The defense lawyers in the Karen Read case are looking for third party records to prove that Ms. Read is being framed for murder.  The Commonwealth has refused to produce those records.  In the interest of open disclosure, the prosecution should provide the records.

What is Rule 17 in Massachusetts and why is it a bar for the defense to gather evidence?

The trial of Karen Read involves a bold defense that the police got the investigation wrong, are covering up for their own officers and tried to pin a murder on Ms. Read that she did not commit.  The defense has asked for cell phone records to prove their theory of the case and to establish the defense that a cover up is going on to hide the true manner in which Officer John O’Keefe was killed. 

Last summer, during the height of the Black Lives Matter movement, James Blake, a Black man was shot seven times in the back by Kenosha, Wisconsin police officer Rusten Shekey. Blake is now paralyzed. The shooting occurred in front of Blake’s three children. The officer who caused Blake’s horrific injuries will not press charges. Protests erupted in Kenosha and there was outrage nationwide.

Along with the protests came looting and discretion and property. Kyle Rittenhouse, a 17-year-old from Antioch, Illinois, traveled to Kenosha brandishing an AR-15. He claimed he was present at the protests to protect people and property. Rittenhouse was pursued by a group of protestors. Joseph Rosenbaum, who was unarmed, launched at Rittenhouse in an attempt to grab his rifle. Rittenhouse shot him four times. After shooting, he was then chased by a crowd of at least a dozen people, he tripped and fell after being hit in the head. Maurice Freeland then attempted to jump-kick Rittenhouse and missed both shots Rittenhouse fired. While Rittenhouse was still on the ground, Anthony Huber struck him on the shoulder with a skateboard and attempted to take his rifle. Rittenhouse shot him in the chest, killing him. Finally, Gaige Grosskretuz approached Rittenhouse while pointing a handgun at him, Rittenhouse shot him again in the right arm.

Rittenhouse was charged with two counts of homicide, one count of attempted homicide, two counts of reckless endangerment, one count of unlawful possession of a firearm, and one count of curfew violation.

Is Google Map evidence admissible in a jury trial?  An appeals court in Florida recently said “not necessarily” when it reviewed this question in City of Miami v. Kho.  

Juanita Kho sued the City of Miami for negligence after a trip-and-fall accident on a Miami sidewalk in 2010.  The sidewalk Juanita tripped on had an asphalt patch that was one-and-a quarter inches lower than the adjoining concrete slab.  Juanita alleged that is what caused her to fall, and that the difference in elevation was a “dangerous and defective condition.”

In order to win her case, Juanita was required to prove that Miami had either actual or constructive knowledge of the sidewalk’s condition at trial.  Unable to prove that Miami had actual knowledge of the condition of the sidewalk, she sought to prove constructive knowledge using a Google Maps photograph of the sidewalk dated November 2007 to show that the “dangerous and defective condition” existed then and that Miami should have known about it when she tripped in 2010.

Robert Kraft’s lawyer filed a motion to suppress challenging how the police obtained the video evidence against Kraft and the basis of the traffic stop where Kraft’s identity was learned.  In Kraft’s case, the motion to suppress is essentially the entire case assuming the video depicts what the police claim it shows.  This is true in many types of criminal cases like, gun crimes, drug offenses and crimes like possession of child pornography where the legal issues in the cases determine whether the case is dismissed or resolved by plea.

In this Blog, I will look at the motion to suppress that has been field.  The motion challenges the basis of the warrant.

Kraft’s best defense is to challenge the Warrant authorizing the search and hidden cameras.

How were Jupiter PD officers able to obtain video footage of the act?  Hidden cameras were used to catch Kraft and others on video via delayed-notice search warrants.  According to CNBC, these “sneak-and-peak” warrants allowed the Jupiter PD to secretly install cameras inside of a private business to monitor illegal activity. Delayed-notice warrants have been used in the United States since the 1970’s, and were formalized under §213 of The USA Patriot Act.  In a typical warrant situation, law enforcement will give immediate notice that the warrant is being executed.  A delayed-notice warrant allows law enforcement, with a judge’s explicit permission, the ability to execute the warrant without notifying the subject of the search for a limited period of time.  Most importantly, the underlying reason behind granting a delayed-notice warrant, thus waiving the immediate notification requirement, is to prevent the following: danger to life or safety of an individual, flight from prosecution, destruction of or tampering with evidence, intimidation of witnesses, or other serious jeopardy to an investigation.

Jupiter PD and prosecutors cite that the case is and was a human-trafficking investigation, however none of the affidavits that have been released describe trafficking occurring at the Orchids of Asia Day Spa.  The Motion to Suppress argues that the police made misrepresentation in order to obtain the warrant about what was occurring in the Spa.

An additional issue is the basis to stop Kraft after he was leaving the spa.  The prosecution would have to argue that they were monitoring the camera and saw what occurred prior to the stop.  If the camera was being monitored, the prosecution would argue that they had probable cause based on the video from the camera to make a motor vehicle stop based on reasonable suspicion that Kraft committed criminal activity.  If the police were not contemporaneously monitoring the camera, but stopping everyone that left to obtain their names, that would have violated the 4th Amendment as there would not have been reasonable suspicion at the time of the stop.

DOES THE MOTION TO SUPPRESS MEAN THE CASE WILL NOT BE RESOLVED.

On March 18, 2019 the Palm Beach County State Attorney’s Office offered Kraft, along with the 24 other men who were charged, a diversion plea.  Pretrial Diversion Programs with no formal admission required but a requirement that Kraft admit that he would have been found guilty at trial.  Typically, pretrial diversion programs do not require an admission of guilt.  In this case, given Kraft has no record the State should be offering a diversion without an admission or an outright dismissal of the case.  A prosecutor has a duty to ensure that police comply with the law.  The prosecutor should have serious issues with the police conduct in the case and do the right things and offer a dismissal of the case.  As a practical matter, the public embarrassment is a more stringent penalty than any court imposed penalty.

The NFL Potential Repercussions

On top of his potential criminal liability, everyone in the NFL, including owners, are subject to the NFL’s personal conduct policy.  According to ESPN, the policy covers “conduct by anyone in the league that is illegal, violent, dangerous, or irresponsible, puts innocent victims at risk, damages the reputation of others in the game, and undercuts public respect and support for the NFL,” per its text. Owners and club or league management are held to higher standards under the policy and are “subject to more significant discipline when violations … occur.” League owners have previously faced large fines and suspensions for admissions of guilt relating to substance related charges, and the Patriots themselves have suffered fines, loss of draft picks, and suspensions for spying and “Deflategate.”

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The Massachusetts Supreme Judicial Court affirmed Michelle Carter’s conviction for involuntary manslaughter.  The SJC began its decision by addressing what it decided in Michelle Carter’s first appeal to the SJC referred to as Carter I.  In Carter I, the SJC held that verbal conduct alone could overcome a person’s will and rise to wanton and reckless conduct to support a conviction for involuntary manslaughter.

The SJC held that the evidence presented to the trial judge was sufficient to support a conviction.  The SJC essentially adopted the reasoning of the trial judge in the case.

Key Evidence Supporting the conviction 

In a Massachusetts Criminal Trial, of any type, whether murder or an OUI, the verdict must be unanimous, meaning that all six jurors have to agree whether the verdict is guilty or not guilty.  If jurors cannot reach a unanimous verdict, it is called a hung jury and the Commonwealth is permitted to retry the case.  The first Bill Cosby trial ended in a hung jury. In every criminal trial, a jury should be instructed on this principal of law.  The jury misunderstood this; possibly the instruction should be simplified telling the jury directly that a conviction cannot rest on a vote of five to one or four to two.

In Commonwealth v. Dibenedetto, a trial from the Worcester District Court the jury was under the mistaken belief that only a majority was required to return a verdict.  When the judge learned of this after thanking the jurors following the verdict, he instructed them that the verdict must be unanimous.  After his reinstruction following the first verdict, the jury then again returned a guilty verdict.  

The Appeals Court held that after the verdict is recorded the verdict is final. After the verdict is rendered, the judge is precluded from inquiring into the propriety of the jurors deliberation or decision making. The Appeals Court stated that the prohibition against impeachment of a verdict is not absolute.  Juror testimony, the Court stated, can be used to show the following:  unauthorized site visits, improper communication between parties, or consideration of facts not in evidence, as well as racial bias. 

  On January 7th, Actor Kevin Spacey will be arraigned on Indecent Assault and Battery charges out of Nantucket District Court.  Spacey’s lawyers requests that his presence be waived for the arraignment due to publicity from the case.  Spacey is charged with sexual assault of a teenager in a Nantucket bar.  

Lawyers argued that Spacey’s appearance would increase the publicity from he case and potentially contaminated the jury pool.  

Definition of an Arraignment in Massachusetts Felony Charge

The Massachusetts Supreme Judicial Court heard oral arguments in the case of Commonwealth v. Michelle Carter yesterday.  In this Blog, I have outlined some of the key issues that the SJC addressed during the oral argument.

Was there sufficient evidence to convict Carter of involuntary manslaughter?  

The defense lawyer argued that the key pieces of evidence is the defendant’s text from two months after where she told a friend that she told him to get back into the truck.  The defense contended that that text message was part of very long and rambling texts so that to use a text as the basis to find her guilty was not supported by sufficient evidence.