Boston Lawyer Blog

How are Accused Students’ Lawsuits over Sexual Misconduct Discipline Faring?

Published on: August 21, 2015 | by Naomi Shatz

Much has been made about allegations of sexual assault on college campuses in recent years. At first the discussion centered on victim’s rights advocates’ claims that colleges swept allegations of sexual assault under the rug. Starting in 2001, and escalating in 2011, the U.S. Department of Education’s Office for Civil Rights (OCR) began issuing guidance dictating how federal funding recipients (i.e. virtually all colleges and universities) should handle sexual assault claims. Many point to the OCR’s 2011 “Dear Colleague” letter, which instructed schools to lower the standard of proof they use in these cases to a “preponderance of the evidence” standard, as a turning point in the national discussion about college sexual assault. As we have previously noted on this blog, schools jumped to follow OCR’s guidance for fear of losing federal funding.

As the policies and procedures that have been implemented in the wake of the 2011 OCR “Dear Colleague” letter have gone into effect, there has been a sea change in how schools address allegations of sexual assault by and against their students. Recently, journalists, legal experts, and those of us who represent accused students have raised concerns that the procedures put in place to address sexual assault claims do not comport with basic notions of fairness or due process, and therefore may not be accurate at determining whether sexual assault has actually occurred. As those concerns were first being aired in the public discourse, students who had been disciplined by their schools following sexual assault adjudications began to sue the schools, alleging that they had violated their rights to due process, had violated Title IX itself, and had violated contracts the students had with the schools. To date, at least seventy-seven men have filed suit against their colleges on these grounds.

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.

Substantial Statistical Disparities in a Workforce Do Not Justify Gender-Based Hiring Policies

Published on: August 4, 2015 | by Emma Quinn-Judge

On Friday, the Supreme Judicial Court reminded the Boston police department (“BPD”) that it cannot give women a special hiring preference and thereby discriminate against men simply because there are woefully few women in the department. Sean Pugsley sued for discrimination after the BPD deliberately bypassed its main certification list for hiring in order to hire twenty-eight women. In Pugsley v. Police Department of Boston, the SJC struck a delicate balance, leaving intact the BPD’s hiring decision while criticizing the BPD for the manner in which it conducted its hiring. Specifically, the SJC dismissed Pugsley’s case, holding that he had no right to sue (or, to be technical, he had no standing) because he was so far down the BPD’s hiring list that he could not show anything more than a speculative injury.

The case arose from a hiring process that began around March 2010. The BPD hires candidates by considering the following groups in order. First, it may consider any qualified cadets (up to thirty-five or one-third of a Boston police academy class). Then the department turns to a “main certification” list. Top priority on the certification list goes to candidates for “reemployment” – meaning, generally, anyone who has been laid off from the police department. The next category is for those with a preferred hiring status, such as veterans. The remainder of the list ranks all other individuals based on their scores on the most recent civil service exam. Pugsley was the top candidate in this last category; however, because of the other preferences, he ranked 214 on the main certification list.

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”).

Are Courts Becoming More Willing to Review Excessive Force Claims?

Published on: June 29, 2015 | by Emma Quinn-Judge

Over the last few weeks, in the midst of our ongoing national discussion about law enforcement use of force, both the Supreme Court and the Massachusetts Supreme Judicial Court (“SJC”), in Kingsley v. Hendrickson and Commonwealth v. Asher, have joined the conversation with decisions reviewing use of force incidents. While these two recent cases are very different in that they address distinct areas of the law and distinct factual contexts for the use of force, they share at least one striking similarity: in both Kingsley and Asher, the high courts give no deference to claims by law enforcement officers that their use of force was reasonable. Instead –and in contrast to the many other decisions where courts have shown a troubling willingness to rationalize even the use of deadly force by law enforcement – these recent decisions suggest that in certain cases courts may now be willing to engage in a more careful review of law enforcement action.

In Kingsley v. Hendrickson, a decision issued Monday, June 22, 2015, the Supreme Court assessed what a pretrial detainee alleging that jail officers used excessive force against him would need to show to prove that the force used was unreasonable. Michael Kingsley was arrested in Wisconsin on a drug charge and detained in a county jail pre-trial. During his detention Kingsley refused multiple requests by officers to remove a piece of paper covering the light fixture above his bed. When officers eventually came to his cell to remove the paper, Kingsley refused to comply with their directions. He was removed from his cell, handcuffed, and placed face down on a bunk with his hands behind his back. An officer then placed his knee in Kingsley’s back. According to Kingsley, that officer and another officer slammed Kingsley’s head into the concrete bunk. (The officers denied this specific allegation.) All parties agree that Kingsley – who was still handcuffed with his face on a bunk – was then stunned with a taser to the back of the head for approximately 5 seconds.

Massachusetts Appeals Court affirms free speech restrictions on harassment prevention orders

Published on: June 22, 2015 | by Ruth O'Meara-Costello

In 2010 the Massachusetts legislature made a significant change in the law when it created harassment prevention orders, restraining orders that plaintiffs can seek to protect themselves against harassing behavior regardless of their relationship to the harasser. (Before 2010, people seeking restraining orders in Massachusetts could receive protection only under an abuse prevention order, available only against abusers who are “family or household members” of the plaintiff seeking the order, a definition which includes anyone with whom the plaintiff has been in a serious dating relationship or with whom she has a child.) Because the harassment prevention law is relatively new, the state courts are still refining when these orders are and are not available. In the cases interpreting the law, it has become clear that the courts are struggling to strike a balance between protecting victims of real harassment from harm and unduly restricting free speech.

In a new decision issued this month in the case of Petriello v. Indresano, the Massachusetts Appeals Court has given courts considering whether to issue harassment prevention orders some important guidance, which should guide those seeking (or defending against) such orders going forward. The plaintiff in the case was an elderly woman’s representative acting under a power of attorney, seeking a restraining order against members of her deceased husband’s family. The plaintiff’s representative testified at the hearing, describing “constant . . . belittling, abuse.” The elderly woman had to go to the hospital due to apparent distress related to this conduct, and an outside investigation substantiated allegations of elder abuse against her. The district court issued a harassment protection order.