Massachusetts Criminal Defense Lawyer Blog

Are Searches of computers and cell phones are the Border without a warrant permissible under the Fourth Amendment

October 5, 2020 | by Michael DelSignore

The United States Supreme Court may review a case called United States v. Williams that deal with the issue of what is the scope of a permissible search at the border: Can the search include personal computers and cell phones under the Fourth Amendment?

The Supreme Court has the opportunity to review a case concerning the Fourth Amendment rights travelers have when entering the country with their personal electronics. The circuits are split multiple ways regarding this issue of warrantless searches of personal electronics at the border. Some courts allow the search of electronic devices at the border under any circumstances, while other courts hold these searches to a higher standard. In the case of United States v. Williams, the Tenth Circuit declined to rule on whether searches of personal electronic devices at the border must be subject to reasonable suspicion. United States v. Williams, 942 F.3d 1187, 1190 (10th Cir. 2019). But reasonable suspicion is sufficient to justify a warrantless border search of personal electronic devices, and that is the point at issue in this case.

What happened in the Williams Case?

Massachusetts SJC decision will promote the goal of all voices being heard in the jury room by lowering the bar to show Juror was excluded based on Race

October 1, 2020 | by Michael DelSignore

The Massachusetts Supreme Judicial Court made it easier for defendant to show race improperly played a role in prosecutors using a peremptory challenge on a juror by eliminating the requirement that a defendant show a pattern of conduct in excluding minority jurors. Prosecutors no longer get a free opportunity to strike one juror based on race because other were kept on the jury. This is an important victory preserving the right to a fair trial and making sure all voices are heard in the jury room. The Massachusetts Supreme Judicial Court changed the standard for challenging peremptory strikes in Massachusetts state court. The Supreme Judicial Court has adopted the standard of Batson v. Kentucky, “retiring” the language of Commonwealth v. Soares.

The defendant in Commonwealth v. Sanchez challenged the prosecution’s peremptory strike in which a nineteen year old African American was removed from the jury. The trial judge upheld the peremptory strike. The defendant appealed. After losing his state appeal, the defendant applied for federal habeas corpus relief. There, the judge noted that the Massachusetts standard for challenging peremptory strikes in Soares was harder for defendants to meet than Batson. Still, defendant was denied habeas relief. Defendant then moved for a new trial in state court, which was granted. The Commonwealth appealed.

A Pattern of Discrimination is no longer required when challenging Race Based use of Peremptory Challenges

Selecting an Impartial Jury in a Massachusetts Criminal Trial: SJC reviews case of Commonwealth v. Rosa-Roman

October 1, 2020 | by Michael DelSignore

Massachusetts Criminal Defense Lawyer must continue to exercise preemptory challenges when prosecutors attempt to exclude minority jurors. A criminal defense is entitled a a jury that represents a cross-section of the community. Cultural stereotypes are reinforced when prosecutors are allowed to rely on them to exclude jurors based on race. The case of Commonwealth v. Dennis Rosa-Roman raises these issues.

What happened in the Rosa-Roman Case?

On August 26, 2011, Amanda Plasse was found stabbed to death in her Chicopee apartment. Dennis Rosa-Roman was arrested for this murder, and found guilty. Although he appealed, his conviction was affirmed by the Supreme Judicial Court. In his appeal, Rosa-Roman alleged irregularities in the jury selection process. Specifically, he alleged that a Hispanic female and an African-American female were improperly excluded by the prosecution by use of peremptory strikes (strikes not for cause) due to their race. When such an objection is raised, the trial court must conduct an inquiry as to whether there are adequate, genuine group-neutral reasons for the peremptory strike. The trial court did so; as will be seen below, the defense disagreed with the trial court’s rulings.

Massachusetts SJC finds race and age relevant to Seizure analysis under the Constitution in Commonwealth v. Tykorie Evelyn decision

September 19, 2020 | by Michael DelSignore

On the same day as the Massachusetts Supreme Judicial Court decided, Commonwealth v. Long, lowering the burden for a defendant to prove a stop was the result of racial profiling, the SJC also released a decision involving race and police interactions with a young black male in the context of a seizure rather than a motor vehicle stop. The case of Commonwealth v. Tykorie Evelyn involves a street encounter between the police and a young black male who the police suspected was involved in a shooting. While the SJC ruled against the defendant Evelyn, the SJC indicated that past and current social realties regarding how young black males perceive the police should factor into how Court analysis Constitutional questions such as whether someone has been seized by the police.

The Evelyn case involved the following circumstances:

What Happen in the case of Tykorie Evelyn?

Massachusetts SJC decision may reduce racial profiling in traffic stops as it lowers the burden to show racial motivation for the stop

September 17, 2020 | by Michael DelSignore

The Massachusetts Supreme Court decided the case of Commonwealth v. Edward Long today. The decision lowers the burden to prove racial profiling in traffic stops. The decision is very important because it will help eliminate racial profiling in traffic stops and move our country toward greater racial equality.

The case of Edward Long involved a young black male being stopped for not having a proper inspection sticker on the car he was in. Once he was stopped for the traffic infraction, officers discovered he had a warrant, searched the car and found a hand gun. Long moved to suppress the evidence of the hand gun, arguing that he was stopped based on his race in violation of the Equal Protection Clause. During the Motion to Suppress hearing, he presented a compelling statistical case of racial disparity in traffic stops.

The motion judge denied the motion despite the overwhelming statistical evidence he presented. The Massachusetts SJC found that the standard previously used by the Court to prove racial bias in traffic stops imposed too high a burden on defendants, making Equal Protection of the law an illusory concept.

1st Amendment Free Speech Protection to Revenge Porn laws

September 3, 2020 | by Michael DelSignore

As a Massachusetts criminal defense lawyer, one of the more interesting defenses to a criminal charge is a First Amendment attack on whether the law is Constitutional. Recently, there have made some First Amendment challenges to the Involuntary Manslaughter Statute in Massachusetts in the Michelle Carter case. The Massachusetts Supreme Court ultimately rejected that claim finding that the involuntary manslaughter statute punished conduct and was not punishing someone for their viewpoint, but was permitted regulation of conduct that indirectly impacts speech. Revenge Porn Laws have been challenged on First Amendment grounds. The United States Supreme Court may hear a case from Illinois that deal with the criminalizing so called Revenge Porn and how it can comport with the requirements of Free Speech under the First Amendment. The case is Bethany Austin v. State of Illinois, and the filing can be found on the Scotus Blog.

How did the State of Illinois try to criminalize Revenge Porn?

Illinois passed, like many other states a Revenge Porn Law. The statute precludes online dissemination via the internet of photographic, film, videotape, digital recordings or depictions or portrays of another person engaged in sex act or with their intimate parts exposed. The Act covers any circumstance where a reasonable person would know that the person wanted the images to stay private and published them without consent.

1st Amendment case involving free speech and social media before the United States Supreme Court

August 31, 2020 | by Michael DelSignore

The United States Supreme Court may hear a case that involves the intersection of the 1st Amendment right to free speech with the right to post on social media. The case is Hunt v. Board of Regents of the University of New Mexico which may set a legal standard for students’ freedom of speech when they use social media — an issue that has frequently been litigated in recent years with no clear legal standard. The issue in this case is whether a student’s outrageous and inappropriate Facebook post was a content based restriction on freedom of speech that is prohibited by the First Amendment regardless of how offensive the message.

What did Paul Hunt say on Facebook to incur punishment by the University?

Paul Hunt was a 24-year-old medical school student at the University of New Mexico School of Medicine in 2012. He stated that Democrats were “[d]isgusting, immoral, and horrific,” and “sick, disgusting people.” He said Democrats were “WORSE than the Germans during WW2,” Hunt posted a comment on his personal Facebook news feed stating Democrats view on abortion were “disgusting, immoral, and horrific.” He said Democrats were “WORSE than the Germans during WW2,” The comment was reported to administrators at the medical college, who told Hunt he was in violation of the schools “Respectful Campus Policy,” which made it a punishable disciplinary offense to engage in “untrue allegations, unduly inflammatory statements or unduly personal attacks.”

Does the Fourth Amendment prevent police from looking into your house from your property?

August 24, 2020 | by Michael DelSignore

Is your “semiprivate” area in your home’s curtilage protected from prying eyes?

The Fourth Amendment protects all Americans from unreasonable searches and seizures. Courts define what that means everyday in terms of how far Fourth Amendment protections are extended. One case that raises an interesting issue is Cyde S. Bovat v. State of Vermont. This case may be heard by the United States Supreme Court as the defendant has filed a writ of certiorari.

The Question presented in Clyde S. Bovat v. State of Vermont was whether a police officer can access “semiprivate” areas within a home’s curtilage to conduct an investigation without a warrant.What happened in Clyde?

6th Amendment right of Confrontation and Mental health records in Sexual Assault cases

July 24, 2020 | by Michael DelSignore

Supreme Court has its eye on mental health record privilege

A Colorado case involving a dispute over murder versus suicide begs the question: are mental health records absolutely subject to psychologist-patient privilege, or is there a set of circumstances where they can be revealed to the accused to aid in defense? The Supreme Court is awaiting briefing in Perez v. Colorado, 19-1357.

What is psychologist-patient privilege?

Immigration impact of Child endangerment statute subject of conflicting interpretation among Courts

July 4, 2020 | by Michael DelSignore

In February, the United States Supreme Court was asked to consider whether a misdemeanor child endangerment conviction may be grounds for removal of a lawful resident immigrant under the Immigration and Nationality Act. The Court recently denied certiorari, allowing the petitioner’s removal to proceed. This decision effectively endorses an expansive interpretation of the scope of offenses against children that can result in deportation.

Gerard Matthews has held lawful permanent resident status in the United States since 1989. Almost twenty years ago, the State of New York charged Matthews with child endangerment for committing sexual acts in front of a minor on two occasions. Matthews pled guilty to both counts. Consequently, in 2011, the Department of Homeland Security initiated removal proceedings under 8 U.S.C. § 1227(a)(2)(E)(i), which provides that “[a]ny alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable.” The INA does not define the crimes of child abuse, neglect, or abandonment, although it does define domestic violence. Under New York’s child-endangerment statute, a person commits child endangerments when “[h]e or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child….”

An immigration judge concluded that Matthews was removable and that his criminal history made him undeserving of discretionary relief. The Board of Immigration Appeals and the Court of Appeals for the Second Circuit affirmed. Matthews v. Barr, 927 F.3d 606 (2nd Cir. 2019). In particular, the Second Circuit deferred to an earlier interpretation by the BIA holding that the INA provision encompasses incidents of child endangerment where there is a sufficiently high risk of harm to the child. This definition includes mental and emotional harm as well as sexual exploitation. Moreover, the court held that Matthews failed to present evidence that New York convicts defendants of child endangerment for offenses that are insufficiently serious to fall within the BIA’s definition of child abuse. Under these circumstances, the court concluded that the New York statute was a “categorical match” with the BIA’s definition and relief was not warranted.