Boston Criminal Defense Lawyer Blog

Massachusetts Court Denies Defendant the Opportunity to Question Jurors Regarding Bias Towards Non-English Speakers

Published on: August 21, 2019 | by Patrick J. Murphy, Esq.

Jury selection in a Massachusetts criminal trial is a critical stage in any case. Because a defendant cannot be convicted unless a jury must unanimously find that a defendant was guilty of the crime charged, both prosecution and defense put a significant amount of effort into selecting jurors through a process called “voir dire.”

The voir dire process is guided largely by the judge overseeing the case. Generally, each side presents questions that they would like to ask potential jurors. The judge can approve or disapprove of specific questions, and may alter the phrasing on certain questions. Some judges allow counsel to ask the questions, while other judges ask the potential jurors the questions themselves. Of course, judges must follow certain statutory and constitutional principles during the process.

In a recent state appellate decision, the court affirmed the conviction of a defendant who was found guilty of indecent assault and battery, rejecting the defendant’s challenge to the lower court’s decision not to allow him to ask certain questions of the jury. Specifically, the defendant wanted to ask the jurors whether they had a bias against non-English speakers.

Massachusetts Court Discusses Sex Offender Registration

Published on: August 6, 2019 | by Patrick J. Murphy, Esq.

One of the most significant and burdensome collateral consequences of a Massachusetts sex offense conviction is the mandatory reporting requirement. After a conviction for a qualifying offense, the Sex Offender Registration Board (SORB), will classify the defendant as either “low,” “moderate,” or “high” risk, each carrying a different set of registration and reporting obligations. Recently, a state appellate court reviewed one man’s challenge to the SORB’s classification that he was a level two, moderate risk offender.

According to the court’s opinion, in 2015, the man was convicted of two counts of open and gross lewdness. Evidently, the man displayed his genitals to a neighbor through a window in his home. After his conviction, SORB classified the man as a level two, moderate risk offender. The defendant challenged the SORB determination.

First, the man claimed that SORB did not have the authority to label him a sex offender because his conviction did not qualify. Specifically, the man argued that a previous arrest for open and gross lewdness did not result in a “conviction.” Second, the man argued that SORB presented insufficient evidence to classify him as a level two offender.

How Batson v. U.S. and Subsequent Supreme Court Decisions Impact Massachusetts Jury Selection

Published on: July 19, 2019 | by Patrick J. Murphy, Esq.

In a Massachusetts criminal case, the jury consists of either six of twelve jurors. After a trial, a defendant cannot be convicted unless all jurors unanimously agree that the defendant was guilty of the crimes charged. Thus, if even one juror believes that a defendant is not guilty, the court will declare a mistrial, and the defendant will avoid a conviction. For this reason, the jury selection process in Massachusetts criminal trial is critical.

The history of jury-selection practices across the United States is an unfortunate one. While the jury-selection process allows prosecutors and defendants to strike jurors from the panel who they believe will favor the other side through what is called a peremptory strike, there are limits on the exercise of these peremptory strikes.

One of the most fundamental rights any criminal defendant enjoys is the right to be tried by a jury of their peers. This right, embodied in the Sixth Amendment, requires that a jury be drawn from a fair cross-section of society. Thus, in the case, Batson v. Kentucky, the U.S. Supreme Court held that the prosecution cannot use their peremptory strikes to eliminate jurors based on their race. Since then, the Court has considered numerous other cases involving race-based selection techniques, most recently with the case Flowers v. Mississippi.

Court Considers Massachusetts Manslaughter Case Involving Defendant’s Failure to Put Children in Car Seats

Published on: July 19, 2019 | by Patrick J. Murphy, Esq.

In June 2019, the Supreme Judicial Court of Massachusetts issued an opinion in a Massachusetts manslaughter case involving the defendant’s failure to put her two nephews in age-appropriate car seats. The court ultimately reversed most of the defendant’s convictions, finding that the prosecution failed to establish the defendant’s conduct was reckless or wanton.

According to the court’s opinion, the defendant was involved in a multi-vehicle accident in which her two nephews – aged four and 16 months – were fatally injured. The defendant and her four-year-old son were injured, but survived. At the time of the accident, the four-year-old was in the back seat with the seatbelt strapped but without a car seat; the 16-month-old child was in a front-facing car seat with the straps set too high.

The defendant was indicted on two counts of manslaughter, two counts of negligent motor vehicle homicide, and three counts of reckless endangerment of a child. The defendant was later convicted of two counts of reckless endangerment, one count of manslaughter, and one count of negligent motor vehicle homicide. The defendant appealed, arguing that she lacked the necessary mental state to find her guilty of manslaughter and reckless endangerment.

Federal Agents Make Three Arrests in Major Boston Drug Bust

Published on: June 26, 2019 | by Patrick J. Murphy, Esq.

Earlier this year, federal agents conducted an undercover sting operation resulting in the arrests of three men and the seizure of $100,000 in U.S. currency, as well as an additional $200,000 worth of the cryptocurrency, Bitcoin. According to a recent news report, covering the operation and subsequent arrests, the three men who were arrested are believed to be a part of a larger Boston drug syndicate.

Evidently, an undercover federal narcotics agent ordered MDMA from the darknet site “EastSideHigh.” The agent arranged to have the seller of the drugs leave them in a U.S. Post Office collection box in Stoughton. When the seller arrived on scene and transferred Bitcoin to the agents, they arrested him on Boston drug distribution charges.

After the first man’s arrest, officers obtained a search warrant for office space in Stoughton. When officers arrived to execute the warrant, they allegedly discovered the two other men in the office space, one of which was wearing a ventilator mask. Police told reporters they believe that the men would receive large shipments of drugs to the office, where they would process and manufacturer street drugs including MDMA, Ketamine, and Xanax.

What Constitutes the Crime of Burglary in Massachusetts?

Published on: June 3, 2019 | by Patrick J. Murphy, Esq.

Criminal statutes are not known for their clear, concise language, and the Massachusetts burglary statute is no exception. Indeed, a quick read of the state’s burglary statute will likely leave a reader confused about what constitutes burglary in Massachusetts. However, the crime of burglary can be broken down into a few elements.

All crimes have two basic requirements, which are the “act” element and the “intent” element. For burglary cases, the act element is broken down into a few parts. First, a burglary requires an entry into a dwelling of another party. A dwelling is a structure that is designed to be occupied, but this does not necessarily require that the structure is actually occupied at the time of the entry. While, technically speaking, this element requires actual entry into a dwelling, a failed entry may still result in a prosecution for attempted burglary.

The second element of a Massachusetts burglary offense is that the unlawful entry must occur at night. This requirement, which was inherited from the Common Law, has been abandoned in most states; however, it remains a required element in Massachusetts. That being said, unlawful entry into a dwelling during the day is still a crime; it is just not considered a burglary.

Court Upholds Conviction for Out-of-State Gun Owner Who Failed to Obtain Massachusetts License

Published on: May 22, 2019 | by Patrick J. Murphy, Esq.

Earlier this year, a state appellate court issued a written opinion in a Massachusetts gun possession case demonstrating how strictly the state’s gun laws are enforced. Ultimately, the court upheld the conviction of a man who was licensed to carry in New Hampshire but failed to obtain his Massachusetts license within 60 days of moving into the state. According to the court’s opinion, the defendant lived with his girlfriend. One day, the defendant got into a fight with his girlfriend and became verbally abusive. The defendant packed his belongings, including a gun that he kept in the closet, and left the residence. The defendant told his girlfriend that he was going to spend the night in New Hampshire; however, the defendant ended up going to a bar to have a few drinks.

Later that evening, the defendant came back to his girlfriend’s apartment and, again, was verbally abusive when confronted by his girlfriend about being intoxicated. Ultimately, the defendant’s girlfriend fled the apartment out of fear for her safety. She called the police and informed them that the defendant was in her apartment and had a gun. She was not sure if it was in the apartment or the car.

Police arrived on the scene, and confirmed that the defendant owned a weapon. Police asked to hold onto the gun for safekeeping. The defendant was not arrested that evening; however, his girlfriend sought and was issued a protection order. Later, the defendant was charged with the unlicensed possession of a firearm. The defendant was licensed to carry a gun in New Hampshire; however, he had not obtained his Massachusetts license at the time of his arrest. A jury convicted the defendant, and he filed an appeal.

Massachusetts Court Holds that Police Cannot Use GPS Trackers Without a Warrant

Published on: May 22, 2019 | by Patrick J. Murphy, Esq.

Instead April of 2019, the Massachusetts Supreme Judicial Court issued an important opinion in a Massachusetts drug case discussing whether police officers can use a GPS tracking device to track the location of a suspect without first obtaining a warrant. The court held that police needed to obtain a warrant, and, by failing to do so, anything they recovered as a result of the information obtained was suppressible as “fruit of the poisonous tree.”

According to the court’s written opinion, police officers were in the process of investigating a homicide and obtained the cellular site location information (CSLI) for one of the suspect’s phones. Police suspected that the homicide was drug-related, and that there were several people involved, including the defendant. The cell phone the police tracked was registered to the defendant but used by another individual. However, the police had reason to believe that the defendant would be traveling with the user of the cell phone.

The CSLI data eventually led police to the defendant’s residence, which was a three-story building with multiple rooms available to rent. Police knocked on the door and were admitted into the home. Police eventually made their way up to the third floor, where they encountered the defendant. The police explained that they were investigating a homicide and that they believed the suspect may be in the building. They also mentioned that narcotics were involved. The defendant gave his consent for the officers to enter his room and conduct a search. During the search, the police found $2,200 in cash and two bricks of cocaine. The cocaine was located in a crawl space. The trial court ultimately granted the defendant’s motion to suppress.

Court Approves Warrant Requiring Defendant Provide Password for Encrypted Phone

Published on: April 18, 2019 | by Patrick J. Murphy, Esq.

Last month, a state appellate court issued a written opinion in a Massachusetts sex trafficking case discussing whether the lower court could compel the defendant to enter a password so that the prosecution could execute a search warrant that was obtained for the defendant’s cell phone. Ultimately, the court concluded that the defendant could be compelled to enter the password and that it was not a violation of his right to be free from self-incrimination.

According to the court’s opinion, the defendant was arrested on suspicion of sex trafficking. When he was arrested, the defendant had two cellular phones with him. The prosecution’s evidence suggested that the defendant used the phone to communicate with several women. The prosecution successfully obtained a warrant to search the contents of the phone. However, the phone was encrypted, and the prosecution did not have the technology necessary to unlock the phone. Thus, the prosecution sought to compel the defendant to unlock the phone. The defendant claimed that requiring him to enter the password would require he incriminate himself.

The lower court denied the prosecution’s request to compel the defendant to enter the password, and the prosecution appealed.

Massachusetts Court Determines Strip Search of Defendant Was Unsupported by Probable Cause

Published on: April 12, 2019 | by Patrick J. Murphy, Esq.

Last month, a Massachusetts appellate court issued an opinion in a Massachusetts drug case describing the circumstances under which a strip search is appropriate. In this case, the court held that the strip search conducted by police was unsupported by probable cause, and violated the defendant’s constitutional rights to be free from unreasonable searches. Thus, the court granted the defendant’s motion to suppress the narcotics that were recovered as a result of the search.

According to the court’s opinion, police officers were in an unmarked car in a high-crime area conducting surveillance. During their surveillance, the officers noticed the defendant, who was standing on the sidewalk outside an apartment complex. Over the course of 20 minutes, the defendant went in and out of the house several times. At one point, an individual approached the defendant, and the two went around the corner for a few moments before returning. Police officers believed that the defendant was engaged in the sale of narcotics.

When another individual approached the defendant, police followed as the two men walked around the corner. One officer saw the two men standing face-to-face, and believed he was witnessing a drug transaction. The officers stopped the other man, searched him, and found a bag containing about $20 worth of cocaine. Police then patted the defendant down, finding $20, but no narcotics. Police arrested the defendant, transported him to the police station and booked him. Because the officer believed that it was common for street-level drug dealers to conceal narcotics in their groin area, the officers instructed the defendant to undress. Once the defendant was completely naked, the officers saw a red bandana, and inside the bandana were seven packets of cocaine.