Massachusetts Criminal Defense Lawyer Blog

Massachusetts Highest Court cites racial profiling in suppressing evidence in gun case

September 21, 2016 | by Michael DelSignore

The Massachusetts Supreme Judicial Court found that the police had no reasonable suspicion to stop a black male walking on the streets in Roxbury believed to be a suspect in a breaking and entering. As result of the seizure, the police found a hand gun; the Court ordered it suppressed as there was no basis for the detention of the defendant.

The SJC overruled the decision of the motion judge who would found no Constitutional violation under the 4th Amendment or Article 14. The Court decision held:

Flight provides little or no weigh in an analysis of reasonable suspicion unless the person is committing a crime, as the police could induce flight and thereby create a suspicion where none exits.

Prior Bad Act Evidence one of the key legal issues in the Bill Cosby Indecent Assault Trial

September 21, 2016 | by Michael DelSignore

Key to Cosby’s success at upcoming jury trial will be the judge’s ruling on numerous motions in liming defining what evidence the jury will get to hear at trial.

A judge has ruled that prosecutors can use a phone call that was taped without Bill Cosby’s consent as evidence in his sexual assault trial. Cosby argued that because he did not know the call was being taped, that it should be excluded from evidence under a two party consent law. However, the judge denied the request according to a report by Fox News.

The case raised some interesting legal issues, include whether the Court will allow prior bad acts of uncharged conduct into evidence at trial. Generally, prior bad act evidence would be inadmissible at trial, but can be admitted if it shows a common plan, scheme or method of operation. A judge has to determine whether the probative value of this evidence out weights its unfair prejudice to the defendant. A jury is instructed that the defendant is not charged with committing any prior bad acts and that it cannot consider those prior bad acts as proof of the current charge. But prior bad act evidence to be used to show motive, state of mind, intent, common scheme, absence of mistake or identity. In Aaron Hernandez’s recent murder trial where he was convicted, the judge did not permit the Commonwealth to offer into evidence that the victim knew that he was allegedly involved in a 2012 shooting. The Court ruled that this testimony would have been unfairly prejudicial. Accordingly, the defense was allowed to argue that he had no motive to commit the crime. The reason that the judge declined to allow this evidence to come into evidence at trial is that it would have been too difficult for the jury to keep the alleged prior bad act separate from the criminal conduct that the defendant was on trial for.

The Client’s Perception of their Criminal Defense Lawyer

September 20, 2016 | by Michael DelSignore

One of the most important aspects of building a successful criminal defense practice is being able to relate to the client and understand the client’s fears and anxiety when going through an uncertain court process. For most clients, it is their first interaction with a lawyer and the criminal justice system. I have found that we can reduce the client’s anxiety by explaining the process in greater detail.

SEE THE CASE THROUGH THE EYES OF THE CLIENT

In an excellent Article in the Champion Magazine produced by the National Criminal Defense Lawyer Association, Chelsea Davis, Ayesha Delany-Brumsey, and Jim Parsons, wrote an article from the Client’s perspective where they interviewed clients to gain their perspective of their lawyer.

Generally speaking, attorneys are fully equipped to understand and interpret the law. As an attorney’s primary duty revolves around providing legal counsel to their client, it is sometimes easy to forget that clients are not as familiar with the criminal justice system. The attorney- client relationship, specifically the communication between the two, can either contribute to or hinder the development of positive working relationships. Defendants, more often that not, are unclear about even the basic elements related to court procedure, and it is common for attorneys to overestimate exactly how much their client understands regarding the proceedings according to the article.

Not only is it important for clients to understand the basic proceedings of the court system and the law, clients feel the need to share their side of the story with their attorney. In a study conducted, 35% of respondents identified a positive experience during the first encounter with their lawyers. Almost two thirds thought the experience was both negative and stress inducing. Clients want to feel as if you understand their version of the events, and appreciate when you listen to what they have to say regarding their case as this quote from a client illustrates:

“She didn’t introduce herself. She said she was a lawyer… She didn’t write anything down and had no paperwork. She didn’t do anything. She didn’t ask me about my opinions or what I think or anything” (NACDL, 2016).

Attorneys, when asked, more commonly than not identified their clients satisfaction as being directly related to the outcome of the case. However, we know that this is not true-as clients themselves actually reported that communication with their attorney was significantly more crucial to their experience. The quality of the communication between both the client and the attorney has the ability to influence a clients overall opinion of his of her attorney, regardless of the outcome of the case.

Overall, a clients satisfaction can be increased by, as an attorney, taking simple steps to improve overall relationships with clients and keeping the communication open. Simplygoing through the motions upon obtaining a new client will not result in a successful practice. Ensuring your clients understand the court process, what exactly is going on in their case, allowing the client to tell his or her story, and providing your client with the idea that you understand and believe them will result in an improved relationship. Continue Reading ›

Drug convictions for trafficking and distribution likely to be vacated based on Braintree Police Evidence Scandal

September 15, 2016 | by Michael DelSignore

Drugs convictions and other types of criminal convictions may be vacated based on the lack of oversight at the Braintree Police Department. Following the completion of an audit conducted on Braintree Police Department’s evidence room, it is suspected that thousands of items, items such as weapons and money, are among the missing. It is estimated that roughly $407,998.oo in cash is missing from the department, and nearly 60 guns have gone unaccounted for (Patriot Ledger, 2016). This week according to the Patriot Ledger several drug trafficking charges were dismissed, this scandal is likely to result in numerous motions for new trials and to vacate pleas in cases involving the Braintree police, alleging new discovered evidence, lack of knowledge of the status of the evidence and or ineffective assistance of counsel in making a plea or in handling the trial. To learn more about what rights you may have if your were arrested by the Braintree police, you should contact a criminal defense lawyer or fill out the form on our website.

Not only are several thousand pieces of evidence missing, the audit revealed the disheveled record-keeping, or lack thereof, was completely mishandled- evidence was left unlabeled and sexual assault test kits were simply left outside in a trailer. A whopping total of 4,709 pieces of narcotics evidence are unable to be accounted for, and 38 pieces have been tampered with- meaning they have been opened or left unpackaged. In theory, the evidence is supposed to be stored in an orderly fashion, with a chronological date attached as well as the Braintree Police property number. However, this was not the case.

Over several years, it is common for police departments to seize massive amounts of money from offenders. While this sort of evidence is supposed to be kept track of and monitored frequently, the evidence bags containing money at the Braintree Police Department appeared to either be ripped open or cut at the bottom. Mostly, this cash was the product of crimes which occurred in the years of 2001, 2002, 2012 and 2013 (Patriot Ledger, 2016), with a majority of this money missing from 2001 specifically.

Cloud legal services for lawyers provided by Clio

September 15, 2016 | by Michael DelSignore

In running a law practice, one challenge is to understand how technology can make your practice run more efficiently so your clients have the best experience possible. Two technologies that have assisted me in this process are the iCloud and my client management system called Clio.

With todays updated technology, attorneys have access to a variety of case management systems as well as to tools and tricks to help keep all their information in one spot. iCloud, a technology presented by Apple, connects an individuals many devices. iCloud ensures you have all your documents, pictures, contacts, and more all in one place, regardless of where you are. iCloud is easy to set up, whether it be on your desktop apple computer, notebook, iPad or iPhone, and only requires users to have an apple ID to merge the information.

Massachusetts Motor Vehicle Homicide Conviction overturned: Expert Testimony or Merely an Opinion?

September 1, 2016 | by Michael DelSignore

Expert testimony is critical in a Massachusetts Motor Vehicle Homicide prosecution. The issue of whether this testimony is admissible came up in the trial of Commonwealth v. Guinean, which was recently decided by the Massachusetts Court of Appeals.

Back in 2010, the defendant was found guilty of both OUI and motor vehicle homicide. On appeal, the defense lawyer claimed that a Superior Court judge abused his discretion in admitting expert testimony introduced by the Commonwealth. The expert testimony was in relation to the computer-assisted power steering mechanism within the defendant’s motor vehicle.

Conviction Overturned because Expert Testimony was Improperly Admitted

School Suspension in Massachusetts wrongfully imposed, student seeks recovery in court

August 31, 2016 | by Michael DelSignore

Regardless of whether or not criminal behavior takes place on school grounds, students may be susceptible to facing punishment a school opts to impose even if the charge has not be litigated to completion in court. For example, students charged with OUI and attending Mass Amherst will often be suspended for one year based on the charge even if the client is ultimately found not guilty after trial. A client of mine was suspended for one year for being charged with OUI even though a jury ultimately found him not guilty of driving under the influence of alcohol. This is based on UMass Amherst’s Code of conduct, which I have attached here.

In the case of Goodwin v. Lee Public Schools decided on August 23, 2016, the student, a public high school senior at the time, was suspended from school in December of 2011.

The suspension was based off of the understanding that student had been charged with a felony, when in fact, no charges had actually been filed at the time of her suspension.

Brendan Dassey released from Jail will Steven Avery’s Conviction also be overturned from Making of a Murderer

August 22, 2016 | by Michael DelSignore

The 10-part Netflix documentary series that has captured the nation and has made headlines over the past year has more recently taken a new turn. Steven Avery and his nephew Brendan Dassey, most famously known for being found guilty of the murder of Teresa Halbach, may have a second chance at freedom. Just this past week, Avery’s co defendant and nephew, had his case overturned by a federal judge in the state of Wisconsin. Avery’s current lawyer, Kathleen Zellner, is increasing her efforts in the hope to additionally free Avery, as she believes he is innocent of the crime.

What you should know:

Mr. Avery was first convicted of sexual assault back in 1985.

SJC rules that Aaron Hernandez’s lawyers must turn over cell phone

August 19, 2016 | by Michael DelSignore

In a decision that could impact Aaron Harnandez’s upcoming murder trial in February, the Massachusetts Supreme Judicial Court ruled today that his lawyers can be compelled to provide his phone to the Commonwealth pursuant to an anticipatory search warrant.

Interpreting the statute governing search warrants General Laws 276 Section 1, the SJC noted that the statute did not intend to shield from disclosure anything that a criminal defendant provides to a lawyer in all cases.

The Court noted that none of the parties made any claim that there was privileged communications on the cell phone. The judge found probable cause to believe that the cell phone would obtain evidence of criminal activity. The Court found without the search warrant issuing that the content of the phone could be lost or destroyed.

No Right to a lawyer prior to deciding to take a Breath Test

August 15, 2016 | by Michael DelSignore

When is a person being investigated of a crime entitled to a lawyer?

The determination of whether someone being accused of a crime is entitled to a lawyer depends on whether the court determine that the prosecution is at a critical stage in the process. The United States Supreme Court in a case called Kirby v. Illinois, ruled that the Sixth Amendment right to counsel does not attach until the state beings the adversarial process against an individual. The Court defined this as a formal charge, preliminary hearing, indictment or arraignment. The Massachusetts Supreme Judicial Court, interpreting Article 12 of our State Constitution declined to adopt a more expansive view of when the adversarial process beings. The Court found that because the decision whether to take a breath test arises before a formal complaint it issued, that there is no right to counsel under the Sixth Amendment.

The SJC stated that the decision whether to take or refusal a breath test is an important tactical decision, but that because this decision occurs at the evidence gathering stage it is not a critical stage in the process. The Court affirmed that its decision in Commonwealth v. Braelton is still good law despite the change to Massachusetts OUI laws with the per se offense.