Massachusetts Criminal Defense Lawyer Blog

Massachusetts drug crimes lawyer comments on case before Maryland Court of Appeals regarding disclosure of confidential informant

December 27, 2010 | by Michael DelSignore

In many Massachusetts drug arrests, the police will claims as a basis for obtaining a search warrant of a residence that a confidential informant provided information that the residence was being used for drug trafficking or distribution.

As a Massachusetts drug crimes lawyer, it is sometimes necessary to file a motion to require the Commonwealth to disclose the identity of the informant in order to prepare a defense to the charges. In some cases, an informant may provide relevant information for the defense while in other cases a court order for disclosure may force the Commonwealth to dismiss the case rather than to disclose the informant’s identity.

In Commonwealth v. Shaughessy, 455 Mass. 346 (2009), the Massachusetts Supreme Judicial Court held that in order to obtain disclosure of the identity of a confidential informant a defendant has the burden of showing that the informant would provide information that is material to the defense. If this showing is made, then the privilege can be overcome. The purpose of the privilege is to assist the police in obtaining information without the informant fearing retribution as a result of cooperating with the police. This privilege has limitations under the Sixth Amendment Confrontation Clause of the United States Constitution. The leading case on the issue of disclosing confidential informants in drug cases is the United States Supreme Court case of Roviaro v. United States, 353 U.S. 53 (1957).

Recently, the National Association of Criminal Defense Lawyers submitted an amicus brief to the Court of Appeals of Maryland in the case of Elliot v. State on the issue of whether the Maryland court improperly denied the defendant access to the identity of the confidential informant. Click here to read the brief of the National Criminal Defense Lawyers.

In Elliot, the defendant argued that there was no need for the privilege as the identity of the informant was already known and secondly that disclosure of the informant was necessary as a matter of fairness as the informant would potentially be a material witness for the defendant. In defending the charge of possession of drugs with the intent to distribute, the defendant in Elliot claimed that the informant entrapped the defendant and asserted as his defense that he had no knowledge that there were drugs in his car. Clearly, cross examination of the informant may provide strong evidence for the defendant in providing a motive for the informant to frame the defendant in attempt to gain favor with the police; further, disclosure of the informants identity would allow the criminal defense attorneys to gain other valuable discovery, such as the criminal record of the informant to uncover a motive to lie on the part of the informant.

As a Massachusetts criminal defense lawyer, I believe that the Maryland Court of Appeals should reverse the lower court’s decision and its decision may provide valuable precedent in defending Massachusetts drug crimes. To read the decision of the Maryland Court of Appeals in Elliot v. State click here.
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Forensic science plays role in few Massachusetts criminal cases

November 16, 2010 | by Michael DelSignore

The Boston Globe recently published an excellent report on the impact television forensic shows, such as CSI, have in the real-world courtroom.

In reality, a Massachusetts criminal defense lawyer can frequently challenge the available evidence in many crimes — it is the defendant’s statements that are much more likely to be a problem. Television is Hollywood and real life isn’t. The vast majority of cases do not have DNA evidence, which is expensive and time consuming. Other “forensics” seen on television might be available to the CIA (and we only say might), but is not going to be used by Massachusetts law enforcement anytime soon. For instance, detectives are not going to determine what type of motorcycle a defendant was using during a robbery by matching the sound of its exhaust caught on surveillance video — which was an actual episode of a popular television forensics show.

In fact, the popularity of such shows can cause problems in a trial — particularly when jurors think such evidence should be available if prosecutors or the defense just used a little more effort. A 2006 study of 1,000 Michigan jurors found that nearly half expected to see some form of scientific evidence in every criminal case. Nearly 75 percent expected to see it in murder trials. Of even greater concern, is that people trusted such evidence almost blindly; a study of 1,201 California jurors found scientific evidence such as DNA or fingerprints, was considered far more reliable than testimony from police officers, witnesses or the victims themselves.

So it goes without saying that it is critical to select a Massachusetts defense attorney who has the knowledge and experience to challenge all manner of forensic evidence while convincing a jury of its relative value.

Meanwhile, a new study of 400 murder cases found that the presence of forensic evidence had very little impact on whether an arrest was made, charges were filed, or a conviction was handed down in court. Just 13.5 percent of murder cases had physical evidence linking the murderer to the crime scene or the victim. If you are a defendant without an experienced and aggressive defense lawyer, that is a truly frightening statistic. In other words, the state wants you to believe that more than 85 percent of murder defendants are guilty because prosecutors say so.

According to the research, biological evidence was found 38 percent of the time, fingerprints 28 percent of the time, and DNA in just 4.5 percent of homicides. Research yet to be released shows that forensic evidence also plays a minimal role in other types of crimes, including robbery and burglary. Forensic evidence is collected in less than a third of such cases and is submitted to the lab just a small fraction of the time.

Meanwhile, the National Academy of Sciences is questioning whether certain methods used in forensics are even scientific and is decrying the lack of standards and certification. Problems are commonplace: In 2008, Detroit shut its crime lab after an audit found a 10 percent error in ballistics testing; New York State Police have come under fire for overlooking evidence that a crime lab was fabricating data; and a San Francisco crime lab was closed after it was revealed that an analyst was allegedly skimming illegal drugs for personnel use.

Massachusetts hasn’t escaped problems. In 2007, the Executive Office of Public Safety found a backlog of more than 16,000 cases awaiting DNA testing. In fact, DNA backlog is a nationwide problem that has cost $330 million since 2004 and is one of the primary reasons an individual case is unlikely to be tested.
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The Massachusetts Court of Appeals decided a significant case for Massachusetts Domestic Assault and Battery Lawyers

November 12, 2010 | by Michael DelSignore

The Massachusetts Court of Appeals decided a significant case for Massachusetts Domestic Assault and Battery Lawyers. In Commonwealth v. Belmer, decided October 14, 2010, the Massachusetts Appeals Court permitted an affidavit in support of a 209A restraining order to be used as substantive evidence. This ruling was critical because the victim originally claimed that the defendant, her husband, struck her 15 year old son, but recanted the testimony at trial. Her son was brought to the Boston Emergency Center where he was given stitches for his lip.

The mother wrote in her 209A, restraining order affidavit, that her son intervened when he heard her arguing with the defendant. According to the 209 affidavit, the defendant started a fight with the 15 year old boy. In addition to signing an affidavit, the mother testified as to what occurred between her son and husband at the 209A hearing.

At trial, the judge allowed the prosecutor to question the child’s mother regarding her 209A affidavit and testimony at the 209A hearing. At trial, the mother recanted her testimony claiming that the fight was purely verbal and that the defendant was talking with his hands and accidentally struck her son with his elbow. The mother claimed that her trial testimony differed from her affidavit because she was angry at the time she made the affidavit, about the fact of the defendant’s infidelity and that her son was injured.

The Commonwealth also admitted the medical records of the child at the Domestic Assault and Battery trial. The EMT records stated that the victim reported being struck. Additional medical records also recounted that the victim stated that his father struck him in the face with a closed fist.

The Commonwealth, relying on the case of Commonwealth v. Daye, 393 Mass. 55 (1984) argued that the prior inconsistent statements of the victim should come into evidence as substantive evidence. Under Daye, a prior inconsistent statement can be used as evidence of the criminal offense charged when the following criteria are met: First, the maker of the statement must be available for cross examination, the maker of the statement must have a memory of the prior statement and that statement must be the maker’s own words rather than a response to a questions, like a yes or no answer or other leading question. The Daye court further noted that the prior inconsistent statement cannot be the sole basis for the conviction but must be corroborated by some other evidence.

It appears that significant to the court’s decision in Belmer finding that the prior inconsistent statement was corroborated was the fact that the medical records were admitted into evidence without objection. Generally, medical records as to how an event, such as a domestic assault and battery would be inadmissible without the live testimony of the maker of the statement. It appears that the victim of the assault and battery never testified; accordingly, as a Massachusetts criminal defense lawyer, it appears as though the medical records should have been excluded from evidence as inadmissible hearsay. Had these records been excluded, it is difficult to see how the court would have found the corroboration rule satisfied.

The Belmer case is a significant case for defending domestic assaults in Massachusetts as it shows how the Commonwealth can proceed to trial even with a hostile witness. Accordingly, it is important to hire an experienced criminal defense lawyer to represent you in court and to fight your case at trial.
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Challenging a Massachusetts OUI drug charge in Court and attacking the drug recognition officer

September 30, 2010 | by Michael DelSignore

Charge of driving under the influence of drugs, DUI or OUI drugs are on the rise in Massachusetts and throughout the country. Police departments have undertaken increased training of officers in order to detect motorists under the influence of drugs. A charge of OUI drugs in Massachusetts can be difficult to prove as the signs of a motorist being under the influence of drugs are less obvious than the signs of someone under the influence of alcohol. Further, many officers are not trained in how to investigate whether someone is under the influence of drugs.

Officers will generally undertake what is known as a 12 step Drug Recognition Exam to determine whether a motorist is under the influence of drug.

The 12 steps are as follows:
1. Breath alcohol test to rule out alcohol as a cause of the impairment.
2. interview with the motorist where the officer attempts to gain admissions regarding consumption of drugs.
3. The officer inquiries about the suspects medical condition, looks for signs of illness or injury, suggesting drug use, checks the pulse and looks at the eyes to see how they react, whether they are bloodshot and for signs of trauma.
4. An eye examination is performed where the officer will administer a horizontal gaze and nystagmus test, which is also used for investigating charges of operating under the influence of alcohol. The officer will also perform a Vertical Gaze and Nystagmus test, which is typically not used in OUI alcohol cases, but tests the ability of the suspect to tract an object up and down. Under Commonwealth v. Sands, in many Massachusetts OUI arrests the Commonwealth is unable to get HGN evidence admitted at trial.
5. Field sobriety tests, such as the Romberg Balance, walk and turn and finger to nose, all commonly given in OUI alcohol cases, though the Romberg balance test is used less frequently in Massachusetts OUI cases.
6. Vital Signs are checked, pulse, temperature and blood pressure.
7. a darkroom examination is performed where the defendant’s pupils are measured in four different lighting conditions and the oral and nasal cavities are also examined for signs of ingestion.
8. a physical examination is performed for muscle rigidity.
9. search for needle marks 10. further questioning of the defendant
11. opinion is given by the officer 12. toxicology exam to determine the presence of drugs.

Courts in other jurisdictions have allowed an officer to testify as to the DRE process but have held that the process is not scientific and that officer should not be referred to as experts, but that the process simply aids the officer in making observations. The case of State v. Klawitter, 518 N.W. 2d 577 (Minn. 1994), from the Minnesota Supreme Court provides an excellent discussion of the issues facing courts when confronting DRE testimony. A recent case from Wisconsin, City of Mequon v. Haynor, from the Wisconsin Court of Appeals followed Klawitter but also expressed some reservations about the Drug recognition protocol. Both courts allowed testimony about the 12 steps process subject to a proper foundation being laid and allowed the jury to assign any appropriate weight to the process.

Massachusetts criminal defense lawyers faced with a DUI drugs case should continue to attack the drug recognition protocol as unscientific, immaterial and irrelevant and as lacking a proper foundation based on the training and experience of the arresting officer. Additionally, once an officer suspects a motorist is under the influence of drugs, the entire evaluation suffers from a confirmation bias in that the officer is conducting the evaluation to confirm an opinion that the motorist is under the influence of drugs. The Wisconsin Court of Appeals discussed this issue in Haynor and it should be used by defense counsel to undermine the reliability of the opinion of the arresting officer.
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United States Supreme Court to hear oral argument in Sixth Amendment Confrontation Clause case of Michigan v. Bryant

September 27, 2010 | by Michael DelSignore

The United States Supreme Court will hear oral argument in the Sixth Amendment Confrontation Clause case of Michigan v. Bryant on October 5th. In Bryant, a case from Michigan, the victim of a crime was injured from a gunshot wound and gave a description of the shooter to police. The victim died from the gunshot wound. The State admitted into evidence at trial the victim’s statements to the police. The defendant was convicted and appealed to the Michigan Supreme Court which held that the defendant’s right of confrontation was violated. The State appealed to the United States Supreme Court, which granted certiorari on March 1, 2010, 130 S.Ct. 2138 (2010).

The Bryant case raises the issue of whether statements to police by a witness experiencing a medical emergency are nontestimonial when made for the primary purpose of allowing the police to respond to an ongoing emergency when the perpetrator of the crime is still at large. The Court’s resolution of Bryant will rely heavily on how the court interprets its prior decision of Davis v. Washington, 547 U.S. 813 (2006) which defined when a statement is testimonial under the Sixth Amendment.

In Davis, the United States Supreme Court held that statement made by a victim who called 911 to report that she was being subject to domestic violence were nontestimonial. The Court held that the victim’s statements to the 911 operator were nontestimonial because the victim was speaking of events as they were actually happening and the statements were made as the victim faced an ongoing emergency and were made for the purpose of allowing the police to respond to the emergency.

Drunk Driving charges in 79 cases could be dismissed as a result of allegations that California police officer falsified police reports to justify DUI arrests

September 27, 2010 | by Michael DelSignore

A Sacramento police officer, Brandon Mullock, is accused of falsifying information on 79 DUI police reports. In some of these cases, the State has already obtained a conviction. The fabrication of the officer was discovered when a prosecutor noticed that the police dashcam differed substantially from the written police report of the officer.

DUI charges in Massachusetts, and throughout the country, are based primarily on the opinion of the arresting officer. In many Massachusetts DUI arrests, the police officer testifies to subjective factors that the officer claims shows an individual is under the influence. These factors include that the officer claims that the motorist was unsteady getting out of the car, spoke with slurred speech or had difficulty retrieving his or her license. Additionally, when an officer administers a field sobriety test, like the nine step walk and turn, the difference between an officer claiming that the defendant passed or failed is based on small details. Many officers will testify that they are unaware that missing heel to toe is a clue on the test only if there is more than a two inch gap. It is easy for an officer to claim on the report that the defendant failed to touch heel to toe either through not knowing how the test is scored or through embellishing to justify an arrest.

At an OUI trial in Massachusetts, cross examination can demonstrate that an officer overstated, embellished or exaggerated in the police report. The fact that so much of the evidence is opinion based evidence, which can be distorted, fabricated and misinterpreted by the officer demonstrates the importance of hiring an experienced Massachusetts OUI lawyer.

In Massachusetts, a defendant can challenge the basis for the stop at a motion to suppress which would require the officer to testify in court and can challenge the officer’s opinion at trial. These opportunities to confront witnesses granted by the Sixth Amendment to the United States Constitution are the only way that a motorist can challenge the opinion of the arresting officer.

In California, the corrupt police officer was discovered as a result of a prosecutor comparing the dashcam to the written police report. In Massachusetts, police departments vary as to whether they have any dashcam or even booking video. As a Massachusetts criminal defense lawyer, I have argued that a lack of video taped evidence should be held against the Commonwealth at trial and support reasonable doubt. Yet in many cases, there will be no video evidence to contradict the officer; the only way to challenge the officer’s opinion will be through cross examination at trial by a skilled Massachusetts DUI trial attorney.
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Lindsay Lohan case illustrates risks of probation violations after a First Offense Massachusetts OUI plea resulting in a CWOF

September 26, 2010 | by Michael DelSignore

Anyone facing Massachusetts OUI charges or probation for a similar offense can learn something from the case of Lindsay Lohan.

What is often lost in the ongoing saga of Lohan and her trips through jail and alcohol and drug rehabilitation centers is a simple, startling fact: All of her legal problems — which have included four bench warrants and several stints in jails and rehabilitation centers — stem from a conviction for DUI.

Clients are often surprised to learn that probationary conditions can be difficult to comply with and result in jail time if there is a violation. A Massachusetts criminal defense lawyer can assist a client in understanding the requirements of probation and may be able to argue against terms that are likely to trigger probation violations.

Massachusetts probation surrender hearings, unlike in California, do not allow for bail; Even if you receive a CWOF, or continuance without a finding, on a First Offense Massachusetts OUI, a violation of the terms of the probation can result in you being held in jail without bail as a result of a probation violation. Once you receive notice of a violation hearing, a preliminary surrender hearing is held where the judge determines whether there is a basis for the violation and if so whether the judge will exercise his or her discretion and detain the probation violator. On a first violation it would be unusual for a judge to detain an individual; however, it is within the judge’s discretion and will depend on a number of factors, including the severity of the violation, whether the violation is a result of new criminal charges or so called technical violation, like failing to comply with treatment, report to probation or pay money, whether the individual has a record of not appearing for court and the nature and seriousness of the underlying offense in which probation was ordered.

Ordered to jail on Friday for a failed drug test, the Hollywood Actress was set to sit behind bars until Oct. 22, when a hearing is set to determine whether she faces additional jail time for a probation violation. The judge has promised she would spend 30 days in jail for each violation. She was sentenced to 90-days in jail earlier this summer but spent just 14 days because of overcrowding. This time a new judge presiding over her case seemed determined to get the full 30 days by sending her to jail until the hearing.

Lohan managed to get that ruling overturned but was forced to post $300,000 bail. And many court watchers think her freedom is likely to come at the high cost of angering the judge who must rule and issue sentence next month on the probation violation. At that time, the judge will be within his rights to return her to jail.

The appeal of the no-bail decision was granted after a judge said Lohan’s underlying misdemeanor offense entitles her to bail. As the conditions of her release, she was ordered to wear an alcohol monitoring bracelet and stay out of bars.
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Judge denies right to public trial resulting in Massachusetts Appeals Court overturning conviction

August 31, 2010 | by Michael DelSignore

The Massachusetts Court of Appeals vacated a conviction in the case of Commonwealth v. Wolcott when the defendant was denied her right to a public trial as a result of the trial judge closing the courtroom. The Wolcott decision is an important decision as it emphasizes that Massachusetts criminal defense lawyers should object any time a judge closes the courtroom or denies access to a courtroom during any part of a trial. Additionally, the court’s decision invalidates the practice of some judge in Massachusetts criminal trials closing the courtroom during jury selection, limiting access during closing statements and jury instructions.

The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions the accused shall enjoy the right to a public trial. In the Wolcott case, defense counsel sought access for members of the public during jury selection. The judge denied that request stating that as space became available the public could take those seats. The defense counsel moved for a mistrial which was denied by the trial judge. The court found that the trial judge did not announce that when space became available that members of the public could enter the courtroom. The judge refused to allow members of the public into the courtroom and court officers asked members of the public to leave the courtroom without notifying members of the public that as space became available they could reenter the courtroom. Accordingly, the Appeals Court found that the judge closed the courtroom.

The Massachusetts Appeals court reviewed the case of Waller v. Georgia, 467 U.S. 39 (1984), from the United States Supreme Court addressing when a full closure of the courtroom can be justified under the United States Constitution. The Waller Court used a four part analysis:

1. The party seeking to close the court must advance an overriding interest that is likely to be prejudiced.
2. The closure must be no broader than necessary to protect that interest;
3. The trial court must consider reasonable alternatives to closing the proceeding;
4. the court must make adequate findings to support closure of the courtroom.

The United States Supreme Court recently addressed the issue of public trials in the case of Presley v. Georgia, 130 S.Ct. 721 (2010), where the court underscored that the right to a public trial is rooted in both the Sixth Amendment and is also guaranteed by the First Amendment. In Presley, the Court was also faced with a judge that denied the public access during jury selection and found that the judge did not consider whether there were reasonable alternatives to closing the court during jury selection. In applying the Presley case, the Massachusetts Court of Appeals found that the jury verdict had to be set aside based on the failure to provide the defendant a public trial and held that because the violation is a structural error, that the court would not apply harmless error analysis, but would vacate the conviction, providing the defendant with a new trial.
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FIRST COMPLAINT DOCTRINE IN MASSACHUSETTS SEX CRIMES CASES REVISITED IN RECENT APPEALS COURT DECISION

August 22, 2010 | by Michael DelSignore

The Massachusetts Appeals Court revisited the doctrine of the first complaint witness in the recent decision of Commonwealth v. Aviles, decided on August 16, 2010. In Aviles, the defendant appealed his conviction of rape and indecent assault and battery arguing that the trial judge committed error of law in admitting evidence of multiple complaint witnesses. This ruling represents an important decision for criminal defense lawyers, defending sex crimes.

As a Massachusetts criminal defense lawyer, charges of sexual assault generally raise an evidentiary issue known as the first compliant doctrine. Under the first complaint doctrine, defined by the Massachusetts Supreme Judicial Court, in Commonwealth v. King, 445 Mass. 217 (2005), the prosecutor is only permitted to have the first person to whom the victim told of the alleged assault to testify at trial.

The rationale for the doctrine is to refute the notion that silence is a sign of lack of credibility of the victim. In other areas of criminal law, a victim would not be permitted to testify that she told someone else about a crime as the testimony would be inadmissible hearsay. Accordingly, the first complaint doctrine is essentially a special exception to the hearsay rule. The SJC in King limited the evidence to one witness out of concern that permitting numerous complaint witnesses to testify would deprive the defendant of a fair trial and unfairly enhance the credibility of the victim.

Miranda warning and right to remain silent without presence of a Massachusetts criminal defense lawyer

August 14, 2010 | by Michael DelSignore

The U.S. Supreme Court continues to chip away at the Miranda warning, dialing back the landmark protections afforded criminal defendants since the 1960s, the Associated Press reported.

What is important for a defendant to remember is simply this: Never speak to authorities as the suspect in a criminal investigation without the physical presence of a Massachusetts criminal defense lawyer. There is absolutely nothing to be gained form it. You are not going to talk your way out of charges. And, all too frequently, the statements you make are going to be some of the strongest evidence used against you in court.

If you keep that in mind, changes to Miranda won’t impact your rights as the high court continues to water down what has become a defendant’s most basic right over the last four decades.

“It’s death by a thousand cuts,” said Jeffrey Fisher, co-chair of the National Association of Criminal Defense Lawyers. “For the past 20-25 years, as the court has turned more conservative on law and order issues, it has been whittling away at Miranda and doing everything it can to ease the admissibility of confessions that police wriggle out of suspects.”

The original ruling was issued in 1966 and emerged from police questioning of Ernesto Miranda in a rape and kidnapping case in Phoenix. Perhaps the court’s most famous ruling, it requires suspects to be told that they have the right to remain silent, that they have the right to an attorney, and that an attorney will be provided if they cannot afford one.

A trio of decisions issued this year have pruned back some of those rights. The court approved a warning used in parts of Florida that did not notify defendants of their right to an attorney during police questioning. In a separate ruling, the court found that Miranda rights are good for a period of 14 days after a defendant is released from custody. Previously, an assertion of Miranda rights was good forever. Now police can attempt to re-question a suspect after a period of 14 days, even if they asserted their right to remain silent or to have an attorney present. This has increasingly become an issue in cold-case homicide investigations, where law enforcement felt they were hampered by a suspect who asserted his rights decades ago.

Lastly, the court has ruled that a suspect must overtly respond in asserting the “right to remain silent,” just as they must tell police that they wish to have a lawyer present.

At least Justia Sonia Sotomayor found the irony.

“Criminal suspects must now unambiguously invoke their right to remain silent — which counter intuitively requires them to speak,” she said. “At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so.”
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