and material to the prosecution's case or to the defendant's potential defenses. Such information and items include witness statements, statements by the defendant, and other evidence collected by the prosecution in connection with the charges against the defendant.

In Taylor, the defendant was arraigned on murder charges in Suffolk Superior Court in August 2006. By the fall of 2006, the prosecution still had not turned over critical evidence that fell within the mandatory automatic discovery provisions of the Massachusetts rules. That evidence included a recording of the police interrogation of the defendant and statements by a chief witness (who the defendant claimed was actually responsible for the alleged murder), as well as seventeen audio recordings of police interviews conducted in May 2006 and the audio and transcripts of eleven witnesses who testified before a grand jury. Although the court ordered the prosecutor to produce the missing automatic discovery items, the prosecutor did not timely do so, and requested additional time. Defense counsel made clear to the prosecution and the court that, notwithstanding the prosecution's request for more time to comply with its mandatory discovery obligations, the defendant was not waiving his right to a speedy trial. The court granted the prosecution additional time, but noted that "Rule 36 will not be waived from this date until the time of compliance."

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December 20, 2013

Computer Breach Likely in Convention Credit Card Theft Case

This fall, hundreds of attendees at conventions in Boston fell victim to credit card theft. However, police now think that there could be many more victims throughout the city.

According to Boston Police Detective Steven Blair, the thefts are more widespread than previously thought and people who did not attend the conventions at the Boston Convention & Exhibition Center in October and November could also be victims.

The new information comes after interviews with credit card companies. Blair said that there could be hundreds more victims. This is in addition to the hundreds who have already reported fraudulent and unauthorized charges to their credit cards after visits to Boston.

At present, there have been about 300 people who have reported compromised credit cards after attended the American Society of Genetics meeting and the American Public Health meeting, held in October and November respectively.

Although police remain unsure as to how the thefts were carried out, the thieves most likely hacked into a computer system to capture the data. There has not been a breach found at the convention center, adjacent hotel, or the local restaurants and bars. The Massachusetts Convention Center Authority announced that the thefts did not occur in the facility to reassure convention planner scheduled to meet in January. Some employees of the authority were also victims.

After the convention in Boston, victims of the theft reported their credit cards being used around the United States in clothing stores, drug stores, and other retailers to buy gift cards. The gift cards are able to be resold for cash.

The victims reported that they used their credit cards mostly in nearby restaurants and businesses, including M.J. O'Connors and City Bar. Both of these establishments are located in the Westin Boston Waterfront Hotel. The Briar Group owns both restaurants, and reports that its security consultants are yet to find any problems in their systems. Similarly, the Westin has also been unable to find any breaches of security.

The state attorney general and US Secret Service are also investigating the theft. Boston Police have reached out to major credit card companies, and with their help are retracing the steps of the potential victims and pinpointing locations where the cards were used.

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.

December 10, 2013

The Basics of Massachusetts Bail Laws

A clerk, assistant clerk or judge sets Massachusetts's bail. When a clerk or assistant clerk is setting bail it is done following the person's arrest, when they are being held at a police station or jail, and before the person's arraignment on the pending criminal charges. Judges will set bail following the arraignment and usually after the assistant district attorney requests it. They can set bail without the request being made as well. Bail is meant to ensure that the defendant will show up for their future court appearances. The particular amount is set based on a number of factors, including their connection to the community, their criminal history, flight risk, the nature of the case, past defaults and the safety risk to the community. Courts will also look into any other current pending cases against the defendant.

The amount bail is set at can vary greatly. Bail can be as low as $50 or a judge can choose to hold someone without setting bail, which tends to happen in cases involving very violent crimes. A judge can also hold a defendant without bail if the crime has a considerable mandatory minimum sentence, especially if the defendant is not a US citizen. Bail orders are often appealed to the superior court if the defendant is unable to pay, and further appellate rights exist for bail that a defendant wants to challenge. However, these appellate rights are not used often and are rarely met with success.

In rare cases, a judge will set bail with certain conditions that are out of the ordinary but do not often get reversed. For instance, a judge could set bail and revoke a defendant's right to use a cell phone, place the defendant under house arrest or require the defendant to wear an electronic monitoring device. In these cases, if conditions are not reversed a defendant must either accept them or chose to remain in jail until his or her trial.

Most of these conditions regarding bail come with sex crimes. Nearly all defendants who have been charged with committing a sex crime and can post bail are required to wear an electronic monitoring device. While out on bail, defendants are usually prohibited from being within a specified distance from schools, playgrounds and parks. This can be very difficult for defendants who live in large cities, such as Boston, as the distance is often as much as 500 feet. Because of this, once the defendant is released on bail our criminal defense lawyers work to ensure that the defendant is able to work and live in areas that could be a violation of these conditions.