Massachusetts Criminal Defense Lawyer Blog

Federal Indictment against Massachusetts District Court Judge Shelley Joseph should be dismissed as an abuse of prosecutorial power and attempt to interfere with a State Judiciary proceeding

May 1, 2019 | by Michael DelSignore

District attorneys and public defenders filed a lawsuit Monday April 29, 2019 to prohibit Immigration and Customs Enforcement (ICE) agents from entering into state courthouses to enforce detainers.

What’s an ICE Detainer?

The United States Department of Homeland Security allows ICE the ability to issue a detainer, which is an immigration hold request to federal, state, and local law enforcement agencies who currently have an alien arrested on criminal charges in their custody. The detainer asks law enforcement agencies to notify ICE before releasing the alien, and to additionally detain the individual up to 48 hours in order for ICE to determine whether or not they wish to take the alien into federal custody. ICE uses detainers for those aliens they have probable cause to believe should be deported from the U.S.

Why hire DelSignore Law and what makes us the best option to defend your Massachusetts OUI case

April 29, 2019 | by Michael DelSignore

In 2005, I started DelSignore Law as a criminal defense firm handling all types of criminal charges. While we handle every type of criminal charge, we soon got recognized around Massachusetts for handling DUI cases. It was a great honor to quickly be recognized as one of the top firms for OUI defense in Massachusetts. The reason I like handling OUI cases is that I can really identity with what the client is going through. After an arrest, a person feels as though their life is over, they worry about their job, and family life and it is an anxiety that from day one I try to ease for the client. I can relate to someone who has worked there entire life for something only to believe that it is taken away by one mistake; to give someone a second chance by proving a stop was unlawful, that there was not sufficient evidence to prove the case in court or to be passionate enough to be able to convince the jury in the face of difficulty facts is a very rewarding job.

Unfortunately, until the person hears the words not guilty, I cannot predict the outcome or completely ease the stress of being charged. But I have tried to develop systems over the years to reduce the stress during the process. I understand what my clients are going through. It was three days before my law school orientation at University of Connecticut School of Law where I was going to start law school. It was a goal I had been working toward for the last four years of college. It was my vision in high school as I was on the mock trial team.

All of a sudden while driving home from Bryant College I saw the blue lights in the back of my window like so many of my clients. I was on the side of the road performing field tests, thinking I passed only to be told I failed. How was that possible? My fate was in the hands of a police officer. There was nothing I could do. I knew I drank next to nothing that night; I was released and never charged because when I took the breath test the result was zero. I was arrested because I was nervous and overcome with fear from having my fate in the hands of a police officer. While I did not go through the stress having to go to court, the experience stuck in my mind that my clients are all at the mercy of the judgment of a police officer. When I looked at the report the officer wrote, I noticed it was inaccurate, putting quotes for phrases I never use.

Unites States Supreme Court Review sought in Rap Music case to clarify meaning of true threats under the 1st Amendment

April 24, 2019 | by Michael DelSignore

Last August, the Pennsylvania Supreme Court upheld the conviction of Jamal Knox, a rap artist, for multiple charges stemming from what the trial court found were terroristic threats based on the contents of his rap song “F**ck the Police.” Knox petitions for Supreme Court review and if granted, the Court could not only clarify the “true threats” standard – a muddledarea of First Amendment jurisprudence – but weigh in on the culturally-sensitive and complicated relationship between rap music and free speech.

It is well-established law that true threats of violence fall outside of First Amendment protection. What constitutes a “true threat,” however, remains far from settled. In Watts v. United States, 304 U.S. 705 (1969), the Supreme Court held the First Amendment does not protect statements a reasonable person would regard as threatening. In Virginia v. Black, 538 U.S. 343 (2003), the Supreme Court added a discussion of speaker intent to “true threat” jurisprudence, but fell short of establishing a subjective intent requirement.

Since Black, courts have employed divergent standards when evaluating whether a statement rises to the level of a true threat. Some follow more of an objective standard, asking whether a reasonable person would find the statement threatening. Others, however, follow more of a subjective standard, focusing on whether the speaker intended to communicate a threat by their statement. In fact, the law is so muddled that in some states, like Massachusetts, the federal and state courts within the same state do not apply the same standard.

Which Massachusetts Police Departments have Video of OUI arrests?

April 23, 2019 | by Michael DelSignore

Video of an individual taking the field sobriety tests in a Massachusetts OUI arrests rarely exists as most Massachusetts police departments do not have cruiser video. This is surprising to most people that meet with me to discuss an OUI charge believe that the entire encounter will be on video of their OUI arrest. In fact this assumption is not true. Most police departments do not have cruiser video. The State police does not use cruiser camera and only a small fraction of local police departments have cruiser video. You are more likely to find a cruiser video in Worcester county than most of the other counties. While this is not an exhaustive list, the following police departments have cruiser video in at least some of their police cars.

Police Departments with Cruiser video

Webster

Massachusetts SJC to define up skirting in case of Commonwealth v. Wassilie

April 23, 2019 | by Michael DelSignore

In the case of Commonwealth v. Sam C. Wassilie, the Supreme Judicial Court for the Commonwealth of Massachusetts (SJC) is currently considering whether a Superior Court judge properly dismissed criminal charges involving alleged “upskirting”. Upskirting is traditionally defined as secretly filming/photographing up a woman’s skirt to view her private areas. The Commonwealth is appealing the dismissals entered by the Court, and Wassilie is cross-appealing on the counts that the Court declined to dismiss. The Massachusetts Supreme Judicial Court heard oral argument in the case on April 2, 2019.

Wassilie was found to have set up a cell phone in a concealed area in the public restroom of the Pine Grove Athletic Field in Dalton, MA. Police obtained a search warrant and found videos on Wasillie’s phone and laptop showing children and adults using the bathroom. The footage showed Wasillie setting up the camera and concealing it with paper towels, and was positioned to captured footage of the genitals and buttocks of individuals using the restroom.

The prosecution argues that the Superior Court Judge made three errors when dismissing several of the Commonwealth’s charges: 1) ruling to dismiss instead of ordering a new trial, 2) finding that there was not sufficient evidence of the crime, and 3) finding that Massachusetts’ “upskirting” statute is ambiguous.

Reliability of Hair Drug Testing at issue in Boston Police officer’s claim that he was wrongfully denied employment with the Boston Police based on an inaccurate drug test

April 21, 2019 | by Michael DelSignore

A Boston police officer found himself on the wrong side of inaccurate scientific evidence when he was denied employment based on a positive hair drug analysis. The Massachusetts Supreme Judicial Court is currently considering a case titled Boston Police Department v. Michael Gannon and The Massachusetts Civil Service Commissioninvolving the use of hair drug tests to determine eligibility for employment. The Massachusetts Supreme Judicial Court recently heard oral argument in the case; the main focus of the argument is whether the hair drug test is a reasonable test of employment. The Boston police department has a strict policy that any positive drug test results in disqualification from employment; the legality of that policy was not challenged in this appeal.

The appellant in this case, former Boston Police Cadet Michael Gannon, was passed over for appointment as a Boston Police Officer because a hair drug test he was given came back positive for cocaine. In addition to the fact that the accuracy of hair drug tests has been refuted by some scientific experts, Mr. Gannon had also taken five other hair drug tests as a part of the recruitment and certification process and all five came back negative for drug use. When he learned that he was being denied a position as a full Officer with the Boston Police Department based on the positive hair drug test, which he maintains was not accurate, Mr. Gannon filed an appeal to the Civil Service Commission to contest the decision. The Commission determined that because of the unreliability of hair drug tests, the Police Department did not have reasonable justification for refusing Gannon the position. Being dissatisfied with that result, the Department sought judicial review before the Superior Court. The Superior Court reversed the Commission’s decision, and Gannon now appeals before the Supreme Judicial Court to have the Commission’s original decision reinstated. The Boston Police officer argued that the Superior Court judge should have given difference to the findings of the Commission.

Oral Argument before the Massachusetts Supreme Judicial Court

Massachusetts SJC to define held under arrest for purposes of Dangerousness statute allowing for pretrial detention without bail

April 18, 2019 | by Michael DelSignore

In Commonwealth v. Finn, the Massachusetts SJC will decide whether the Superior Court can hold a defendant under the dangerousness statute of 58A after the defendant was released by the district court.

The statute says that a person who is “held under arrest” for a felony as enumerated in Subsection 1 of §58A may be detained if that person’s release would not reasonably assure the safety of any other person or the community. The determination would hold that the person poses a danger to others based on the factors of that person’s arrest and his/her first appearance before the court.

Defendant James Finn has been held in detention March 7, 2018 based on the Court’s determination that he was dangerous to the community. The defendant was arrested on December 3, 2017 and charged with three counts of indecent assault and three counts of providing harmful material to minors. The alleged victims were three children around the age of eight who lived in the same apartment building as Finn and his wife. Finn was allegedly under the influence of alcohol at the time. Finn was in custody when initially arraigned on December 4, 2017. The Commonwealth moved to detain him on the basis of dangerousness under G.L. c. 276, §58A. This was allowed since Finn did not at the time have a stable residence. Finn was held in detention until conditionally released by the district court on January 22, 2018. His arraignment in superior court was scheduled for March 7. Finn appeared for arraignment, and the Commonwealth moved again for pretrial detention under §58A. The defendant opposed the motion and argued that since he was not subject to arrest the dangerousness statute did not apply to him. The Court disagreed, and Finn has been in detention since March 7 and is appealing the decision to detain him under §58A.

Odor of Marijuana and search of commercial building to be consider by Massachusetts SJC

April 14, 2019 | by Michael DelSignore

The Massachusetts Supreme Judicial Court heard oral argument on April 2 in the Commonwealth v. Long. This case raises the issues of the detection of marijuana and probable cause to search a commercial building.

In this case, two officers were conducting patrol when they noticed two vehicles parked behind a commercial building. Another officer arrived on scene, and all three secured a perimeter around the building. Upon doing so, the officers detected an overwhelming odor of unburnt marijuana. The officers also noticed that the ventilation inside the building was covered with plywood. The building was being leased to Defendant Long, who had a criminal drug history. The owner of one of the vehicles also had a prior drug history. Using these facts as support for probable cause, an application for a search warrant was made and a search warrant was issued. Defendant Long was charged with trafficking more than fifty but less than one hundred pounds of marijuana. Long filed a Motion to Suppress and the case is currently before the SJC.

The Justices will have to determine whether the untrained nose can reliably detect, based on odor, the presence of a criminal amount of marijuana in a building as opposed to in a vehicle. The Justices also have to determine whether the presence of a vehicle registered to an owner who has a marijuana conviction is sufficient to establish probable cause. The answer to these questions will provide useful guidance to law enforcement officers.

Massachusetts SJC to decide whether failure to secure a child properly into a car seat can constitute involuntary manslaughter

April 12, 2019 | by Michael DelSignore

The Massachusetts Supreme Judicial Court will decide whether the failure to secure a child properly in a car seat can result in an involuntary manslaughter conviction. The case is Commonwealth v. Hardy, where the defendant Hardy was convicted by a jury of involuntary manslaughter. On appeal, Hardy argues that her failure to secure her child in a booster seat is a legally insufficient basis for her conviction as to manslaughter and reckless endangerment of a child. A manslaughter conviction requires the Commonwealth to prove, “the defendant unintentionally caused another’s death during the commission of wanton or reckless conduct,” and said conduct, “created a high degree of likelihood that substantial harm would result to the victim.”

Similarly, a conviction for reckless endangerment of a child requires the Commonwealth to show the defendant recklessly engaged in conduct that caused substantial risk of serious bodily injury to a child… or wantonly or recklessly failed to take reasonable steps to alleviate such risk when there was a duty to act. G.L. c. 265, §13L.

Was Hardy’s conduct, failing to secure Dylan in a booster seat, wanton or reckless? Was Hardy aware that her failure to use the booster seat created a high degree of likelihood that substantial harm would befall Dylan? Courts have defined recklessness as conduct involving a grave risk of harm to another that a person undertakes with indifference to or disregard of the consequences. Commonwealth v. Welansky, 316 Mass. 383, 399 (1944). Hardy submits her act of merely using the seatbelt and not the booster did not rise to the requisite level of wanton or reckless conduct. She further alleges that the Commonwealth provided no evidence as to whether Dylan may have survived the crash if a booster seat had been utilized. In her brief, Hardy argues that at most, the Commonwealth is alleging her conduct was merely negligent and as a matter of law, a legally insufficient basis for the conviction of manslaughter. She further asserts that an individual who fails to secure a child in a vehicle at all might engage in wanton or reckless conduct, but she took steps to mitigate, the inherent risk associated with any passenger in a vehicle by making sure Dylan was at least wearing a seatbelt.

Boston Globe lawsuit attempts to make Massachusetts Clerk Magistrate hearings public record

April 9, 2019 | by Michael DelSignore

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.