COVID-19 Update: How We Are Serving and Protecting Our Clients
Published on:

Earlier this year, a state appellate court issued a written opinion in a Boston drug case involving the defendant’s motion for additional discovery related to the confidential informant that police officers used to conduct the pre-arranged buys that lead to the defendant’s arrest.

Police officers frequently use confidential informants, rather than an undercover police officer, as a part of their investigation when they suspect someone is selling drugs out of a house. Typically, police officers will give the confidential informant marked bills and wait in a car and watch as the confidential informant approaches the defendant’s home and engages in a transaction. The confidential informant will then return to the officers, bringing them whatever the defendant allegedly sold to them. However, often, the transactions occur inside the home, beyond the sight of the police officers. Based on their observations, police officers will then complete an affidavit for a search warrant, and search the home.

Of course, from the defense perspective, the use of confidential informants is concerning. First, these informants are often drug users themselves, who may have reason to curry favor with local police officers. Also concerning is the fact that it is not uncommon for confidential informants to be paid for their services, raising the issue of bias. In other words, maybe a confidential informant is making up allegations to make a few dollars. Finally, as a general rule, the identity of a confidential informant is protected, thus, they will not appear at trial and the defendant will not have an opportunity to confront them.

Published on:

The COVID-19 pandemic has had an enormous effect on the country’s ability to function. Schools, stores, and government functions have all been temporarily shut down. For the most part, this includes the Massachusetts court system. In fact, thousands of people who have been arrested and are awaiting trial have had their trial dates pushed back due to the pandemic. Most recently, the Massachusetts Supreme Judicial Court explained that no jury trials would be held until September, at the earliest.

Any delay in a Massachusetts criminal trial can be anxiety-inducing, as defendants often look forward to having their day in court where, hopefully, they can prove their innocence. For those defendants in state or local custody, the delay caused by COVID-19 is even more impactful, extending the amount of time they are away from friends, family, and employment opportunities. This is especially concerning because these individuals enjoy the presumption of innocence under the United States Constitution. However, despite that fact, the Massachusetts Supreme Judicial Court previously stated that the delay attributable to the COVID-19 pandemic would not count as calculable time under the state’s speedy trial laws. Thus, while most cases must be brought within 12 months of arraignment, under the current conditions, this period has been extended.

In a recent opinion, the Massachusetts Judicial Supreme Court extended its application of the above principle, holding that COVID-19-related delays will similarly not count towards the limits on pre-trial incarceration. The case arose when judges in three separate cases heard motions from defendants for pre-trial release. In each of these motions, the defendant asked the judge to consider the delay caused by the COVID-19 pandemic when calculating the number of days they had been in custody. Thus, under the court’s recent ruling, the days a defendant is held in custody pending trial from March 13, 2020, to September 8, 2020, will not count towards any actual calculation of pre-trial incarceration. The practical effect of this ruling is that many who are awaiting trial, and may otherwise have been entitled to release due to the delay, must stay in custody until they can afford to post bail or reach their trial date.

Published on:

In a recent opinion, the Massachusetts Supreme Judicial Court issued a ruling analyzing sentencing enhancements in crimes committed while in possession of a firearm. The underlying case involved a defendant who was tried and convicted of two counts of assault and battery by means of a dangerous weapon. The defendant was also tried under a Massachusetts law that provides enhanced penalties for those who commit crimes while in possession of a firearm. The statute specifically states that an individual who is found to have committed a crime punishable by imprisonment in state prison while in possession of a firearm must receive at least five years imprisonment in addition to the penalty for the underlying offense. The defendant appealed his conviction under this statute.

The defendant argued that his enhanced penalty could not be based on his underlying convictions for assault and battery by means of a dangerous weapon. The defendant argued that doing so was contrary to legislative intent and violated principles of double jeopardy. However, the court rejected his argument and denied his appeal. Speaking to legislative intent, the court noted that nothing within the statute prevented the Commonwealth from relying on the defendant’s specific underlying convictions. The court also interpreted the statute as intending to be used exactly as it had been in this case: to create an independent crime punishable by a separate sentence required to be served in addition to the underlying offense.

The court also stated that the defendant’s conviction and sentence did not violate the principles of double jeopardy. The prohibition against double jeopardy protects a person from being punished or tried twice for the same crime. In reaching its conclusion, the court pointed out that the statute creates a separate crime from the underlying root felony. Because the statute creates an entirely different crime from the underlying offense, a separate conviction and sentence do not violate principles of double jeopardy.

Published on:

Earlier this year, a state appellate court issued a written opinion in a Massachusetts gun case discussing the required elements that the prosecution must establish before a judge or jury can return a conviction. Ultimately, the court rejected the defendant’s argument that he lacked knowledge of the specifics of the weapon that subjected it to regulation. Instead, the court held that a defendant need only know that the weapon was a firearm “in the conventional sense of the word.”

The Facts of the Case

According to the court’s opinion, a group of friends were out for the night, stopping by several parties. As they arrived at a hotel after one of the parties, they met up with the defendant. After picking up the defendant, the group then went to another party. The defendant got out of the car, grabbed a weapon that belonged to one of the other occupants, and fired it twice into the air.

Police responded to the scene, but were unable to find the weapon of the bullets. They did, however, find two shell casings for a 9mm bullet. Police were also able to obtain surveillance video footage, showing a man raising an object into the air and then two flashes of light coming from the object. The defendant was arrested and charged with the unlawful possession of a firearm.

Continue reading

Published on:

As the COVID-19 pandemic continues to spread across the country, the nation’s prisons are quickly becoming hotspots for the virus. Indeed, a recent news article documents the pervasiveness of COVID-19 in state prisons across the country. Massachusetts prisons are no exception. A local news outlet recently reported that more than 150 inmates and staff have contracted the coronavirus in the state’s jails and prisons.

Given this reality, many have raised concerns over the safety of those who are in custody. Since the beginning of the pandemic, civil rights organizations and defense attorneys have tried to get the courts to release as many incarcerated people as possible, with some success. Recently, the Massachusetts Supreme Judicial Court handed down an opinion discussing how lower courts should handle petitions for release in light of the COVID-19 pandemic.

The Court first acknowledged the safety concerns surrounding the continued incarceration of individuals during the pandemic, noting that the “unprecedented and urgent conditions created by the global COVID19 pandemic necessitated judicial action to reduce the population of those held in custody.”

Published on:

Earlier this month, the U.S. Supreme Court issued an opinion that will have a significant impact on many Massachusetts criminal law cases. The opinion, Kansas v. Glover, presented the court with the question: whether a police officer can reasonably assume that the person who is operating a motor vehicle is that vehicle’s registered owner. The Court answered the question in the affirmative. The case is important because, under the Court’s new ruling, police officers can now pull over a vehicle for no reason other than the owner of that vehicle has an outstanding warrant.

The case arose when a deputy ran the license plate of a pick-up truck to find out that the registered owner’s driver’s license had been revoked. The deputy assumed that the person who was driving the car was the registered owner, and pulled over the vehicle. The deputy was correct, and the defendant was cited for driving on a revoked license.

The defendant argued that the deputy lacked reasonable suspicion to pull him over. Specifically, the defendant claimed that the deputy was relying on a “hunch” when he assumed that the driver of a vehicle was also the vehicle’s registered owner. The defendant also argued that the fact that the registered owner’s license was revoked decreased the likelihood that the driver of the vehicle was the registered owner.

Continue reading

Published on:

Earlier this month, a state appellate court issued a written opinion in a Massachusetts homicide case discussing the defendant’s motion to suppress evidence that was obtained from a cell phone that was in his pocket when he was arrested. Ultimately, the court concluded that while police officers legally seized the phone, they conducted an illegal investigatory search of the phone when they used it for “investigative purposes.”

According to the court’s opinion, the defendant was arrested on suspicion of murder. On the day of his arrest, the defendant had a cell phone in his pocket. The defendant’s brother and father went to the police station to give statements to detectives. The first question the detective asked the defendant’s brother was whether he had a cell phone. The brother responded that the defendant had his phone.

The detective continued to question the brother about the phone, asking for the code to unlock it. The defendant’s brother provided the correct code, and the detective unlocked the phone. The detective then asked additional questions about the phone, including how the phone’s screen got cracked. The defendant’s brother also told detectives he got the phone new about a year before, he gave them the phone number, and told them that the defendant used the phone “all the time.” Detectives then asked the defendant’s brother for consent to search the phone, which was given. Detectives discovered a video of the defendant discussing his role in the murder.

Published on:

Earlier this month, the Supreme Judicial Court issued a written opinion in a case involving a Massachusetts OUI arrest in which the defendant also had an open container of alcohol in the car. The case required the court to determine if the state’s prohibition on driving with an open container of alcohol constituted a criminal offense or if it was considered correctly a civil motor vehicle infraction. Ultimately, the court found that the open container statute was an “automobile law violation,” making it a civil motor vehicle infraction.

According to the court’s opinion, police pulled the defendant over under suspicion of driving under the influence. When police approached the defendant’s vehicle, they saw an open container of alcohol. Police charged the defendant with OUI and possessing an open container of alcohol in a motor vehicle. At trial, the jury found the defendant not guilty of OUI but guilty of the open container violation. The defendant appealed his conviction, arguing that the open container violation was not a criminal offense, and that it should have been resolved through a ticket.

The fundamental question posed to the court was whether the open container statute defined a criminal offense or a traffic violation. The court’s framework for answering the question was fairly sophisticated. First, the court noted that a “civil motor vehicle infraction” is one involving an “automobile law violation” that cannot result in imprisonment. The court then acknowledged that the open container statute did not provide for the possibility of imprisonment. Thus, the court’s next step was to determine if an open container violation was properly considered an “automobile law violation.”

Published on:

Earlier this year, a state appellate court issued a written opinion in a Massachusetts gun case discussing the “intent” element that must be established by the prosecution to find someone guilty of a discharging a firearm within 500 feet of a public building. Ultimately, the court determined that even an accidental discharge of a firearm can be the basis for such a charge, affirming the defendant’s conviction.

According to the court’s opinion, the defendant, who split his time between Maine and Massachusetts, owned a firearm. The defendant did not have a license in Massachusetts, but was eligible to own the gun in Maine, where no license is required. One day, the defendant had some friends over. One of the friends was interested in buying the gun from the defendant. The defendant took out the gun, showed it to his friend, and then went to put the gun back in the case. However, the defendant did not realize that there was a bullet in the chamber. When he pulled the trigger, which was necessary to do to disassemble the gun, it fired. The bullet went through his friend’s hand.

The defendant was charged and convicted of unlawful possession of a firearm, as well as with discharging a firearm within 500 feet of a public building. On appeal, the defendant argued that he could not be convicted of discharging the firearm, because he accidentally fired the gun. Thus, the court was tasked with determining whether the offense of discharging a firearm within 500 feet of a public building contained a requirement that the defendant intentionally fired a gun.

Published on:

Earlier this year, a state appellate court issued a written opinion in a Massachusetts gun case involving the legality of an inventory search that was performed by the arresting officers. Ultimately, the court concluded that the inventory search was not permissible because there was a passenger in the car that could have driven the vehicle from the scene, and the officers’ failure to give the driver that option rendered the search illegal.

According to the court’s opinion, police officers noticed a car with a defective rear brake light. The officers ran the tags, and discovered that the owner of the vehicle, the defendant, had an outstanding warrant. The officers pulled over the car.

The defendant was driving. The police officers asked both the defendant and his passenger for their drivers’ licenses, at which point the officers learned that the passenger had a valid license, had no warrants, and was not a suspect in any outstanding crime. The passenger was cooperative and did not appear to be under the influence.

Contact Information