The case of Aaron Hernandez reveals some interesting aspects of Massachusetts’s court procedures. For example, many people wonder why Hernandez is being arraigned again in superior court. The reason lies in the fact that there are typically two arraignments in any superior court charge. Hernandez was initially arraigned in the Attleboro district court, as all cases most cases start in district court. As an Attleboro criminal defense lawyer, Hernandez’s case proceed through the district court in the normal fashion, with typically one or more continuance of the probable cause hearing which occurred in this case. On September 6th, Hernandez will be arraigned in the Fall River Superior Court where the case will remain until a verdict or plea on the charges or on amended charges.

As there was enough probable cause to issue a criminal complaint against him and the charges consisted of allegations that could not remain in district court, an arraignment in superior court is the next step. This is because the district court simply has no final jurisdiction over a charge of first degree murder.

• What jurisdiction does the district court have?

The George Zimmerman case, which was one of the most publicized court decisions in the last decade, has been met with great opposition and protest. This protest has been calling for a potential change in the self-defense laws in Florida and possibly re-trying the defendant in federal court. Furthermore, some have questioned the beyond a reasonable standard that must be met in order to convict a defendant. However, these ideas seem to go against the very ideas of the judicial system and the protection that is granted to those convicted of a crime.

One of the issues in this case originally was the stand your ground law that is in Florida. The stand your ground law states that one who is defending themselves does not have to retreat before using deadly force. In most states, one will have to attempt to escape the confrontation before resorting to deadly force. Many have been calling for a change to this law suggesting that it can lead to deadly confrontations when there is an easy means for escape. However, this law although talked about a lot in the early going, this law did not play much into this decision. It seems unlikely that Zimmerman would have been unable to flee from the altercation as all evidence tends to lead to the conclusion he was pinned to the ground. Furthermore, changing of this law would lead to more arrests as people who were in fear of their life and used force could be arrested for not first trying to escape.

Others are calling for Zimmerman to be charged with federal crimes in connection with the killing of Trayvon Martin. In criminal cases, the double jeopardy rule protects defendants from being on trial for the same actions multiple times. This is the reason why the prosecution cannot appeal the decision to a higher court. However, the Supreme Court ruled in 1959 in the case Bartkus v. Illinois that prosecution in state followed by prosecution in federal court does not violate double jeopardy. It traditionally is not used as people feel this gives the government too much power. The double jeopardy law protects defendants and this should not be ignored just because of the emotion of this case.

In one of the most publicized criminal case in recent history, George Zimmerman who is being tried for murder in the death of Trayvon Martin has drawn an all-female jury. As a Massachusetts criminal defense attorney, the jury selection process is a very important step in setting up a criminal defense. Getting jurors who are biased or against the defendant in some way can be detrimental to a case. Getting an all-female jury raises some interesting questions as to whether or not this can have an effect on the outcome of the case.

Having an all women jury or even one female juror for that matter was not always an option. It was not until 1975 and the decision in the Supreme Court case of Taylor v. Louisiana that stated women had to be involved in the jury process in order for it to be considered a jury of peers as required by the Constitution. Before that, women were not required to be a part of the jury process and it was only optional that women served. Since women have become part of juries, it can finally be considered that a defendant is on trial by a jury of his or her peers.

It still remains to be seen if this will affect the trial in any way either in favor for the defense of the prosecution. Many have argued that it would be impossible for a man to get a fair trial with an all women jury and this will be a true to see if it can be done.

The United States Constitution guarantees every criminal defendant a right to a fair and speedy trial. One way a trial is deemed fair is to have an impartial jury decide the fate of the case. To ensure a jury is impartial, both the defense and the prosecution will select the jury through the process of voir dire. As a Massachusetts defense attorney, it is often this process that can win or lose a case as it is imperative to get jurors who will not be biased against your client.

The process of voir dire usually consists of the jurors being asked questions about their age, employment and life experience. This is in hopes of uncovering any bias the juror may have and to find out whether he or she will be an impartial juror. If any deficiencies in the juror are apparent that lead the judge to believe the juror could not be impartial, the juror will be stricken for cause and not allowed to hear the trial. To further ensure a fair trial, each side is given five peremptory challenges which allows the lawyers to strike a juror for no reason and have them not sit for trial.

However, the Equal Protection Clause of the 14th amendment does not allow a lawyer to use one of these peremptory challenges based solely on race. This rule was decided in Batson v. Kentucky. The Supreme Court in that case stated once a lawyer displays a pattern of discrimination through his or her peremptory challenges, the other side can make an objection. This has become known as the Batson challenge. Once this objection is raised, the attorney will have to state a legitimate reason why they decided to strike the juror other than their race.

When a suspect is arrested, one of the main concerns for Massachusetts defense attorney is the power of the prosecutor who will be the person who decides what to charge a defendant with. This discretion of what to charge a suspect with gives prosecutors tremendous power in the legal system, power that many people feel has to be limited. Nowhere was this power more evident than in the case of Aaron Swartz. Swartz was arrested for downloading millions of academic articles and placing them online. The federal government stepped in to “send a message” and charged Swartz with several felonies including federal fraud and computer felonies. Swartz was faced with 35 years in prison, but the prosecutor offered a plea bargain of six months in prison, which Swartz rejected. On January 11, Swartz took his own life causing outrage over the prosecutor’s actions.

It is common for prosecutors to charge people with multiple felonies in hopes of getting a plea bargain accomplished. With Swartz, the prosecutor hoped that Swartz would take the plea bargain for six months when Swartz saw that losing at trial could potentially put him in prison for 35 years. Prosecutor’s make their name off of winning cases and charging a suspect with felonies and offering a plea bargain to a less sever crime is often an easy way to scare a defendant into agreeing.

A main reason that a prosecutor has so much power is the procedure for charging a defendant with a crime. In the Swartz case, that involved a federal prosecutor. To charge Swartz with a federal crime, the prosecutor needed to secure an indictment from a grand jury. The indictment proceeding consists of only the prosecuting attorney delivering evidence to show there is probable cause to charge a suspect with a crime. The grand jury consists of 16-23 members and if at least 12 find probable cause, and indictment is returned and the charges against the suspect are formally brought.

One question that now frequently arises for Massachusetts criminal defense lawyers is:

A recent case gave an answer.

As a Boston Criminal defense attorney, one of the most important factors I consider when deciding a defense for a criminal charge is whether the obtained evidence was found during a warrantless search. Evidence obtained during an unwarranted search is not usually admissible in a criminal trial. However, automobiles are a major exception to the search and seizure clause of the Fourth Amendment, so it is important to understand the Constitutional defense available in car searches.

Due to the automobile exception to the search and seizure clause, it is common for police officers to purposely find a justification to use as a pretext for searching an automobile without a warrant. The case of United States v. Scott decided by the 9th Circuit brought up issues regarding the automobile exception to the warrant requirement under the search and seizure clause of the Fourth Amendment. Although this is an out of state case, it raises important issues that could come into play in a Massachusetts firearm or drug case.

After discovering evidence of an illegal drug operation in a Nevada home, police arrived at the home and arrested the suspect at the scene with charges of controlled substance and firearm possession. Upon entering the home, officers claimed that not only could they smell marijuana on the premises, but they also saw the defendant stuff multiple stacks of cash into plastic bags in an effort to conceal them.

As a Massachusetts criminal attorney, one of the most common questions asked is what does double jeopardy mean under the Constitution. When people first hear the phrase “double jeopardy,” the first thing that comes to mind is the movie featuring Tommy Lee Jones and Ashley Judd. In true Hollywood fashion, the highly entertaining movie substitutes criminal and constitutional law with thrilling scenes where Ashley Judd searches for the truth about her supposedly dead husband. Still, Hollywood falls short in explaining Double Jeopardy in its true legal form.

Double jeopardy is an important concept for any client to understand – particularly when your case mirrors the facts in Cruz vs. Commonwealth, decided on March 15, 2012. Cruz was indicted for trafficking cocaine in June 2007. In October of that same year, his defense counsel filed a request for discovery. Nearly three years later, on the second day of trial, his’ Massachusetts criminal attorney discovered that the Commonwealth had failed to supply the defense attorney with at least 500 pages of information obtained during the police investigation – essentially, violating the discovery order.

In such a situation, a judge can either grant a Continuance (allowing the defense attorney to review the documents), grant a Motion to Dismiss, or declare a Mistrial. Given the extensive nature of the documents withheld, a continuance did not appear to be feasible. The defendant’s criminal attorney moved for a dismissal of the case. He also objected to a mistrial because a mistrial would only prolong the already financial and emotional burden on the defendant.

The lawyer representing Cruz argued that because this case had already spent three years in discovery and motion practice, the discovery order violation was extreme. In addition, the documents were highly relevant and could have assisted the defendant’s case. Although the judge found that the Commonwealth violated the discovery order, the violation was not intentional and therefore a mistrial was declared.

The double jeopardy clause comes from the Fifth Amendment of the Constitution and is also found in Article 12 of the Massachusetts Declaration of Rights. It states that no person may be twice placed in jeopardy for the same criminal offense. In
Massachusetts, once a defendant is placed in jeopardy, a judge can declare a mistrial if it is manifestly necessary. The Commonwealth has the burden to prove that manifest necessity exists. For a judge to declare a mistrial over the defendant’s objection, the judge must consider the defendant’s right to a trial. In addition, the court must give the objecting defense attorney the opportunity to be heard and the judge must consider any alternatives to a mistrial.

The high profile perjury prosecution of Roger Clemens raised the issue of Double jeopardy recently. The trial of Roger Clemens raised the issue of double jeopardy where a mistrial was caused by conducted of the prosecutor in violating a pretrial ruling of the judge. The judge has ruled that a second trial would not violate the Double Jeopardy Clause and the retrial is scheduled to resume; should Clemens be convicted, the Double Jeopardy issue would be raised on appeal.
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The Massachusetts Supreme Judicial Court in the case of Commonwealth v. Mark Tremblay addressed whether the defendant’s statement was voluntary when the police agrees that it would be off of the record. The issue before the court was not whether Miranda warning had been given, as the Massachusetts criminal lawyer conceded that the defendant was not in custody triggering the requirements of Miranda. Click here to read a copy of the SJC decision in Tremblay.

A criminal defense lawyer can typically challenge an incriminating statement on two separate but related grounds. First, whether an incriminating statement was obtained in violation of Miranda; or second, whether the police violated a defendant’s privilege against self-incrimination and infringed upon due process of law by coercing a statement from a defendant.

The SJC held that the test for whether a confession is voluntary is to view it in light of the totality of circumstances surrounding the making of the statement. The Court will consider whether the will of the defendant was overborne to the extent that the defendant’s statement was not the result of a free and voluntary act. The SJC stressed that relevant factors include, but are not limited to, promises or other inducements, conduct of the defendant, age, education, intelligence and emotional stability, experience with the criminal justice system, physical and mental condition. Further, the SJC will consider who initiates the discussion of a deal for leniency, whether the defendant or the police and the detail of the interrogation including the recitation of Miranda warnings.

The Massachusetts Supreme Judicial Court in Tremblay emphasized that police should use caution in using deception or trickery during an interrogation. The Court stressed that trickery does not compel suppress of the statements but is one factor for the court to consider. Further, the SJC noted that suggestions by the police that the defendant would benefit from the confession may raise issues of whether the confession is voluntary.

In viewing the Tremblay case, the Court said that the officer’s actions did not fall neatly into either category of trickery or making assurances that the defendant would benefit from confessing.

Key to the SJC determination that the officer did not use trickery was the fact that he agreed to the defendant suggestion that the comments would be off of the record and not included in the written portion of the statement, but never made any promises of protection or leniency. The SJC found no evidence of coercion of the officer as a result of his agreeing that statements be off of the record and held that the statements were properly admitted at trial.

In a dissenting opinion, two members of the Massachusetts Supreme Judicial Court, Justice Gants and Ireland disagreed with the majority of the Court and would have suppressed the statements and wrote separately in a dissenting opinion discussing their reasoning.

Justice Gants wrote that in Commonwealth v. DiGiambattista, the SJC recognized that police trickery during an interrogation may cast doubt on the voluntariness of a suspect’s statement. The DiGiambattista decision held that a Massachusetts criminal lawyer may request an instruction that a jury can view a confession that was not recorded on video tape with caution if the police do not electronically preserve the interrogation.

Justice Gants outlined three forms of police trickery that may undermine the voluntariness of a confession: false promises of leniency in return for a suspects statement, false representation regarding the right to represent himself during trial, and false promises that the statement will not be used against a suspect. Justice Gants notes that the majority indicated that an assurance that a statement will be off of the record should be avoided, but failed to find the statement involuntary despite case law from other jurisdictions where suppression was deemed appropriate.
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