Criminal Defense

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.”

Recent Supreme Court Decision in Johnson v. United States Should Prompt Changes Beyond the ACCA

Published on: July 3, 2015 | by David Duncan

The federal Armed Career Criminal Act (ACCA) provides for an enhanced penalty, a mandatory minimum 15 year sentence, for felons possessing firearms who have previously been convicted of a combination of three serious drug offenses or “violent felonies.” Congress defined “violent felonies” in three ways: 1: crimes which have as an element use of force or the threat or attempt to use force against another; 2: arson, burglary, extortion or any crime that involves the use of explosives; and 3: any crime that “otherwise involves conduct that presents a serious potential risk of injury to another.” 81 U.S.C. § 924(c)(2). The last definition is known as the “residual clause” and it has been the subject of five Supreme Court decisions since 2007. In the most recent, Johnson v. United States, decided last week, the Court finally threw in the towel on attempting to construe this provision and held that it was unconstitutionally vague. In Johnson, the lower courts had held that Johnson’s prior conviction for possession of a sawed-off shotgun qualified as a “violent felony” under the residual clause. Initially the Supreme Court granted certiorari only to determine whether that offense qualified as an ACCA “crime of violence.” After argument on this narrow issue, however, the Court asked for supplemental briefing and argument on the constitutionality of the residual clause and eventually decided the broader, constitutional issue, holding that the clause was so vague that it violated due process.

So, as of June 26, 2015, there are only two definitions of “violent felony” that can serve as predicates for the enhanced ACCA mandatory minimum sentence: either the predicate offense must have as an element of the offense the use, threat of use or attempted use of force, or it must be arson, burglary, extortion or an offense involving explosives.

The federal Sentencing Guidelines, which provide for substantially increased sentencing ranges for so-called “Career Offenders,” may and should also be affected by Johnson’s holding. A defendant over 18 can be sentenced as a Career Offender for any two prior convictions of a “crime of violence or controlled substance offence” – a far larger population of defendants than those charged for being felons in possession of a firearm. U.S.S.G. §4B1.1(a). Because the definition for “crime of violence” is the same as the ACCA definition of “violent felony,” the First Circuit has construed them identically, such that precedent as to the ACCA definition is generally applicable to the Guidelines definition, and vice-versa. See, e.g., U.S. v. Williams, 529 F.3d 1, 4 n.3 (1st Cir. 2008) (authority interpreting one “generally persuasive” in interpreting the other); U.S. v. Almenas, 553 F.3d 27, 34 n.7 (1st Cir. 2009) (ACCA and Guidelines definitions read “in pari passu”).

“Your Passport and Your Laptop, Please”: A Possible Limit on the Government’s Authority to Search at the Border?

Published on: May 14, 2015 | by David Russcol

Imagine you are at the airport, either about to get on or just having gotten off an international flight. While you are minding your own business, a Customs and Border Patrol agent comes up to you and demands to look inside the laptop bag over your shoulder. Perhaps this request is more or less random. Maybe the government suspects you of criminal activity in general. Or you might have been targeted based on your political activity. In any case, the agent does not have reasonable suspicion that you have contraband such as child pornography on your laptop. Nonetheless, the agent compels you to turn on your laptop, allow the agent to poke around your files, and when you refuse to decrypt your password-protected private data, the agent seizes your computer and sends it to a cyber-specialist for forensic analysis. You only get the laptop back seven weeks later with help from the ACLU. Have your Fourth Amendment rights been violated?

Until recently, the answer was fairly uniformly “no.” The Supreme Court has held that the government has wide authority and discretion to search just about anyone and anything at the border based on its interests in securing the border and national security. The relaxed restrictions on government action have led some on both the right and the left to brand the area around the border a “Constitution-Free Zone.” (In fact, the government has established border checkpoints 100 miles from the border or even farther, asserting the authority to stop and search people arbitrarily, even far from Canada or Mexico.) For example, the government does not need to give any justification for holding an individual at the border for an hour or two while a mechanic removes the gas tank of his car to search for drugs.

Massachusetts SJC Holds Search Unlawful Absent Showing of Probable Cause that Defendant Was Not Registered for Use of Medical Marijuana

Published on: May 1, 2015 | by Ruth O'Meara-Costello

The rapid liberalization of Massachusetts marijuana policy—including decriminalization of possession of less than an ounce of marijuana and legalization of medical marijuana—has had dramatic consequences for the Massachusetts law regarding search and seizure, offering even some defendants whose conduct has not become legal an unexpected avenue of defense. We have written here before about the Supreme Judicial Court’s holdings that neither smelling marijuana (in a necessarily unknown quantity), nor seeing marijuana in an amount estimated to be less than an ounce, constitutes probable cause for a warrantless search following decriminalization of possession of less than an ounce of the drug. The SJC has now made it clear that the medical marijuana ballot initiative, too, changes the landscape for law enforcement seeking to search for and seize marijuana. The Court’s April 27, 2015 decision in Commonwealth v. Canning held that following passage of that initiative, “a search warrant affidavit setting out facts that simply establish probable cause to believe the owner is growing marijuana on the property in question, without more, is insufficient to establish probable cause to believe that the suspected cultivation is a crime.” To be entitled to a valid warrant, the officer must also establish that the person responsible is not registered to cultivate the marijuana for medical use.