Articles Posted in Criminal Justice policy

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

Massachusetts’s ban on the possession of stun guns has been ruled unconstitutional by the Supreme Court as a violation of the Second Amendment’s right to bear arms. In 2015, the Supreme Judicial Court of Massachusetts (“SJC”) upheld the constitutionality of Massachusetts’s prohibition on the possession of stun guns (Jaime Caetano v. Massachusetts, 470 Mass. 774 (2015)). This year, the Supreme Court of the United States (“SCOTUS”) overturned this decision finding the categorical prohibition inconsistent with SCOTUS precedent. (Jaime Caetano v. Massachusetts, 577 U.S. ____ (2016)).

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.
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In a former blog post, I blogged about how in December the Bristol County Superior Court judge in Aaron Hernandez’s first-degree murder trial ruled that the text messages exchanged between Odin Lloyd and his sister, Shaquilla Thibou, minutes before he was killed cannot be shown to the jury as evidence. Last Friday, February 20th, Judge Garsh ruled that Thibou could not mention the text messages at all if the Commonwealth called her as a witness. Over the weekend, however, Judge Garsh had “given more thought” to the issue and decided Monday, February 23rd, that the text messages could be mentioned to corroborate phone records showing that Lloyd and Thibou had been in contact those early morning hours of Lloyd’s death.

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.
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A criminal defense attorney was arrested for resisting arrest in the hallway of the courthouse where she has worked for the past 18 years. Jami Tillotson, a Deputy Public Defender for the San Franciso Public Defender’s office was arrested this week right outside the courtroom as she was trying to defend the rights of her client. Other attorneys with the public defender’s office filmed the whole thing, and the Office put it on YouTube with subtitles.

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.”
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This week, Massachusetts highest court – the Supreme Judicial Court – exercised its power in Commonwealth v. Russell to require a uniform instruction on “proof beyond a reasonable doubt.” In a criminal case, the Constitution requires the government to prove the defendant’s guilt beyond a reasonable doubt. At the end of a trial, before a jury deliberates whether the defendant is “guilty” or “not guilty,” the judge reads to the jury “jury instructions,” which are a set of legal rules the jury must follow when deciding the case. One of the instructions is the explanation of what it means to find an accused guilty beyond a reasonable doubt.

During the past century, there have been two main jury instructions on reasonable doubt given: one is called the “Webster charge” and the other is called “Instruction 21.” There are varying versions of the two instructions, but the instructions usually stem from one or the other or both.

The Webster version originated in 1850, in Commonwealth v. Webster, and informs the jury that reasonable doubt exists when “they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.” For over a hundred and fifty years this has been the “gold standard” of reasonable doubt jury instructions. There has been criticism of this version for being a bit outdated and unclear with its “moral certainty” language. “Instruction 21” originated in 1998 in the Federal Judicial Center’s Pattern Criminal Jury Instructions and informs the jury that “[p]roof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt.”

Before Russell, there were no particular words a Massachusetts judge had to use when giving a jury instruction on reasonable doubt – as long as the jury instruction satisfied constitutional due process. The lower trial court judge in Russell used a jury instruction that was closer to Instruction 21 than to the Webster charge, which permitted a conviction if the jury was “firmly convinced” of the Defendant’s guilt. The Defendant appealed, and his criminal defense attorney argued that this instruction was not adequate and violated his Constitutional rights.
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Last week, a former Middlesex County, Massachusetts prosecutor has been indicted after allegedly supplying his drug dealer with confidential information in exchange for prescription ocycodone pills. Stephen M. Gilpatric, 35, served as a Middlesex assistant district attorney for 7 years, until this past October when the Attorney General’s Office began investigating his conduct. Ironically, Gilpatric’s most recent work was on public corruption, white-collar crime and major narcotic cases.

Gilpatric allegedly gave his drug dealer personal information about another man – including his probation record, police report, and a photograph – in exchange for oxycodone pills. He also provided the drug dealer and the drug dealer’s brother a confidential drug ring organizational chart and a criminal record in anticipation of receiving more oxycodone pills. Oxycodone is a prescription drug prescribed to treat moderate to severe pain, oftentimes after surgery. Oxycodone is an opiate, like heroin, and can be highly addictive. It is commonly known by the commercial name Oxycontin or the street name “oxycotton.”

Gilpatric is also accused of taking $1,500 from a mother who wanted her son’s commercial driver’s license reinstated after it had been revoked in a criminal case. Gilpatric was indicted by a Statewide Grand Jury on the following charges: unlawful gratuity, unlawfully communicating criminal offender record information and receiving unlawful compensation. Unlawful gratuity and receiving unlawful compensation hold a maximum prison sentence of 5 years each, and unlawfully communicating criminal offender record information holds a maximum jail sentence of one year.
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Massachusetts Rules of Evidence are very important when it comes to winning a criminal trial. On Friday, December 19th, Superior Court Judge Garsh ruled that text messages sent from Odin Lloyd minutes before he was shot and killed cannot be shown to the jury during New England Patriot Aaron Hernandez’s first-degree murder trial.

The text messages were sent from Lloyd right before his death to his sister: “U saw who I was with … NFL … Just so U know.” These text messages are hearsay and generally inadmissible as evidence (explained below). The prosecution wished to present these text messages as evidence that Lloyd knew he was about to die and who was going to kill him. A “dying declaration” is an exception to the ban on hearsay (explained below). The prosecution’s theory is that Hernandez killed Lloyd because he knew too much about a 2012 double-murder that Hernandez has recently been charged with as well. Judge Garsh, however, ruled that the messages did not suggest Lloyd feared for his life, there was no credible basis for linking Lloyd’s killing with the double-murder, and the prosecution’s argument was speculative. The defense considers this a huge victory.

Rules of evidence govern whether and for what purpose proof of a legal case may be placed before a trier of fact (usually a jury) for consideration.

1- Hearsay
In general, hearsay is not admissible as evidence. Hearsay is an out-of-court statement introduced to prove the truth of the matter stated. To put it more simply, hearsay is the report of another person by a witness. Hearsay is generally not allowed to be introduced as evidence because it is unreliable. Think of the “telephone game” you played as a kid. The first person says something and by the end of the game the person’s words are totally different. That’s the reason hearsay is generally inadmissible. There are many exceptions to the hearsay rule where the out-of-court statement can be introduced as evidence. The exceptions have been created because certain out-of-court statements are usually more reliable. One of them is called a “dying declaration.”
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Yesterday, Ross Currier, a Boston man, was cleared of sexual assault charges in the North End. Suffolk County prosecutors entered a nolle prosequi, which resulted in the termination of the charges of assault and battery, which carries a maximum penalty of 2 years in the House of Corrections, and indecent assault and battery, which carries a maximum penalty of 5 years in the House of Corrections, that Currier had been facing stemming from an incident that occurred on February 15, 2014.

On February 15, 2014, a woman told police that she was approached from behind earlier that morning outside her North End apartment by a man who then threw her to the ground, groped her body and private areas, and took a picture under her skirt with his cellphone. Police arrested Currier on March 10 after the same woman saw him in the neighborhood and told police officers that she was “90 to 95% positive” that he was the man who attacked her. Not only did Currier have an alibi, stating that he was at home with his fiancee at the time of the woman’s attack, but the same woman had already previously misidentified another man as her attacker. The other man was incarcerated at the time of the attack and could not have possibly committed the crime.

District Attorney Daniel F. Conley’s office said in a statement Wednesday that while prosecutors do believe the woman acted in good faith when she identified Currier, investigators later “developed evidence to suggest he was not the assailant.” That evidence included a detailed review of Currier’s alibi, a forensic investigation of his cellphone and an investigation of related cell tower location records.

The Massachusetts legislature will be reviewing new possible gun legislation in the upcoming session. Many suggestions are being made as to how to approach gun regulation while simultaneously decreasing gun crimes in the Commonwealth. One suggestion is for Massachusetts to pass laws that keep illegal guns out of the hands of criminals.

Generally, legally owned guns are less likely to be used to commit crimes than illegally owned guns. In most instances, when legally owned guns are used against a person, it is a case of self defense, defense of a third party, defense of property, domestic violence, or suicide. Because most criminals are using illegally obtained guns to commit crimes, it is important that the Massachusetts legislature do something to stop criminals from acquiring and carrying these illegal firearms.

One specific suggestion made is that the Commonwealth pass certain legislation requiring that anyone over the age of 16 who is discovered to be in possession of an illegal firearm be prosecuted in an adult gun court. Those offenders under the age of 16 would be prosecuted in a juvenile level gun court. The gun court would not only have the authority to charge, but also try, and sentence for the possession of the illegal firearm and/or ammunition. If convicted, it is suggested that there be a mandatory minimum incarceration for first time adult offenders, and a mandatory rehabilitation program for first time juvenile offenders.