Massachusetts Criminal Defense Lawyer Blog

Media access to police reports and booking photographs at issue before Massachusetts Supreme Judicial Court

April 7, 2019 | by Michael DelSignore

The Massachusetts Supreme Judicial Court will soon address what right the media has to access criminal records. The case involves the request of the Boston Globe for a booking photograph of an officer after an arrest. Attempts by the media to gain access to criminal files has been a big issue in the news recently. One of the major issues in the Robert Kraft case will be whether the media will be allowed to see the surveillance video of the spa. The case before the SJC involves similar issues of the right of public access versus the right of someone charged with a criminal offense not to be unduly shamed and harmed publicly by the publication of evidence of the criminal case. Having a booking photo posted online, is in someway more damaging to someones career and reputation than a criminal conviction. Normally, the media will access the police report and booking photographs through copying the court file which is public record; the case on appeal involved a clerk magistrate hearing where the complaint did not issue and another case where the court file was sealed. Clerk magistrate hearing are not open to the public; however, another lawsuit by the Boston Globe is attempting to challenge the privacy of clerk magistrate hearings.

The Massachusetts Supreme Judicial Court will hear oral arguments next month to determine whether a Superior Court judgment allowing press access to certain criminal record information should be overturned. In February all parties in the case of Boston Globe Media v. Dept. of Criminal Justice Information Services, Massachusetts State Police, and the Boston Police Dept. filed their briefs before the SJC.

This case stems from a series of public records requests made by the Boston Globe. When a Globe reporter requested booking photographs of law enforcement officers who had been arrested in the summer of 2015, his request was denied by the Massachusetts State Police on the basis that the disclosure of those photos was prohibited by the CORI (Criminal Offender Record Information) Act. On a separate occasion when The Boston Globe requested an incident report involving a Massachusetts state district judge, the request was denied for the same reason.

United States Supreme Court declines to address Constitutional challenge to unreasonable bail in recent Georgia case

April 6, 2019 | by Michael DelSignore

How long must one be deprived of his freedom before the deprivation is considered “absolute?” For what time period must a person be away from her job, her family, or her home before the loss of liberty is no longer considered a “mere diminishment of a benefit?” And what is the appropriate amount of time an indigent arrestee must wait to receive the same benefit as someone more affluent? On April 1, 2019, the Supreme Court of the United States denied a petition for a writ of certiorari filed in the case of Maurice Walker v. City of Calhoun, Georgia, a case which would have allowed it to consider these very questions.

In late 2015, Maurice Walker was arrested and charged with being a pedestrian under the influence of alcohol. At the time of the arrest, Mr. Walker had a mental illness which prevented him from working, and he received $530 per month in disability. Although the offense with which he was charged carried no jail time, the city of Calhoun, Georgia had a policy of requiring a cash bail for misdemeanor and traffic offenses. Not uncoincidentally, the cash bail amount equaled the amount of the fine an arrestee would pay if found guilty of the offense plus certain fees. The bail in Mr. Walker’s case totaled $160. Mr. Walker had the bad luck of being arrested during a week leading up to a holiday Monday in a small town with only one Municipal Court judge. Because Mr. Walker could not afford the bail, he was set to remain in jail for thirteen days awaiting a hearing which only occurred on non-holiday Mondays. Instead, Mr. Walker filed suit and was released after six days in jail on an appearance bond, and the City quickly modified their policy to allow for release of indigents after a maximum of forty-eight hours of incarceration.

The district court granted a preliminary injunction in favor of Mr. Walker, which the 11thCircuit vacated finding that the lower court had erred in applying heightened scrutiny to Mr. Walker’s argument. This formed the basis for the petition for certiorari. In his petition, Mr. Walker argued that under the Equal Protection and Due Process clauses of the Fourteenth Amendment to the U.S. Constitution, one could not be subjected to imprisonment solely because one was indigent. One of the judges on the divided 11th Circuit panel had agreed with Mr. Walker; Judge Martin argued that heightened scrutiny should apply because Mr. Walker, and those like him, suffered an absolute deprivation of liberty.

R. Kelly faces sexual assault allegations and potential defenses to the charges

April 1, 2019 | by Michael DelSignore

R. Kelly faces numerous counts of aggravated sexual abuse; it is alleged that the girls were underage at the time of the incident. In Massachusetts, when someone has sex with an underage person, the crime is referred to as statutory rape. With a crime like statutory rape, consent is not a defense to the crime. The only potential defense is to deny that any sexual contact ever occurred. In Massachusetts, the age for consent is 16 years old.

As matters stand now, R. Kelly made his first court appearance on Saturday, February 23, 2019, and a judge set his bond at $1 million dollars. He was charged with 10 counts of aggravated criminal sexual abuse and turned himself in to police the Friday prior to his bond hearing. The charges were based on a grand jury indictment that listed four victims. Three of the victims were younger than 17 at the time of the alleged abuse, which occurred between May 1998 and January 2010. These charges come amidst a Lifetime documentary which detailed numerous Tsurvivors account of the alleged sexual abuse at the hands of R. Kelly.

Kelly’s conditions of release were similar to what a defendant charged with a similar crime would face in Massachusetts. He was ordered to have no-contact provision with witnesses, alleged victims, or anyone age 18 or younger. He also had to turn in his passport.

Motion to Suppress in Robert Kraft case challenges whether the search was lawful under the 4th Amendment

March 29, 2019 | by Michael DelSignore

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.”

What to know when arrest for OUI in Massachusetts for the first time

March 25, 2019 | by Michael DelSignore

In this Blog, I address many of the common questions and concerns about Court someone would typically have when faced with a first offense OUI. I help people everyday understand the court process and make the best decision for them as to how they should handle the case. In many incidents, that involves taking the case to trial. But here are some of the most common questions I have been asked over the years.

Important note if you recently took a breath test: Breath test evidence is not currently being offered into evidence during Massachusetts OUI trials. Accordingly, the breath test result will not be considered by a judge or jury.

When can I get my license back and can I get a hardship license?

Admission of evidence of cocaine use during rape trial harmless error SJC rules in Commonwealth v. Sherman

February 22, 2019 | by Michael DelSignore

The Massachusetts SJC held today in Commonwealth v. Richard Sherman, Jr. that in a rape trial, when the sexual encounter starts consensual and it is alleged that the victim withdrew her consent, that the defendant is entitled to a jury instruction that a consensual sexual encounter can become rape if the victim withdraws her consent during the intercourse and the defendant continues with sex by force or threat of force. The SJC held that the instruction is required when the jury asks a question on this issue.

The Court found that the error was harmless in this case because the victim testified that the sexual encounter was never consensual while the defendant claimed that it was always a consensual sexual encounter. The defendant was acquitted on the charge of oral rape which the court held meant that the jury could have concluded that the victim consented to oral sex but not penetration. While these are two different theories of rape, the jury questions and the lack of instructions on an important element of the law does not seem to be harmless error.

Should the trial judge have admitted evidence of cocaine use?

Can Massachusetts prohibit a non-resident from carrying a handgun through the State: SJC to address issue in Commonwealth v. Harris

February 20, 2019 | by Michael DelSignore

The Massachusetts Supreme Judicial Court heard oral argument in the case of Commonwealth v. Brain Harris that raised the issue whether Massachusetts law denies nonresidents the right to bear arms by exposing them to criminal penalties for not having an FID card. This case was argued in November with a decision likely in the next month or two.

In the Harris case, the defendant, Harris, was charged with possession of a firearm without an FID and possession of a Large Capacity Firearm out of the Lowell District Court. The defendant got into an argument with his then-girlfriend who called the police. When the defendant’s girlfriend called the police, she told the police he had guns; the police came to the apartment with guns drawn. Harris showed the police a license to carry in New Hampshire and lead the police to the guns.

Where did the defendant Reside?

Massachusetts SJC to decide if providing heroin resulting in overdose can result in Involuntary Manslaughter Conviction

February 18, 2019 | by Michael DelSignore

The Massachusetts Supreme Judicial Court heard oral argument in the case of Commonwealth v. Jesse Carrillo, where the defendant was convicted of involuntary manslaughter based on providing heroin to the deceased. The defendant was a heroin addict himself and the evidence at trial indicated that he went to New York to buy heroin and that he would bring some heroin back to the victim.

At trial the defendant was convicted of both distribution of heroin and involuntary manslaughter. The defendant claimed that the trial court committed reversible error by refusing to instruct the jury on the lesser included offense of joint possession of heroin. It was the defendant’s claim throughout the trial that he was a user and an addict but was not distributing heroin or making any profit from selling heroin. The defendant testified in his own defense at the trial and outlined his heroin addiction. The defendant also presented expert testimony.

Defense Expert

Massachusetts SJC holds jurors can bring personal world view into jury service and avoid challenge for cause in Commonwealth v. Quinton Williams

February 13, 2019 | by Michael DelSignore

The SJC decided the case of Commonwealth v. Quinton Williams finding that the trial judge did not error by excluding a juror who stated that the criminal justice system was rigged against young black Americans. The SJC in the majority opinion and concurring opinion of the Chief Justice stated that it would not be proper to exclude the juror for cause based on this opinion, which the Court indicated has empirical support so is closer to a fact than opinion.

The Court found that the trial judge properly excluded the juror because of her equivocation about whether she could be fair and impartial. The Chief Justice in his concurring opinion indicated that the court gives great deference to a trial judge questioning a juror as the questions are quick and spontaneous. The Chief Justice indicated that while he would not have excluded the juror and may have asked more questions, that he did not find a reversible error in the decision to exclude the juror.

The defendant argued that if the court strikes a juror for cause improperly, the court should automatically reverse the conviction as it is a structural error in the trial, the equivalent of giving the Commonwealth and extra peremptory challenge. The Court rejected the argument that this is the same as denying the defendant a peremptory challenge finding that the juror was presumably replaced with another fair juror. The Court found that a defendant is not entitled to a a jury of any particular composition.

Obtaining medical records and Psychiatric Records in Massachusetts Sexual Assault Charge

February 8, 2019 | by Michael DelSignore

The right of confrontation is the most important and cherished right for protecting an accused‘ a right to a fair trial in the United States. It is preserved by the Sixth Amendment to the United States Constitution. Judges have spoken of the right of confrontation in the following terms:

With sexual assault cases, the Court has diminished the right of confrontation in an effort to protecting statutory privileges against the disclosure of records regarding psychiatric treatment, educational records and other type of records.

In the case of Commonwealth v. Richard Jones, the Massachusetts Supreme Judicial Court imposed an extremely high bar on defense lawyers seeking access to records to impeach the complaining witness.