Criminal Defense

SJC Opinion Addresses Racially-Motivated Social Media Surveillance by Police

Published on: September 9, 2024 | by Tom Miller

In 2018, Richard Dilworth was charged with a variety of firearms offenses after an officer from Boston Police Department’s gang unit sent him a friend request on Snapchat under a false identity and viewed Dilworth’s videos showing what appeared to be guns. In 2022, a judge dismissed the case after prosecutors refused to provide discovery about police practices regarding social media surveillance. The prosecution appealed. This week—almost seven years after the beginning of the investigation—the dismissal was affirmed by a unanimous Supreme Judicial Court in an opinion that addresses a number of important legal issues for criminal defendants.

Over the course of the protracted case, Dilworth, who is Black, made a series of discovery requests aimed at developing a defense of selective enforcement based on race. The defenses of selective enforcement or selective prosecution typically require a defendant to show three things: (1) that a broader class of people than those prosecuted or investigated has violated a law, (2) that the failure to enforce the law across the board was either consistent or deliberate, and (3) that that the decision not to enforce or prosecute was based on a protected class like race. Dilworth accordingly sought information about individuals whose social media accounts police were secretly monitoring; he also requested user icons or bitmojis and the user names for the fake Snapchat accounts used by police, on the ground that these would “demonstrate the demographics of the groups they are trying to infiltrate.”

The judge granted most of Dilworth’s discovery motions, relying in part on the SJC’s landmark decision in Commonwealth v. Long, issued in 2020 during the pendency of Dilworth’s case. In Long, the SJC held that under constitutional guarantees of equal protection, a defendant subject to a traffic stop by police has a right to discovery about police practices in order to make out a selective enforcement claim, as long as the defendant can raise a reasonable inference that the particular stop at issue was motivated by race.

Distribution of “Revenge Porn” and Deepfakes is Now an Offense in Massachusetts

Published on: July 15, 2024 | by Niamh Gibbons

Last month distribution of “revenge porn” – nude or sexually explicit photos or videos shared online without the consent of the person pictured – became a criminal offense in Massachusetts, as part of a bill aimed at protecting victims of abuse The Commonwealth became the second-to-last state in the country to outlaw this kind of distribution (leaving South Carolina the lone state without a law specifically addressing this issue). Congress also passed a law in 2022 that allows victims of revenge porn to sue in federal court to recover damages from the person who disclosed the images and to enjoin further sharing. The new Massachusetts legislation closes several legal gaps in state law and contains measures designed to prevent harmful online exploitation.

The typical revenge porn case involves photographs taken by or sent to an intimate partner, who then either shares them with others or posts them online. The term “revenge” porn comes from cases where the images are distributed to get revenge on a former partner by damaging their reputation or to blackmail them. However, people often share such images for other reasons, such as wanting to share an image with friends or for economic gain or entertainment. Because revenge is not always the motive, other terms such as image-based sexual abuse or nonconsensual distribution of intimate images are gaining currency as more accurate descriptions of the offense.

What is criminalized under the Massachusetts statute?

Department of Correction Begins Search for New Commissioner and Should Consider Input from Incarcerated Individuals

Published on: July 12, 2024 | by Lucie Gulino

While the DOC has a rehabilitative mission on paper, it has a reputation for violating the civil rights of its incarcerated population and discriminating and retaliating against its employees. Ten years ago, Zalkind Law sued the DOC for discrimination because the DOC paid a female deputy superintendent significantly less than her male counterparts in the same role and for retaliation based the DOC’s failure to consider her for promotion after she complained of the DOC’s unlawful practices. In 2020, the Department of Justice launched an investigation into the DOC’s treatment of incarcerated people who are facing mental health crises and found the DOC fails to accommodate prisoners suffering from serious mental health issues and instead exposes them to conditions that harm them or place them at serious risk of harm. In 2021, Robert Silva-Prentice and Dionisio Paulino, two men of color, incarcerated at Souza-Baranowski Correctional Center sued the DOC for violating their civil rights under state and federal laws when a group of armed officers retaliated against Black and Latino men at the prison after an altercation between incarcerated men and officers broke out at the prison on January 10, 2020. According to the complaint filed in Massachusetts District Court, these officers—at the direction of then-Deputy Commissioner, Paul Henderson—stormed into Mr. Silva-Prentice’s and Mr. Paulino’s cell and beat, tasered, and kicked them, pulled out their hair, slammed them into concrete walls and a metal doorway while directing racial, ethnic, and sexual slurs at them. There is a jury trial set for August 5, 2024. Additionally, just last year, former corrections officer, Eric Smith, a Black man, prevailed in his discrimination and retaliation case against the DOC in state court and won a jury verdict of $2.8 million. The DOC’s history of violating civil rights makes the selection for a new Commissioner particularly important.

To guide the process of finding a new leader of the DOC, the Healey administration has created a six-person search committee:

Deirdre Calvert, Director of the Massachusetts Bureau of Substance Addiction Services

Legislature’s Expansion of Abuse Prevention Orders Raises Concerns of Vagueness and Confusion

Published on: June 26, 2024 | by David Russcol

As part of a bill broadly aiming to protect victims of abuse, including revenge porn and deepfakes, the Massachusetts legislature recently enacted an amendment to the restraining order statute that may have substantial unintended consequences. Although the well-intentioned provision allows a person suffering from “coercive control” to seek an abuse prevention order, there are numerous undefined or poorly-specified terms that are likely to create confusion in the courts. In addition, the amended statute may allow children to obtain restraining orders against their parents for normal parenting decisions, surely not what the General Court had in mind. CONTINUE READING ›

Massachusetts Firearms Laws Still In Flux After Supreme Court’s Decision in Bruen

Published on: December 11, 2023 | by Tom Miller

In 2022 the Supreme Court recognized for the first time a constitutional right under the Second Amendment to carry a firearm in public, outside of the home, for the purpose of self-defense. As we observed earlier this year, courts and legislatures across the country are still trying to figure out the meaning and limits of New York State Rifle & Pistol Association, Inc. v. Bruen. Several pending cases in different jurisdictions could dramatically affect the rights of defendants—including those in Massachusetts—facing criminal charges related to firearms.

What firearms licensing regimes remain acceptable after Bruen? Bruen overturned licensing schemes that relied on non-objective, discretionary criteria for whether licenses could issue (so-called “may issue” regimes). This November, the federal Fourth Circuit Court of Appeals issued a 2-1 decision in Maryland Shall Issue v. Moore, applying Bruen to invalidate the firearms licensing scheme in Maryland. Maryland’s scheme relied on objective criteria (a so-called “shall issue” system) and thus observers initially assumed it would survive Bruen. The system, however, was somewhat complex: in addition to a registration process for each firearm and a process for obtaining a carry permit, Maryland required would-be gun-owners to obtain a “handgun qualification license” that required finger-printing, to take a four-hour training course, and to wait up to 30 days for approval. For two Republican-appointed judges on the Fourth Circuit, this went too far to comply with Bruen’s recognition of a fundamental right to carry firearms, despite suggestions in Bruen that requiring background checks and safety courses was still acceptable. Maryland has petitioned the Fourth Circuit to rehear the case before the entire court. In the meantime, the decision suggests that the licensing scheme in Massachusetts, although recently revised to be made into a “shall issue” system to comply with Bruen, could still be vulnerable to challenge.

Another issue concerns the carrying of firearms across state lines. Massachusetts’ gun laws are quite strict, while some of its very nearby neighbors have extremely relaxed legal regimes. For instance, G.L. c. 269, § 10(a), the Massachusetts law punishing carrying a firearm without a license, imposes a mandatory minimum prison sentence of eighteen months. In New Hampshire, by contrast, less than an hour north of Boston, carrying a firearm in public without a license is completely legal. In August of this year, a state District Court judge in Lowell dismissed carrying charges on the grounds that the defendant was a legal resident of New Hampshire. The judge reasoned that the ability to exercise a fundamental constitutional right could not shift so dramatically just because the defendant crossed a state line. The Commonwealth has appealed the ruling to the Appeals Court, where the case is currently pending.

Supreme Judicial Court to Decide Whether the Commonwealth Has a Duty to Investigate Misconduct by Springfield Police Department

Published on: September 26, 2023 | by Lucie Gulino

This month, the Supreme Judicial Court heard oral argument in Graham v. District Attorney for Hampden County, a case raising the questions of whether the Commonwealth has a duty to investigate the Springfield Police Department (SPD),what that duty entails, and what evidentiary disclosures state prosecutors must make about any exculpatory evidence that prosecution teams may have in events involving the police department. The decision will have significant implications for defendants wrongfully convicted of crimes based on false reports filed by police officers justifying use of force against defendants. CONTINUE READING ›

Supreme Court Clarifies Intent Standard For “Threats” In Stalking and Harassment Cases

Published on: August 15, 2023 | by Tom Miller

The Internet is the central forum in our society for expressing ideas. Many of us read or create countless public messages and posts each day on platforms like Facebook, Instagram, Twitter, or TikTok, in addition to private text messages or emails. This activity is generally protected by the First Amendment’s guarantee of freedom of speech. Yet even just a few words on a screen can be terrifying in the context of an abusive family or romantic relationship. Many restraining orders and even criminal charges are based, in whole or in part, on social media posts or electronic communications. What is the right balance between protecting free speech online and protecting victims of harassment and abuse?

Twenty years ago, in Virginia v. Black, the Supreme Court clarified that free speech protections do not apply to “true threats,” which it defined as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Black involved a statute banning cross-burning. This past June, the Justices returned to the concept of “true threats” in the context of social media in its decision in Counterman v. Colorado. The ruling has complex implications for both victims and defendants in restraining order hearings and criminal cases involving harassing speech.

The Supreme Court’s Decision

Justice Can’t Wait: Governor Healey Grants Seven Pardons and Recommends Modernization of the State’s Clemency Guidelines

Published on: July 21, 2023 | by Lucie Gulino

This is a follow up to a previous blog about clemency: you can read that post here.

Last month, Governor Maura Healey recommended seven individuals to the Governor’s Council for pardons and on July 19, 2023, the Governor’s Council unanimously voted in favor of all seven pardons. A pardon is complete forgiveness of the underlying convicted offense, which erases the crime from an individual’s criminal record. These pardons make Governor Healey the first Governor in Massachusetts in over thirty years to successfully grant pardons during her first year elected. These seven pardons also mark the highest number of pardons granted by a Massachusetts Governor in their first term in over forty years.

In Commonwealth v. JF, Supreme Judicial Court Makes Sealing Non-Convictions Easier

Published on: June 6, 2023 | by Lucie Gulino

Criminal records can have a devastating impact on access to life-affirming resources such as housing and employment. To address this issue, Massachusetts has steadily passed legislation that has made it easier for people to seal their records. My colleague has previously written about CORI reform law, including the 2018 legislation, and the Supreme Judicial Court (SJC) decision in Commonwealth v. Pon, which made it easier for people to seal their criminal records under M.G.L. c. 276, § 100C by laying out six factors for judges to evaluate whether there is “good cause” to seal the criminal records as discussed in our previous blog post.

Supreme Judicial Court Requires Prosecutors to Prove Lack of License in Firearm Cases

Published on: April 25, 2023 | by David Russcol

Since its 2008 decision in Heller, the U.S. Supreme Court has been expanding the understanding of the constitutional right to bear arms under the Second Amendment. Heller held that the Second Amendment right is individual, and not limited to the context of an organized, “well-regulated militia.” In 2010, the Court held in McDonald that the right to bear arms applies to the states, not just against the federal government. Both Heller and McDonald addressed the context of keeping a firearm for self-defense in the home. But in the 2022 case of Bruen, the Supreme Court extended that right beyond the home, to include carrying a firearm in public, at least under some circumstances. State courts and legislatures are still grappling with the consequences of that decision.