Articles Posted in Trial Practice

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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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.

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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Good afternoon. I’m Boston criminal defense attorney Ben Urbelis, and I am going to be doing a video blog, providing updates on the Aaron Hernandez first-degree murder trial that’s currently underway. I’ve already received a lot of questions from people about different aspects of the trial that just started yesterday, so I’m here to break it down and simplify it as much as possible and also provide my own take on what I’ve seen.

Yesterday, both sides provided opening statements. Opening statements are not evidence, and the judge explained that to the jury. Opening statements are a chance for each side to provide a roadmap and lay out what their theory of the case is and what they expect the evidence to show. In all criminal cases the burden of proof beyond a reasonable doubt is on the prosecution, and since they have the burden, the prosecution is required to provide an opening statement first.

The opening statement for the prosecution was provided by Assistant District Attorney (ADA) Patrick Bomberg. He started out by painting a picture of Odin Lloyd as a hard-working family man from Boston. This is nothing unique – the prosecution, of course, wants the jury to feel as much sympathy for the victim and his family as possible. What I was looking for from the beginning, however, was a theme or theory of the case. Not only did I not see that at the beginning of the prosecution’s opening, but I didn’t see it anywhere in their entire opening statement. ADA Bomberg went from talking about Odin Lloyd as a person, to jumping into text messages between Odin and Aaron Hernandez, to talking about the other people who were allegedly present at the crime scene on the night in question, to getting straight into all of the facts that the prosecution intended to prove, along with the evidence they would intend to show the jury in the form of forensics, cell phone records, video surveillance, receipts, GPS tracking of the defendants vehicle, etc.

It was clear that ADA Bomberg had a strong grasp on all of the evidence that he would intend to show the jury during the course of the trial, down to the very last minute. He had a very strong command of the defendant’s every move both before he allegedly committed the murder and after he allegedly covered it up. Based upon the prosecutors opening statement, we can expect this trial to be filled with significant, detailed circumstantial evidence.

Now I’ve heard people say that the evidence is so strong, therefore it’s direct evidence. The strongest evidence is not necessarily direct evidence. Let me give you an example. One morning you’re lying in bed and your six-year-old daughter runs up the stairs and hands you the newspaper and says ‘mommy or daddy here’s the paper that I know you want to read, the paper boy just came to the door and handed me this newspaper to give to you.’ Your daughter’s statement that the paperboy handed her that newspaper is direct evidence that the paperboy delivered a newspaper. She saw him, he handed her the paper, she brought it to you and told you that’s what happened. Now let’s say you walk downstairs in the morning, go to the front door, walk out go to your mailbox, and there’s a newspaper there in the mailbox waiting for you. That is circumstantial evidence that the paperboy delivered the paper to your house. It’s not direct evidence because no one specifically saw or heard the paperboy come and deliver the paper. But based upon the fact that you know your paper boy delivers the paper every morning before you get up, and when you went out this particular morning there was a paper in the mailbox, you can come to the reasonable conclusion, based upon the circumstantial evidence, that the paperboy delivered your newspaper that morning.
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