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Recently, a state appellate court issued an opinion affirming a lower court’s decision not to reduce a defendant’s bail as he awaits trial for several Massachusetts sex offenses, including indecent assault and battery on a person age fourteen or older. The case highlights the challenges many defendants face—even during the COVID-19 pandemic—when trying to secure pretrial release.

Under state and federal law, courts must only consider certain factors when setting a defendant’s bail. In general, bail should not be a punishment to keep someone incarcerated while they await trial. Instead, bail should be used to secure their presence at trial. When determining what amount of bail is appropriate, courts consider the following factors:

  • The nature of the offense;

Recently, the Supreme Judicial Court issued an opinion in a Massachusetts murder case. The case arose after three individuals were murdered, and their dismembered bodies were found in plastic bags. The Commonwealth’s case hinged on the premise that the defendant and two others murdered the victims to prevent them from testifying against one of the accomplices. The parties were tried separately and convicted of three counts of first-degree murder.

Amongst several contentions, the defendant argued that evidence of his membership in the Aryan Brotherhood was impermissible. He contended that the evidence carried a risk of substantial unfair prejudice and outweighed any probative value. Specifically, he argued that the judge’s ruling permitting anatomical drawings, photographs of weapons and evidence of his membership in the Brotherhood was an abuse of discretion. In response, the Commonwealth alleged that the evidence was relevant and admissible. The court focused on the evidence implicating the parties in the murder.

Under the Massachusetts Rules of Evidence, the law prohibits the prosecution from introducing “prior bad act” evidence to illustrate a defendant’s bad character. However, the evidence is admissible for non-propensity purposes. Courts maintain a great deal of discretion when determining whether evidence is unfairly prejudicial to a defendant. Here, the Commonwealth argued that the evidence was properly admitted for two non-propensity-related reasons. First, the evidence shows how one of the accomplices induced another to help bury the victims’ remains; second, how the defendant’s admission to another member of the Aryan Brotherhood enhances the jailhouse informant’s credibility.

In a recent opinion, the Supreme Judicial Court vacated a Massachusetts defendant’s possession of a firearm conviction. The case arose when a state trooper followed the defendant’s vehicle and activated his lights to stop the defendant for driving five miles over the speed limit. The defendant sped, parked, and fled while the police pursued him. When the police reached the defendant, he threw something from his pocket into a dumpster. Officials later recovered a baggie of crack cocaine in the dumpster, and a vehicle search revealed several items, including a pistol with several rounds of inserted ammunition. After reading the defendant his Miranda rights, a police officer inquired about the items in the vehicle, and the defendant stated that he ran because of the drugs and he did not know about the handgun.

Amongst other issues, the defendant argued that under Commonwealth v. Brown, a defendant could only be convicted of possessing a loaded firearm, if the Commonwealth proves that the defendant knew that the firearm was loaded. The defendant argued that this decision is retroactive, and therefore the Commonwealth did not meet their evidentiary burden.

In most cases, Massachusetts courts do not analyze whether a decision applies retroactively or prospectively. Generally, courts retain discretion to apply the decision only prospectively. Courts will look to whether the retroactive application is consistent with the rule and whether it would result in significant “hardship or inequity.” In this case, the court did not find any reason to only apply the decision prospectively. In analyzing the statute, the court found that the element of knowledge required by the lesser included offense of unlawful possession of a loaded firearm, must be evident to convict the defendant of the greater offense. Moreover, the court reasoned that the Commonwealth’s purported hardship from their lack of warning that they needed to prove the knowledge element is outweighed by the risk that the defendant would be unlawfully convicted of a crime.

In a recent opinion, a state appellate court vacated a jury verdict that found the defendant guilty of a Massachusetts drug offense. The jury convicted the defendant of distributing and of committing the crime within one hundred feet of a public park. The defendant appealed the second portion of the conviction, contending that prosecutors did not prove that the park was “public” in accordance with the statute.

According to the record, the police detective solicited sellers on an online forum, purporting to look for SKI, which is a street term for cocaine. The defendant responded, and the two communicated through text and agreed on the terms of the deal. The detective asked the defendant to get together in a lot near a highway. When the detective arrived, the transaction took place, and the defendant was arrested after departing the meeting location. The location was a parking lot of a public recreation area with vast acreage. Some testimony explained that the town owned portions of the park; however, there was no evidence of which specific areas the government owned. The defendant did not contest her involvement in the transaction; however, she argued that, under the law, the location was not in a public park, as defined by the relevant statute.

Under the relevant law, a “public park” is one that is open to the public and owned or maintained by a governmental entity. The known definition of a “park,” is a “tract of land maintained by a city or town”, for public recreation or beauty. Case law maintains that inquiries regarding ownership and maintenance of a park are a jury question. Questions regarding whether a park is “public” require courts to review the word’s plain meaning.

Recently, the Massachusetts Supreme Judicial Court vacated a lower court’s order permitting a defendant’s motion to suppress evidence. The Massachusetts criminal case arose when police arrested the defendant in connection with a fatal shooting. According to the court’s opinion, officers confiscated the defendant’s cell phone and then obtained a search warrant to search it for evidence. Before trial, the judge granted the defendant’s motion to suppress the cell phone evidence. The judge reasoned that the police obtained the warrant without establishing a sufficient nexus between the murder and the defendant’s cell phone. She did not address whether the search was “sufficiently particular,” but she noted that the search was not “limited in time.” The Commonwealth appealed and the court reviewed whether there was probable cause and if the search exceeded the scope of the warrant.

The Fourth Amendment and Massachusetts Declaration of Rights require that a magistrate determine whether probable cause exists before issuing a search warrant. There must be a “substantial basis” that lead a fact finder to determine that the items sought are related to the criminal activity under investigation, and in the place to be searched when the warrant is issued. Essentially, along with probable cause, the government must establish a “nexus” between the item sought and the alleged crime. Probable cause inquiries are fact-based, and courts resolve them on a case-by-case basis.

In this case, an eyewitness described seeing a male standing over the victim then fleeing the scene in a light-colored vehicle with an out-of-state license plate. Another witness saw a light-colored sedan driving quickly down a street. He then saw the car’s occupants moving around in the car, as if they were changing their clothes. When police arrived, they found the three men, including the defendant, sitting in the car. After realizing that one of the men matched the shooter’s description, police removed all three men from the car. At the time, the defendant was talking on his cell phone. Officers discovered a firearm that had recently been fired. Moreover, the victim’s cell phone contained a violent conversation between the victim and a contact believed to be one of the occupants. After that, the detective received a warrant to search the defendant’s cell phone. The warrant did not have any date restrictions.

When investigating crimes in Massachusetts, law enforcement officers rely on a variety of methods. In most cases, police rely on statements from the alleged victim, physical evidence they gathered from the scene, video surveillance, and a host of other types of tactics. However, what can police officers do if no one recognized the suspect? A video is useless if there is no one to compare it to, and without a name, police may run into a dead-end.

In situations like the one described above, police may rely on newly-available facial recognition software to identify a suspect. Facial recognition software allows law enforcement officers to put a suspect’s picture into the program, and compares the photo to thousands of others in a database, looking for a match. While this may sound like it would work well in theory, in practice, facial recognition software has been responsible for several recent wrongful arrests, and an unknown number of wrongful convictions. Perhaps most concerning is the fact that facial recognition programs tend to not work as well when attempting to match Black or Asian faces.

According to a recent article by the New York Times, police wrongfully arrested a man after mistakenly believing that he committed a serious crime. According to the article, police responded to a call reporting a man stealing candy from a store. When police arrived, they found the man, who apologized and offered to pay for the items. He gave police his ID; however, when police went back to run it through their system, they realized it was a fake. The man fled, nearly hitting a police officer with his car.

Recently, a state appellate court issued a decision in a defendant’s motion to dismiss a Massachusetts gun charge. The Commonwealth charged the defendant with a weapons charge in violation of § 10(n), but it did not charge him with the predicate offenses of § 10(a) or (c). A district judge dismissed the case because of a defect in charging, and the Commonwealth filed a second complaint based on the same conduct. The defendant moved to dismiss the case based on a violation of Double Jeopardy principles.

The Double Jeopardy Clause of the Fifth Amendment mandates that a “person cannot twice be put in jeopardy for the same offense.” The rights create protections against a second prosecution for the same offense after acquittal and conviction. Additionally, it protects defendants from multiple punishments for the same offense. The law also bars retrials of defendants whose initial trial ends without a conviction, except in cases where the court declares a mistrial because of “manifest necessity.” Courts reviewing double jeopardy claims generally consider four factors, judicial estoppel, attachment, the character of the terminating order, and whether a mistrial occurred.

Judicial estoppel prevents parties from taking a position in a case that is contrary to their position in earlier proceedings. In this case, the court found that the motion judge was incorrect in finding that the defendant was estopped from arguing for dismissal based on the Fifth Amendment. Next, in reviewing attachment, the court must determine whether jeopardy attached in the first proceeding. The court found that case law has long made clear that jeopardy attaches when a jury is empaneled and sworn. Therefore, here, jeopardy attached in the first proceeding at that point. The court then reviews whether the termination was based on an acquittal or procedural. Here, the termination was procedural and did not constitute an acquittal; therefore, the inquiry moves to whether the judge declared a mistrial. In this case, the defendant did not consent to prosecution, and he did not invite a mistrial. The court found that judicial estoppel should not preclude the defendant’s fifth amendment claim. Moreover, because there was no manifest necessity for a mistrial, the court granted the defendant’s motion to dismiss on double jeopardy grounds.

Most people are familiar with the fact that a defendant can file an appeal if they are convicted of a Massachusetts crime. One aspect of the appellate process that is less commonly realized is that the court does not necessarily need to suspend a defendant’s sentence pending appeal.

Recently a state appellate court issued an opinion in a Massachusetts drug trafficking appeal in which the defendant challenged the court’s decision to keep her on house arrest while her appeal was pending. In that case, the defendant was arrested and charged with several drug offenses back in 2014. At her arraignment, the defendant was released on her own recognizance, meaning she was not required to post bail. House arrest was not a condition of her release, and she showed up at every court date without issue.

At trial, a jury convicted the defendant of drug trafficking, and the judge sentenced her to five years of incarceration. The defendant appealed her sentence, which, if granted, may require a new trial. The defendant asked the court to suspend her sentence while her appeal was pending. In support of her request, the defendant told the court that all her family lives in the area and that she was released on her own recognizance pending trial without ever missing a court date.

Last month, a state appellate court issued a written opinion in a Massachusetts drunk driving case, discussing whether a police officer can take a motorist’s blood against their will. Ultimately, the court concluded that any involuntary blood testing done at the direction of the police without the defendant’s consent is inadmissible at trial.

The Facts of the Case

According to the court’s opinion, the driver of an SUV lost control while exiting the highway, causing her vehicle to spin out of control, blocking most of the off ramp. A few moments later, the defendant’s vehicle collided with the woman’s SUV. The SUV struck the woman, who was standing along the road’s edge, seriously injuring her.

When the police arrived, they noticed that the defendant exhibited signs of intoxication, including bloodshot eyes and an unsteady gait. He also smelled of alcohol and had a gash on his head. The defendant was transported to the hospital, where a nurse noted he may have suffered a concussion.

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Under Massachusetts’ law, individuals convicted of sex offenses may need to provide identifying information to a state reporting agency, commonly referred to as the “sex offender registry.” Lawmakers maintain that the Massachusetts Sex Offender Registry assists their agency with identifying sex offenders and reducing the likelihood of recidivism. After conviction and during sentencing, these individuals will receive a classification level, depending on their crime, dangerousness, and likelihood of re-offense.

The most common crimes requiring sex offender registration are battery, rape, indecent assault, assault with the intent to commit rape, kidnapping, drugging a person for sexual intercourse, inducing a minor into pornography, prostitution, and sex trafficking. Under Massachusetts’s law, convicted sex offenders must register with the Massachusetts registry if they live, work, or attend school in the state. Additionally, the law requires that these individuals update their information if they have a secondary address in the state, are moving to the state, become homeless, work in Massachusetts, or live in another state, but attend school in Massachusetts.

The registry requires these individuals to report their full legal name, any aliases, home addresses, and work addresses. Work addresses include all forms of employment, including part-time and volunteer work. The registrant must include their physical characteristics, including height, weight, eye and hair color, and identifying marks. Higher-level registrants must include fingerprints and photographs. Those convicted of federal sex offenses may need to register through the state and National Sex Offender Registry.

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