As just about every Massachusetts resident with a pulse is now aware, the voters decided on November 8th to “legalize” marijuana possession in the Commonwealth. Well, kind of. I intentionally used quotation marks because there are significant caveats to the new act under M.G.L. c. 94G of which most people are unaware and thus many pot smokers will unknowingly violate. The most important fact is that the Controlled Substances Act, long- governed by M.G.L. c. 94C, is still in full effect. The new Act passed last month merely provides certain “personal use” exceptions for adults, both decriminalizing previously illegal conduct, and in some cases fully LEGALIZING other previously illegal conduct.
I have written this blog to highlight what I believe to be the most relevant and important points of the new law for the general public to know at this time. This blog in no way constitutes legal advice or an attorney- client relationship. If you have specific questions or personal issues, you should contact your own criminal defense attorney.
Our client is a 53- year old East Boston man with no prior record. In February of 2016, he was walking home from work in Chelsea. An acquaintance, also Hispanic, drove by and offered our client a ride home. There was one other Hispanic male in the car at the time. Within minutes, the car was pulled over and approached by three Chelsea police officers for failure to come to a complete stop at a stop sign. After the men were ordered out of the car, a search revealed a bag in the closed center console with a substance the officers believed to be heroin (which it was not; read below). Despite the fact that our client never made any statements, movements, or anything else suggesting his knowledge of, or intent to control, the substance in the center console of the acquaintance’s car, and despite the fact that the police never conducted a preliminary swipe to test whether the substance contained narcotics, all three men were arrested and charged with trafficking heroin.
At the station, despite the fact that our client was cooperative, a search of his clothing revealed no illegal products, and he did nothing to suggest he had any narcotics or other contraband otherwise on him, the police conducted a full strip search of our client where he was subjected to standing completely naked in the station while police searched his private areas. Again, nothing was recovered. Our client was held overnight at the station. He then hired our firm, his bail lowered at court the following morning, and he was released. By then, the case had already hit the newspapers.
Several weeks later, after the substance believed to be heroin was tested by the state laboratory, it turned out that there was no heroin or any other narcotic in the bag; it was a substance found in workout supplements. We were able to have the criminal case dismissed, but by then our client had already undergone significant emotional, psychological, and financial damages (attorneys’ fees for the case) related to all of the unlawful actions of these Chelsea Police officers. He was also threatened in his own community; when people learned that his heroin trafficking case had been dismissed, members of the drug trade suspected him to be a “snitch” who had likely become an informant in exchange for having his major felony case dropped.
Expertise.com looked at 289 OUI (Operating Under the Influence) lawyers in Boston and hand selected Urbelis Law as one of the very best. The goal of expertise.com is to connect people with the best local experts. They analyzed and scored Boston DUI attorneys on 25 variables across 6 categories, including reputation, credibility and experience. Urbelis Law ranked in the top 20 out of nearly 300 Boston lawyers. Our firm takes tremendous pride in the work that we do and always provides zealous advocacy tailored to each individual client.
The Massachusetts Court of Appeals recently reaffirmed in Commonwealth v. Stampley, 88 Mass. App. Ct. 1118 (2015) that the possession of even several baggies of marijuana without additional evidence of distribution is not sufficient to convict a defendant of possession with intent to distribute. As background, in 2008 Massachusetts voters passed a ballot decriminalizing the possession of small amounts of marijuana. The law went into effect in 2009. Before 2009, possession of any amount of marijuana was a criminal offense with offenders facing up to 6 months in jail. It should be noted that possessing more than one ounce of marijuana is still a crime, as well as distribution (dealing) of any amount and possessing any amount with the intent to distribute it.
In Commonwealth v. Stampley, a police officer approached two teenagers who were smoking a blunt. The two teens became nervous and fidgety and gave the officer false names. 17 individual, quarter-sized plastic baggies of marijuana were retrieved from the teens. The defendant had nothing else in his possession to indicate that he was involved in the drug trade. Continue reading
As background, the case began when a woman, Jaime Caetano, was given a stun gun by a friend to protect herself against an abusive ex-boyfriend and the father of her children. It is important to note that Ms. Caetano obtained multiple restraining orders against her ex-boyfriend that all proved futile. One night after work, Ms. Caetano’s ex waited outside her work place, confronted her, and began screaming harassing statements towards her. Ms. Caetano pulled out her stun gun and threatened to use it. The ex-boyfriend backed off and left. At a later date, Ms. Caetano was suspected of shoplifting. She consented to have her purse searched, and police officers found the stun gun in her bag. She was arrested, charged, and eventually found guilty of “possessing an electrical weapon” aka the stun gun. She appealed to the SJC on Second Amendment grounds. The SJC rejected her claim. Continue reading
The Massachusetts legislature has recently adopted a definition of controlled substances that includes “controlled substance analogues,” or what is commonly known as “designer drugs.” The Massachusetts law is modeled on a similar Federal law that has already been put into place. This added definition would make criminalize analogues in the same way that the named controlled substances are criminalized, such as possession of the substance or distribution of the substance.
A controlled substance analogue is a substance that is similar in chemical structure and psychological effect to an existing controlled substance but has not yet been listed as a controlled substance. So in the statute, the analogues are not specifically listed by any name but are generally defined as a substance “substantially similar” to other controlled substances already listed.
The way the statute is written, a two-prong test is created for proving an analogue. First, the analogue (or “designer drug”) must be structurally similar to a controlled substance. “Structurally similar” essentially means that its chemistry must be very closely related. The second prong can be proven in one of two ways. One, the analogue causes a substantially similar or greater effect on the user as the named controlled substance. Or two, the analogue was represented to have or intended to have a similar effect on the user as the named controlled substance.
This addition to the controlled substance statute will cause a whole host of problems for police, prosecutors, defense attorneys, and most importantly, defendants.
One problem is how do you prove that an analogue has a “structurally similar” makeup to a named controlled substance? (And a whole separate problem is what named controlled substance will the analogue be tested against since there are numerous possibilities?) This is obviously going to require an expert in chemistry to test how similar the alleged analogue and the named controlled substance are. This will be a time-consuming and costly process for both the government and defendants. The need for an expert puts defendants who cannot afford to pay in a highly disadvantaged position when up against a big government budget. Since there is no scientific definition for what “substantially similar” means, the case could come down to one expert’s opinion versus another expert’s opinion. What method of testing the expert(s) utilize is also a problematic area with no right or wrong answer right now. Continue reading
We are not even halfway through 2015, but Urbelis Law has already had a very busy, and productive year with great results for our clients! Below is a list of cases that resolved very favorably for our clients since January 1st of 2015. We look forward to continuing to achieve such results for the remainder of the year and beyond!
FEDERAL CHARGES: Client was a middle school teacher with the 3 lead charges of the indictment carrying a MANDATORY MINIMUM sentence of 15 years in federal prison, each. There is no parole in federal cases. Client was also charged with two lesser included offenses as well.
Let me be clear that Judge Garsh’s ruling in December and her ruling Monday are different issues, although they seem very similar. The issue in December was whether the text messages could be shown to the jury as documentary evidence. This requires that the evidence be “authenticated,” which means that the evidence’s proponent must prove that the evidence is what it claims to be. For example, the text messages could be authenticated by Thibou testifying that the messages on her cell phone screen are in fact the messages she exchanged with Lloyd the morning he was killed. The ruling today was that Thibou could orally reference the text messages in her testimony – the text messages will still not be physically shown to the jury.
Judge Garsh limited the purpose for which the text messages could be brought in. Thibou is allowed to reference that she and her brother had been in contact the night of his murder, and that text messages were exchanged between them for the purpose of corroborating phone records that have been already been brought in during this trial. I’m assuming the phone records are just a printed out time stamp showing that between 3:00am – 3:30am text messages were exchanged between Thibou’s cell phone number and her brother’s cell phone number. The content of those messages cannot be referenced. The content is hearsay. Thibou’s emotional reaction to those text messages also cannot be referenced by her when she is on the stand. Continue reading
I found myself questioning why the prosecution decided to kick off their case with this particular witness. You see, each side can call its own witnesses in any order it chooses, and there’s always a strategy in determining that order. As I explained before, I found ADA Bomberg’s opening statement to lack a clear narrative, or story, that the prosecution would intend to tell, particularly without putting forth their theory on motive. I’m curious to see if they will have the same lack of structure and clarity in their case-in-chief as in ADA Bomberg’s opening statement. Without a clear roadmap, or outline, in that opening it’s tough to tell exactly what to expect.
So, Lorne Giroux took the stand first, and really just testified that the victim, Odin Lloyd, worked for him, was a reliable worker, and unexpectedly did not show up for work on the morning of Monday, June 18th. Mr. Giroux texted Odin Lloyd, but got no response. After Lloyd did not show up for work that Tuesday morning either, Mr. Giroux again texted Odin Lloyd. After receiving no response, he was later contacted by the authorities and informed that Mr. Lloyd was dead.
It looks like the prosecution perhaps called this witness in order to show that Mr. Lloyd was a reliable worker and probably would not have been looking to find an after party at 2:30 in the morning with Aaron Hernandez if he had to work just a few hours later. Other than that, I didn’t find Mr. Giroux to be a significant witness and apparently neither did defense attorney Charlie Rankin.
In any trial, when the prosecution offers a witness, the defense has an infinite number of tactical decisions to make. Did this witness hurt us – or more specifically did he disturb OUR theory of the case? If so, how do we handle it? How can we pick at what this witness just offered? Is this a witness we should attack fiercely, or should we just show that perhaps he was mistaken, or that his first hand observations could mean something else? What tone should we take with this particular witness in order to best demonstrate to the jury how WE value or feel about him and his testimony? Continue reading
Let’s break down what happened in the video. Public Defender Jami Tillotson was in court when a police investigator attempted to photograph her client and a co-defendant in the hallway. Tillotson steps in and attempts to prevent the investigator from taking photos of her client. She is then arrested by the plain-clothes police investigator for resisting arrest.
You may be wondering how Tillotson can be arrested for resisting arrest if she was not being arrested prior to the actual arrest caught on film. Although I am not familiar with California law and do not practice there, from what I can gather from news articles about this incident, it seems that California law on resisting arrest is broad and encompasses interfering with a police investigation, which according to the San Francisco police, Tillotson was. In Massachusetts, the law is narrower.
Tilloston later stated that she was simply talking to her client and explaining to him his rights, at which point she was told she was interfering and then arrested. At a press conference, another public defender with the San Francisco Office, Jeff Adachi, said, “This is not Guantanamo Bay. You have an absolute right to have a lawyer with you when you’re questioned. Ms. Tillotson was simply doing her job.” Continue reading