Massachusetts Criminal Defense Lawyer Blog

Can Facebook and other social media companies regulate Speech under the 1st Amendment: Supreme Court may address the issue in Moody v. NetChoice

April 5, 2023 | by Michael DelSignore

What restrictions can social media companies like Facebook, Twitter, Instagram and Tik-Tok on their social media platforms? The First Amendment to the United States Constitution protects free speech and the case of Moody v. NetChoice that is before the United States Supreme Court on a petition for certiorari may redefine what it means to be a public forum and when private companies can limit speech on a platform that has global reach. You can reach about the Moody case on the Scotus Blog.

The issues in Moody v. NetChoice, LLC are whether the First Amendment precludes a state from requiring social-media companies to host third-party communications and regulating when, where, and how they do so; and whether the First Amendment precludes a state from requiring social-media companies to notify and explain to their users when they censor the user’s speech.

In their petition for writ of certiorari, Florida officials argue that the Eleventh Circuit’s decision in Moody v. NetChoice, LLC violates the First Amendment’s protection of free speech and the ability of private entities to exercise editorial discretion in the content they host on their platforms. The Florida officials specifically argue that the Eleventh Circuit erred in ruling that Florida’s law, which requires social media companies to host third-party communications and regulates when, where, and how they do so, is unconstitutional.

Massachusetts Appeals Courts discusses evidence to prove operation in recent Concord District Court OUI case

April 1, 2023 | by Michael DelSignore

As a Massachusetts OUI Lawyer when I reviewed a case I make sure that the Commonwealth can prove operation. In conversations with clients, many times the client will believe that the Commonwealth cannot prove operation because the client was not scene driving; however, Massachusetts OUI law does permit circumstantial evidence of operation. One of the key rules on operation is that a conviction of OUI cannot be grounded solely in the uncorroborated confession of a defendant. But what type of evidence is sufficient to establish corroboration. The Massachusetts Appeals Court in the case of

In recent weeks, the Appeals Court for the Commonwealth of Massachusetts clarified the standard of corroborated evidence required for convictions based on admissions. The Appeals Court addressed this issue in Commonwealth v. Lagotic, on March 15,2023.

What does it mean to Corroborate a confession?

United States Supreme Court considers when police can enter a private home without a warrant

March 30, 2023 | by Michael DelSignore

The United States Supreme Court may consider whether police need an arrest warrant to enter a person’s home or whether they can enter a home without probable cause that the person resides there and is present.

The Supreme Court ruled in Payton v. New York, 445 U. S. 573 (1980) that the Fourth Amendment prohibits police from entering a suspect’s home without a warrant or under exigent circumstances. The Court struck down a New York statute providing for such warrantless entries because the Fourth Amendment draws a firm line at the entrance to the house.

The circuit split referenced in the petition for cert in the Pennington case refers to the disagreement among the lower courts on the standard required for police to enter a suspect’s home to execute an arrest warrant. Some circuits require police to have additional probable cause beyond the arrest warrant to enter a residence, while others do not.

Massachusetts Witness Intimidation charge from Lawrence District Court vacated by Appeals Court

March 26, 2023 | by Michael DelSignore

Witness Intimidation is a common charge that will often accompany a domestic assault and battery charge in Massachusetts. In the case of Commonwealth vs. Jeffrey S. Wheeler, it was alleged that the charge was against the Judge and not a specific person.

The defendant was convicted of two counts of intimidation in violation of G. L. c. 268, § 13B (intimidation statute). The defendant placed a telephone call to case specialist in the Newburyport Division of the District Court Department clerk’s office and stated that he was going to go rogue on a judge, that the judge was not “going to be a Judge anymore,” and that “it was going to appear on the TV.” The defendant mentioned the name of someone he said was involved in a court case and said that he was going to serve the judge with paperwork, but the case specialist believed it sounded like he was going to “take things into his own hands and do it himself.”

The Judge was made aware of the defendant’s telephone call to the clerk’s office and was immediately escorted to her office under the protection of a State trooper. The Judge was escorted home by State police at the end of the day. The Judge was shocked by the threat because the defendant’s name “did not resonate” with her.

Massachusetts Board of Appeals: Tips to getting your license back

March 18, 2023 | by Michael DelSignore

If you have had your license suspended by the Massachusetts RMV, you know it is a frustrating and difficult process to get it back. Often, you will need a hearing with the Massachusetts Board of Appeals to get your license back. This is a three member board that has more discretion to reinstate your license than the RMV. To get to the Board of Appeals, you must fill out a form and send in a fifty dollar filing fee. Your hearing will be scheduled in four to six months. Here are some tips for success before the Board.

The Board is not simply going to reinstate your license no matter how long you have been without it.
You must address the reason for the suspension; if it is medical, make sure to fill out the RMV medical forms. There is a medical evaluation form as well as a loss of consciousness form if there is any allegation you lost consciousness or sustained a head injury.

Massachusetts SJC will address how to prove Racial Profiling in upcoming appeal in Commonwealth v. Cuffee

March 16, 2023 | by Michael DelSignore

The Supreme Judicial Court for the Commonwealth of Massachusetts is set to decide in the coming weeks on a very controversial and important criminal case. Commonwealth v. Cuffee is set to clarify some pending arguments regarding the state of Equal Protection rights in Massachusetts. Should a defendant have to prove racial profiling before he is allowed to request the statistical data to support his claim, or should the facts of the case allow him to make a reasonable inference to request the data? Does it matter if the profiling occurred during a traffic stop or a pedestrian stop? What if the defendant does not argue an unlawful search or seizure, does it matter if the officer was motivated by race? These are some of the questions the Supreme Judicial Court is tasked with answering. You can watch a video of the oral argument here.

The defendant in this case, Mr. Kieson Cuffee, an African-American male, was arrested in 2019 and subsequently convicted after police received a ShotSpotter report. The ShotSpotter reported an alleged incident of gunfire near a local intersection. Kieson was running down the street, a few blocks away, in a fairly busy part of Springfield, then stopped and entered a local bodega. When detectives entered the area to investigate the initial report, they noticed Kieson running, possibly with something on his right side, and subsequently, stop and enter the bodega. At the time, the detectives had no indication that actual gunfire had occurred and had no description of any alleged suspects. Based on observing Kieson, they swung their unmarked car around, parked, and entered the store. There they cornered Kieson, violently attempted to detain him, and injured Kieson, all in under 30 seconds. Frightened and bleeding profusely, Kieson ran and was chased down and arrested shortly after. He was convicted and has appealed his case.

After his arrest, Kieson’s attorneys, utilizing the recent rulings in Commonwealth v. Long and Commonwealth v. Lora, argued against the stop and requested records on the arresting detectives. Specifically, based on the facts surrounding the arrest, the history of the arresting department, and other factors required in Long to show a reasonable claim of selective enforcement of the law, they requested documents relating to the arresting detectives such as their police reports and field interview reports for a year leading up to the arrest of Kieson. Based on Long, where the Supreme Judicial Court set out its desire to lower the burden on defendants to make a reasonable claim. It seems to be a logical extension of the Long decision that the SJC would allow discovery to prove racial bias that violates the Equal Protection Clause.

Massachusetts OUI arrested after a 911 call claiming you were driving erratically

March 13, 2023 | by Michael DelSignore

Often an OUI charge in Massachusetts will begin with a civilian calling 911 to claim you were driving erratically. What can be done to challenge the basis of the stop and your arrest for OUI?

It is well-settled that under Massachusetts law, a 911 call can be used as the basis for a stop on suspicion of drunk driving. However, you understand that the Commonwealth must pass both the basis of knowledge test and the veracity test of Aguilar-Spinelli to show both that there was a sufficient basis for reliability in the 911 call. Additionally, the Commonwealth must show that the stop was not pretextual on the basis of race. Simply demonstrating that there was reasonable suspicion for the stop does not satisfy the Commonwealth’s burden to show it did not violate the defendant’s equal protection rights.

Regarding the sufficiency of particularity given in a 911 call to be the basis for a car stop, the recent case Commonwealth v. Westgate, 101 Mass. App. Ct. 548 (2022) affirmed a 2009 decision where that court stated “Where a police radio broadcast directs an officer to make an investigatory stop of a vehicle, the stop is lawful only if the Commonwealth establishes both the particularity of the vehicle’s description and indicia of the reliability of the transmitted information.” In Westgate, the trial court initially granted the defendant’s motion to suppress based on the fact that there was insufficient information to show reliability of the stop of the defendant’s Mercedes. However, the Commonwealth appealed, and the Appeals Court reversed, indicating that a 911 call of an apparent “drunk driver” who “almost hit a telephone pole” provided sufficiently reliable information to justify a traffic stop under the reasonable suspicion standard, where the caller also was able to give the description of the vehicle, a white Mercedes, the direction of travel of the vehicle, and was able to read the license plate number to the car, despite the fact that the second occupant of the vehicle did not give her name.

The 4th Amendment Implications of Police Officer Bodycam Footage

January 19, 2023 | by Michael DelSignore

The Massachusetts SJC heard arguments in Commonwealth v. Rainey regarding the 4^th amendment implications of police officer bodycam footage. In this case, an officer responded to a call at the defendant’s house and had a bodycam recording the outside and what could be seen of the inside of their house without a warrant. The basis for the claim was both the 4th Amendment of the Constitution and Article 14 of the Massachusetts Declaration of Rights.

There were two arguments. The first argument was that it was error to rely on an illegal audio recording to determine that Mr. Rainey had committed a new crime, therefore violating his probation. Here, the illegal audio recording formed the entire basis of the judge’s revocation of Rainey’s probation and drove the result. The Massachusetts Wiretap Statute makes it a crime to “willfully commit an interception, attempt to commit an interception, or procure any other person to commit an interception or to attempt to commit an interception of any wire or oral communication.” An interception means “to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or personal communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication.”

In Commonwealth v. Yusuf, the SJC addressed privacy concerns of police body cameras recording the inside of people’s homes. This case mainly talked about video recording what was visible in plain view. The body cam was not obvious, and the officer even warned fellow officers that it was there since it wasn’t visible. The exceptions that would make this type of recording admissible are investigating organized crime or responding to a dangerous situation that is more than just an assault and battery. However, there is no exception for recording people in their private homes just because they sought the assistance of police.

The Role of the First Amendment Right to Free Speech in Public Town Meetings.

January 11, 2023 | by Michael DelSignore

The Massachusetts SJC grappled with a First Amendment free speech appeal in Barron v. Southborough Board of Selectman. The defendant had participated in a public meeting to present comments about recent illegal activity the town was committing. The defendant quietly waited for the public comments section of the meeting and then began by asking basic questions. When she asked about the reasoning behind a proposal for a town manager instead of a town administrator, she was told by the moderator that there was “no back and forth during public comment.” She then wanted to ask about the board participating in irresponsible spending and allegations of violations of law. When she began to do so, the moderator interrupted Barron saying, “if you want to slander town officials who are doing their very best then we will stop this public comment session.” Subsequently, the defendant stated, “you need to stop being a Hitler, I can say anything I want.” The moderator then got up, came toward the defendant, and started pumping his fist at her, yelling at her aggressively, calling her disgusting and threatening to have her removed. The transcript from this public meeting only reflected the defendant’s inappropriate comment, not the threatening and aggressive acts of the moderator that followed. Barron was then traumatized and afraid to go to any other meetings or participate in local affairs like she had done her entire adult life.

The defendant claimed a violation of her First Amendment right to free speech and Article XIX of the Declaration of Rights in Massachusetts. The case explained that “speech on public issue occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” In First Amendment cases, a plaintiff must prove that their “exercise or enjoyment of constitutional rights has been interfered with, or attempted to be interfered with, and that the interference was by threats, intimidation, or coercion.”

Additionally, both state and federal courts have developed the Public Forum Doctrine, where the extent the Government can limit access for those seeking to exercise protected speech in a particular forum “depends on whether the forum is public or nonpublic.” There are three categories of forums: Traditional Public Forums, Designated Public Forums, and Non-Public Forums. Traditional public forums include places such as public streets. Designated refers to places where the government has invited the public to a certain place to assemble and speak together. Lastly, non-public forums are forums which are limited to use by certain groups or isolated to certain subjects. The court determined that this meeting was a designated public forum since the public comment aspect invited public participation and the purpose was to invite the residents of the town to assemble and speak.

The powerful impact of hair comparison identification evidence in homicide cases.

January 4, 2023 | by Michael DelSignore

The Massachusetts SJC heard oral arguments on November 2, 2022 in Commonwealth v. Eagles, a case regarding hair comparison evidence in homicide cases. The defendant was a lookout for a breaking and entering of what he thought was an empty home and he later went inside to find a man lying on the floor bleeding and the man eventually died. Hair was found on the deceased victim’s hand and the Commonwealth went through various hair comparison techniques and determined that two of the hairs found were consistent with the victim’s head hair, and two other hairs were consistent with the defendant’s head hair.

According to hair comparison statistics at the time of the first trial, there was only about a 1 in 4,500 chance that a hair would match with someone, meaning it is consistent with various hair characteristics. These characteristics include but are not limited to hair shaft, hair length, whether the hair was forcibly removed, etc. It was determined during the first trial that Eagles’ hair matched the hair found at the scene, inferring that he was inside the home during the assault. Additionally, the victim’s hand where Eagles’ hair was found was tucked under his body, and that implied the defendant must have been inside the home when the assault occurred, because it was highly unlikely the hair accidentally got underneath the body.

The defense presented two arguments on appeal: 1) the hair evidence presented at the first trial was recently proved invalid, and 2) the hair comparison statistics were a large determinant in the jury’s decision to convict the defendant of first-degree murder. The statistical evidence about hair comparisons that was presented at Eagles’ trial was generally accepted at the time, but after a report and FBI agreement came out, it became evident that this type of evidence was invalid. The 2009 NAS report revealed fundamental flaws in hair comparison evidence, the most important being that there is no generally accepted number of characteristics required to match in order to deem hairs consistent with someone. And an FBI agreement from 2012 asserted that testimony which explicitly or implicitly suggests a statistical probability of a hair match like in the Eagles case goes beyond scientific proof and is erroneous. The report and FBI agreement became available after the Eagles case, and they cast doubt on this case as well as many others which relied on hair comparison as the main evidence upon which the defendant was convicted.