Criminal Defense

Massachusetts Appeals Court Decision in Commonwealth v. Daly Invalidates Conspiracy Conviction

Published on: September 18, 2015 | by David Duncan

While it is not a crime to think about committing a crime, or in general to talk about committing a crime, it is a crime to agree with someone else to commit a crime. Usually one additional thing is required, an “act in furtherance” of the conspiracy – something to demonstrate that the agreement is not mere idle talk. This is the crime of conspiracy. It requires two people. It is an amorphous crime, something prosecutors love and defense attorneys detest, because it has such open-ended reach.

Where the conspiracy is to distribute drugs, the “act in furtherance” is dispensed with. All that is necessary to commit the crime is that you agree with one other person to distribute illegal drugs. You don’t need to do anything – you only need to agree with another that you will do something.

The Massachusetts Appeals Court recently, in Commonwealth v. Daly, (Sept. 3, 2015) set at least a lower limit on the broad reach of the crime of conspiracy. Following in the path of a number of federal courts, the Appeals Court held that a buyer and seller in a drug transaction are not guilty of conspiracy to distribute drugs, despite the indisputable fact that they have by the nature of the transaction agreed to a sale of drugs that necessarily entails distribution from one to the other.

How to Seal Records of State Criminal Charges in Massachusetts

Published on: September 11, 2015 | by David Russcol

Anyone who has gone through the criminal justice system—whatever the outcome—knows that criminal charges can have a significant and lasting effect on their lives. Especially if someone has been convicted of a crime, but even if the case ended in an acquittal or a dismissal, information about criminal charges can affect their employment, housing, and other important aspects of life. What can someone do to literally “close the books” on past criminal charges and move on?

In the vast majority of cases, the possible remedy is to have records of these charges sealed. Sealed charges generally do not show up on a person’s CORI (criminal record) report and are not accessible to the public, although courts, law enforcement agencies, and a few other entities can access them. If asked in an employment application whether they have been convicted of or arrested for a crime, an individual whose records have been sealed can answer “no” under the law. A more drastic step than sealing would be expungement – deletion of all traces of a charge so that nobody knows it ever existed – but that is only available in very rare circumstances, such as when someone was accidentally charged instead of an individual with the same name due to a clerical error, or when someone was charged because an identity thief pretending to be them committed a crime. Even if charges are dropped because the defendant is innocent, expungement is not possible as long as the authorities intended to charge them with a crime.

In Massachusetts, Acquittal Evidence Is No Longer Admissible in New Trials

Published on: September 4, 2015 | by Zalkind Duncan & Bernstein LLP

Earlier this week, the Massachusetts Supreme Judicial Court (SJC), in Commonwealth v. Dorazio, SJC-11765 (Sep. 2, 2015), reversed Herbert Dorazio’s convictions for rape of a child and of assault with intent to rape a second child. The Court reversed the convictions because, during trial, the Commonwealth put on testimony that the defendant had assaulted a third child. The problem? Twelve years ago, Dorazio had been charged for that alleged assault and found not guilty. The Commonwealth argued that his acquittal did not matter, and that it could still try to persuade the jury that Dorazio committed that assault. The SJC disagreed. In Dorazio, the Court held that under the “doctrine of collateral estoppel,” the Commonwealth cannot introduce “acquittal evidence” (evidence of an alleged wrongdoing for which the defendant had been found not guilty) against the defendant in any subsequent trials.

It is fairly common practice for prosecutors to rely on evidence of “prior bad acts.” Evidence of prior bad acts can’t be used as proof that the defendant committed the crime for which he is on trial. But prior bad act evidence can be admitted for many other reasons, including to prove motive, plan, knowledge, absence of mistake, or lack of accident. A court doesn’t need to find that beyond a reasonable doubt that the defendant committed that prior bad act for the evidence to be admitted, either. Instead, the evidence has to satisfy a lower standard of proof, called “preponderance of the evidence.” Under Dorazio, prior bad acts are still admissible in Massachusetts courts—unless, of course, the defendant was tried and acquitted of having committed those prior bad acts. Defendants can no longer be required to redefend themselves against old charges.

Labrie Case Prompts Examination of Statutory Rape Law

Published on: August 28, 2015 | by Ruth O'Meara-Costello

The big news in criminal law this week has been the ongoing New Hampshire trial of Owen Labrie, a prep-school student accused of raping a 15-year-old fellow student. As I write this, the jury in that case is considering its verdict. While the case has gained attention in large part due to the prestige of the school and the unsavory details that have emerged regarding an apparently longstanding “senior salute” tradition in which male seniors compete to receive the most sexual favors, one legally interesting detail is that Labrie is facing a litany of charges based in part due to the age of the female student. As to those offenses, her consent to their activities (a hotly disputed issue at trial) is irrelevant.

Statutory rape laws, which make it a crime to have sex with a person under a certain age regardless of that person’s consent, differ significantly from state to state. Ideally, such laws address the real need to deter and punish predatory sexual behavior aimed at children without treating children who choose to engage in sexual behavior with one another as criminals. In Massachusetts, 16 is the age of consent set by statute and it is a crime for anyone—including another child under the age of 16—to have sexual intercourse with a child under that age. (A separate statute concerns sexual activity that doesn’t include intercourse.) The child’s consent and a lack of knowledge of the child’s age are not defenses. That crime is aggravated where the difference in age between the accused and the victim is more than 5 years and the victim is under 12, or there a more than 10-year age gap and the victim is 12-16, or if the accused is a mandatory reporter. The opposite is not true, however—a lesser difference in age (or no difference in age) is not a defense.

Massachusetts’ Law Criminalizing Sex Trafficking is Constitutional, But Questions About Its Scope Remain Unanswered

Published on: August 21, 2015 | by Emma Quinn-Judge

Last week, in Commonwealth v. McGhee, the Massachusetts Supreme Judicial Court (“SJC”) addressed, for the first time, the constitutionality of the Massachusetts sex trafficking statute. Massachusetts criminalized sex trafficking in 2011. The state law bars “subject[ing], or attempt[ing] to subject, or recruit[ing], entic[ing], harbor[ing], transport[ing], provid[ing] or obtain[ing] by any means . . . another person to engage in commercial sexual activity . . . or caus[ing] a person to engage in commercial sexual activity,” or benefitting financially from any such conduct. G.L. c. 265, § 50(a). “Commercial sexual activity” is defined as “any sexual act on account of which anything of value is given, promised to or received by any person.”

In the case before the SJC, the allegations were that the two defendants had approached three women, taken photographs to advertise the women’s services on the website Backpage.com, and then driven the women to various locations to have sex with men. The defendants kept some or all of the money that the women received in exchange for engaging in sex acts. Both defendants were found guilty of trafficking persons for sexual servitude. (One defendant was also found guilty under a separate state law of deriving support from the earnings of a prostitute.) CONTINUE READING ›

Massachusetts Reforms to Probation Violation Proceedings Help Avoid Unnecessary Detention

Published on: August 14, 2015 | by Monica Shah

This is the second in our series of posts about changes in the rules that govern proceedings for defendants charged with violating probation in Massachusetts state court. For Part 1 of this series, click here.

In addition to changing some of the language of the rules to avoid confusion, the new procedures give the courts new authority to release defendants on conditions, which should help avoid unnecessary detention of defendants accused of violating probation.

The new rules correct confusing ambiguity between “preliminary” and “full or final” probation hearings and specifically provide for two separate hearing procedures – a “probation detention hearing” and a “probation violation hearing” – and set forth specific rules for each type of hearing.

In a probation detention hearing, held immediately following an alleged violation of probation, the court must determine “whether probable cause exists to believe that the probationer has violated a condition of the probation order and, if so, whether the probationer should be held in custody.” A probation detention hearing may be conducted at the initiative of the court or the probation department. For good cause, the court may order that the probationer be detained in custody pending the detention proceeding. If no judge is available a magistrate can conduct a hearing but the magistrate’s custody order is only valid until the date the judge will next be present, on which date the judge will have to conduct a fresh detention hearing.

Probation detention hearings must be conducted in the courtroom on the record and afford the probationer a number of rights. The probationer is entitled to counsel and a reasonable time to prepare for the hearing. At the hearing, the probation officer (with or without assistance of DA) is required to present evidence to support a finding of probable cause, and the probationer is entitled to be heard in opposition, and may submit relevant evidence. Importantly, in cases involving criminal charges, the criminal court’s finding on probable cause to issue charges does not bind the probation court in its determination of whether there is probable cause to find a probation violation because, in most cases, a criminal defendant does not have the opportunity to fully and fairly contest a criminal probable cause determination.

Massachusetts Reforms to Probation Violation Proceedings Take Effect in September 2015

Published on: August 14, 2015 | by Monica Shah

On September 8, 2015, Massachusetts district courts and the Boston Municipal Court will implement significant changes to probation violation rules. Individuals who are currently under a term of probation issued in a criminal case after a finding of guilty or after a continuance without a finding (“CWOF”) should take notice of these new rules. The new rules do not apply to individuals who are under pretrial probation. The rule changes will have a direct impact on the way that probationers and their criminal defense counsel handle these cases going forward. We are outlining these changes in two posts. This post focuses on how the new rules will operate to clarify record-keeping and help the courts make reasonable determinations about detention and transport between courts when a defendant is charged with violating probation by committing a new crime. For part 2 in this series, click here.

Defendants may be brought before the court accused of violating probation either because they have been arrested and accused of committing new crimes (an arrest is an automatic probation violation) or because they have violated conditions of probation but not any laws. (For example, a common condition for defendants on probation for DUI is the requirement to abstain from alcohol.) Whether the basis for the probation violation is a new criminal charge or non-criminal conduct, the rules now specify that the notice of violation may be withdrawn prior to adjudication (thereby terminating the proceeding) only with court approval. Such approval and the fact of withdrawal must be recorded on the docket. Previously, a notice of violation could be withdrawn solely with the discretion of the Probation Department without any court approval, which could lead to confusion and lack of record-keeping regarding the process by which the probation proceeding had been terminated.

Massachusetts High Court Holds Law Criminalizing False Statements About Political Candidates Unconstitutional

Published on: August 11, 2015 | by David Duncan

On August 6, the Supreme Judicial Court, in Commonwealth v. Lucas, No. SJC-11380, held unconstitutional a Massachusetts statute criminalizing the publication of false statements about political candidates and political ballot initiatives “which [are] designed or tend[] to aid or injure or defeat such candidate . . . . [or] which [are] designed to affect the vote on such question.” G.L. c. 56, § 42. This firm signed an amicus brief submitted by the Cato Institute, urging the SJC to do so. The Court declined several opportunities to avoid deciding the constitutional issue and emphatically declared that exposing political litigants to criminal prosecution was too dangerous to a free and open political process to allow the statute any continuing validity.

Melissa Lucas was the President of a Political Action Committee (PAC) that distributed a brochure to voters in a legislative race, urging voters to vote against Brian Mannal, the incumbent. Among other statements, the PAC asserted that Mannal “chose convicted felons over the safety of our families,” “earned nearly $140,000 of our tax dollars to represent criminals,” and “is putting criminals and his own interest above our families.” Mannal applied for a criminal complaint two weeks before the election, and held a press conference announcing it. Lucas filed a motion to dismiss, challenging the constitutionality of the statute. The election was held before any hearings in the matter took place.

Seventh Circuit’s Blagojevich Decision Upholds Conviction, But Condemns Prosecutorial Overreach

Published on: July 23, 2015 | by Ruth O'Meara-Costello

As anyone who wasn’t living under a rock in December 2008 is aware, Rod Blagojevich, then-Governor of Illinois, was arrested in that month and charged with committing numerous federal crimes. He was ultimately convicted of 18 of those charges—1 by the jury at his first trial, which was unable to reach a verdict on the remaining charges, and 17 at his second. The case has garnered significant legal debate with many legal commentators, including ZDB’s of counsel attorney Harvey Silverglate, questioning whether he had been singled out for prosecution for political business-as-usual. On July 21, 2015 the Seventh Circuit Court of Appeals issued its decision in the case, upholding the bulk of the convictions, but vacating the guilty verdicts on certain counts because the jury instructions could have allowed the jury to convict without any evidence that Blagojevich did more than engage in ordinarily political deal-making.

The charges that received the most attention in the press are also those which consumed the bulk of the Seventh Circuit’s analysis. After Barack Obama won the presidential election in 2008, Blagojevich, as the Governor of Illinois, was entitled to appoint someone to his vacated Senate seat. As the Seventh Circuit put it, Blagojevich “viewed the opportunity to appoint a new Senator as a bonanza,” and sought favors in return for the appointment from two different groups. First, he approached Obama, suggesting that he would appoint Valerie Jarrett in exchange for an appointment to the Cabinet, for Obama’s assistance in getting a lucrative job at a foundation after his term as Governor, or for a $10 million donation to a new organization he would control. Second, he approached supporters of Jesse Jackson, Jr., and offered to appoint Jackson in exchange for a $1.5 million campaign contribution. The Seventh Circuit had no trouble concluding that this second set of negotiations violated federal law, nor in condemning various other actions that Blagojevich took, unrelated to the Senate seat, as illegal. However, it viewed the evidence regarding Blagojevich’s negotiations regarding Jarrett’s possible nomination differently, concluding that while exchanging the seat for “a private-sector job, or for funds that he could control” would be illegal, a request for a position it the Cabinet in exchange for the appointment would not violate any of the various federal statutes that prosecutors invoked.

Commonwealth v. Bastaldo: Endorsing the Use of Scientific Information on Eyewitness Identification, the SJC Wades in to the Fray on How to Define Race and Ethnicity

Published on: July 8, 2015 | by Naomi Shatz

Six months ago we wrote about the SJC’s recent cases grappling with the fallibility of eyewitness evidence in criminal cases, and the provisional jury instructions the Court had drafted on this topic. Two weeks ago, the SJC again tackled the issue of eyewitness identification in Commonwealth v. Bastaldo, and revised the provisional model instructions with respect to cross-racial identifications.

In Bastaldo, the defendant was accused of assaulting the bouncer at a nightclub. The defendant identified himself as a “dark-skinned Hispanic of Dominican descent,”[1] and the SJC determined that he had “black” skin. He was identified in court by three witnesses: two self-identified as Caucasian, and one – the victim – was of Puerto Rican and Italian descent and self-identified as Hispanic. The SJC determined that this last witness had “brown” skin. The defendant requested an instruction on cross-racial and cross-ethnic eyewitness identification. The Commonwealth opposed the motion, arguing that at most the evidence suggested the witnesses may have had different ethnic backgrounds than the defendant, and that if any instruction were given it should not apply to the victim because he, like the defendant, was Hispanic. The trial judge declined to give a cross-racial or cross-ethnic identification instruction.

The provisional model jury instructions set forth in Commonwealth v. Gomes stated that “if witness and offender are of different races” the court should instruct the jurors that “research has shown that people of all races may have greater difficulty in accurately identifying members of a different race than they do in identifying members of their own race.” Because Bastaldo’s case was tried before the Gomes opinion was released, the Court determined that no cross-racial identification instruction had been required, and the trial judge had not erred in denying Bastaldo’s request for one. The Court, however, went on to modify the provisional model jury instructions set forth in Gomes to “direct that a cross-racial instruction be given unless all parties agree that there was no cross-racial identification.”