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Is it Constitutional to Conduct Evidentiary Hearings Over Zoom?
In John Vasquez Dias v. Commonwealth the question before the Massachusetts Supreme Judicial Court was whether a criminal defendant’s constitutional rights are violated by a court choosing to pursue an evidentiary hearing, over the defendant’s objections, over Zoom. Vasquez Diaz was charged with drug trafficking and if convicted, he could face over a decade in prison.
What happened in Vasquez Diaz?
The case of Commonwealth v. Josiah Zachery that is current before the Massachusetts Supreme Judicial Court raises the issue of whether there is a reasonable expectation of privacy in data from the Charlie Card, which is used to ride the commuter rails in Boston. This issue is likely to reoccur as all cards now track location, from CVS cards, to cards to reflect tolls paid in the highway. The Massachusetts SJC heard oral argument on November 6, 2020 and a decision should follow within three to four months.
What happened in the Zachery Case?
In February of 2015, Donte Henley and the defendant were allegedly shoveling snow with the ROCA, a non-profit program for high-risk youth that provides job training. Henley told the defendant to shoot another member of the crew, Lamour, who was a member of a rival gang. The defendant still denies the shooting and contends that there is a lack of forensic evidence against him. The shooter was described as a young, black, male wearing all black with a grey sweater. The defendant matched this description, and he was walking on the side of the road carrying a shovel. The officers determined that he matched the description and decided to check him out. He was searched for weapons, none were found, and they placed him inside the police vehicle.
The Supreme Judicial Court holds that universities have a duty to protect their intoxicated students
The SJC has recently decided in Helfman v. Northeastern University, that colleges have a special duty of care to their students and must protect them even when they are voluntarily intoxicated.
What happened in Helfman?
First Circuit finds no right to cross-exam witness in sexual misconduct disciplinary hearing. On any given day, when schools are in session, university students can end up wandering around as they wonder what to do. Groups of friends and acquaintances meet up at a local hangout and run into strangers who will become friends. Sometimes they consume alcohol, and sometimes they don’t. Sometimes they flirt, and sometimes they don’t.
Students who attend Boston College may be vaguely aware of the Student Conduct Handbook. They may know that there are consequences to actions, and there are forums to disprove an accusation. What they may not be aware of is that the Student Conduct Handbook creates a contract between the student and Boston College and that that contract rules disciplinary matters regarding allegations of sexual misconduct.
In November 2018, a female student (Roe) accused a male student (Doe) of sexual misconduct. Boston College investigated the incident by interviewing both students separately and on multiple occasions as well as interviewing witnesses, finally issuing a 60 plus page report. As a result of a finding of sexual misconduct, Doe was suspended for one year (2019-2020).
The Massachusetts Supreme Judicial Court reversed an involuntary manslaughter conviction in the case of Commonwealth v. Carrillo based on the defendant allegedly causing the victim to overdose on heroin. Massachusetts’s highest court, the Supreme Judicial Court (“SJC”), vacatedUMass Amherst grad student Jesse Carrillo’s involuntary manslaughter conviction, who, in October 2013, Jesse Carrillo was charged in the heroin overdose death of fellow UMass Amherst student, Eric Sinacori.
In May 2017, a Hampshire Superior Court jury delivered its guilty verdict against Carrillo on counts of distributing heroin and involuntary manslaughter, nearly four years after Sinacori died at his off-campus apartment. In October 2013, Carrillo was getting his master’s degree at UMass Amherst when he purchased heroin from a New York dealer for himself and Sinacori. Two nights later, Carrillo drove to the Bronx again and purchased heroin from the same dealer for himself and Sinacori, who was found dead the next day of an overdose.
In June 2017, at Carrillo’s sentencing hearing, Hampshire Superior Court Judge John A. Agostini called the case “very difficult” before handing down a jail sentence of 2½ years and five years on probation. Judge Agostini ordered Carrillo to spend one year behind bars, with the rest of the sentence suspended.
The Massachusetts Supreme Judicial Court ruled in the case of Commonwealth v. Hardy that failure to strap a child in properly to a car seat appropriate to the child’s age did not constitute involuntary manslaughter or reckless endangerment of a child, reversing the defendant’s conviction on those counts. One of the children that died in the accident was in the middle seat with an adult seat belt on, but not seat belted in as he should have under the law for his age.
What type of proof is necessary to convict someone of involuntary manslaughter?
The SJC emphasized that the crime of involuntary manslaughter requires the following elements of proof:
The Massachusetts Supreme Judicial Court will be asked to decide whether clerk magistrate hearings where the clerk finds probable cause but declines to issue the complaint should be open to the public. As a criminal defense lawyer that has handled many clerk magistrate hearings, clerks do sometimes find probable cause but do not issue the complaint and essentially keep the case open at the clerk level. This typically happens in very minor cases, like leaving the scene of property damage or negligent operation of a motor vehicle. In most cases, the person has no record so the clerk’s resolution of the case approximates what would have happened in court. In all most all of these situations, the police department is in agreement with the resolution of the case in this manner. The clerk magistrate hearing helps the court reduce the backlog of cases in the court and allows for a practical resolution that does not result in the defendant receiving a criminal record for a minor offense.
Who are the Judicial Clerk-Magistrates?
Judicial Clerk-Magistrates have their authority under statute G.L. c. 218, § 35A, case law, and standards set by the Massachusetts Judiciary. They act as a filter between the police and the prosecutor and were intended as a way to weed out cases not likely to result in a conviction or cases that were relatively minor in nature where a resolution could be better sought outside the court system. Currently, cases declined for prosecution are sealed and later destroyed.
The Massachusetts Supreme Judicial Court affirmed the dismissal of an OUI charge by a Superior Court judge after the officer did not issue a citation until 9 days after and the defendant did not receive notice until five or six months later.
The defendant in Commonwealth v. O’Leary was indicted on an OUI subsequent offense, meaning that it was greater than a Fourth offense. His case involved a common situation that Massachusetts OUI Lawyers encounter. He got into a one car accident and was taken to the hospital. When the officer got to the hospital it appeared as though O’leary was intoxicated. He admitted to a couple of beers, had bloodshot and glassy eyes as well as slurred speech.
The officer informed the defendant that he would receive a summons in the mails for OUI. The officer had to seek approval of the report and did not issue the summons until nine days later. This was an important fact that came out at the motion hearing as the motion judge found no good reason for the nine day delay.
In the case of Commonwealth v. Alphonse, the Massachusetts Court of Appeals awarded a new trial based on the improper argument of the prosecutor. One of the more common grounds to appeal a criminal conviction is based on improper arguments during closing.
In this case, the prosecutor argued that the defendant had the opportunity to tailor his testimony because he was present during the testimony of all the witnesses and not sequestered like other witnesses. This argument was improper because a defendant is Constitutionally required to be present during all testimony and must be present to be afforded the right to confront and cross examine witnesses.
In this case, the Judge cautioned the prosecutor that the argument was improper and indicated to the jury his displeasure regarding that type of argument. Additionally, the judge did grant a directed verdict regarding one of the counts of the criminal complaint.
Massachusetts Criminal Defense Lawyer Blog