Boston Lawyer Blog

DOJ Takes Necessary, But Not Yet Sufficient, Steps to Safeguard People from Warrantless Use of Cell-Site Simulator Technology

Published on: October 6, 2015 | by Zalkind Duncan & Bernstein LLP

Last month, The U.S. Department of Justice announced that it was implementing a new policy to govern the use of cell-site simulator technology, known also as “stingrays,” by federal law enforcement. The policy, available here, is intended to better protect suspects in criminal investigations and bystanders from intrusive, warrantless searches of data collected from their cellular phones.

A stingray is a small device—easily transportable in a car or even on someone’s person—that operates as a portable cell tower. Its signal reaches cell phones and other electronic devices in the area, which in turn transmit information through the stingray instead of through a proper cellular tower. The stingray can obtain information from all devices in the area, even those that are not in use. The problem is that the stingray is not owned or operated by a phone company. It’s owned and operated by the government, and law enforcement will collect and retain location and other identifying information from devices in range of the stingray. A police car that contains a stingray can drive down a road, or stop at a busy intersection, and collect data from electronic devices, without the owners of those devices having any idea that it is happening. The stingray works through walls, which means it can collect data from inside businesses and homes, and can accurately and precisely determine someone’s location. Even when the aim is to collect data from a specific person’s phone, it will also pick up data from bystanders who happen to be in the wrong place at the wrong time: that is, being in the vicinity of a law enforcement officer with a stingray. A stingray has other nasty side effects, too, including by draining device batteries by forcing them to transmit data even when they are not in use, and by disrupting cellular service to the area.

Judge’s Discovery Order in EEOC Transgender Litigation: Right Result, But Reason for Caution

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

I have written previously about the EEOC’s litigation on behalf of Aimee Stephens, whose employer—a Michigan funeral home—fired her when she announced that she was transitioning and would present as a woman at work in the future. At ZDB we have continued to follow this potentially groundbreaking federal litigation in the Eastern District of Michigan. In the most recent development, Magistrate Judge David R. Grand granted the EEOC’s motion for a protective order, seeking to prevent the defendant funeral home from violating Ms. Stephens’ privacy during the process of discovery in the case. While, given the nature of the discovery sought, this was patently the right outcome, the judge’s order could (and, in my view, should) have provided more assurance to future transgender litigants that they will be protected from attempts to use discovery as a tool to invade their privacy and humiliate them.

The discovery requests at issue sought detailed disclosures on numerous personal matters totally irrelevant to the ultimate issue in the case (which, following the court’s decision on the funeral home’s motion to dismiss, is whether the funeral home fired Ms. Stephens because she did not conform to its sex- or gender-based preferences, expectations, or stereotypes). Among those matters was Ms. Stephens’ medical history: the funeral home sought her medical and counseling records as well as asking whether she “currently has male sexual organs, including but not limited to, a penis and testicles”; whether she has had “any surgery performed to remove or modify any male sexual organs”; and whether she has undergone hormone therapy. The funeral home also sought to pry into Ms. Stephens’ family life, asking for detailed information on any past marriages (including all pleadings from any prior divorce), her biological offspring, her communications with her family regarding her transition, her wife’s feelings about the transition, and the current state of her marriage.

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 ›

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.