If you get arrested in Massachusetts this holiday season. . .

. . . don’t do anything before you talk to a criminal defense lawyer. Don’t talk to the police, don’t try to explain, don’t make a quick plea just so you don’t have to go to court again. What may seem like fairly minor offenses, like DUI, domestic assault and battery or providing alcohol to a minor, may have serious consequences that you may not know about.

If your child has been charged with a crime, it may be even more important that you find qualified, experienced counsel for him or her. Criminal offenses can have an impact on student loan eligibility, college admission and job applications, among other things. A criminal charge today can follow your child for the rest of his or her life.

Massachusetts Exigent Circumstances exception to warrant requirement clarified, also “community caretaking”

In the recent case Commonwealth v. Kirschner the Massachusetts Court of Appeals clarifies the “exigent circumstances” exception to the 4th Amendment search warrant requirement (aka the “emergency” exception). The Court wrote that “the injury sought to be avoided must be immediate and serious, and the mere existence of a potentially harmful circumstance is not sufficient.” In this case, the police observed a burned marijuana roach on a porch table and numberous bottles of alcohol inside the kitchen of a house.

The judge concluded that the officers were entitled to enter the house under the emergency exception to the warrant requirement, reasoning that it would have been irresponsible to leave the house without clearing it of its occupants and securing it, and that the presence of illegal drugs and evidence of heavy drinking raised the possibility that one or more of the occupants was in medical distress.

We see this kind of crap all the time. The search occurred on the 4th of July, after the officers responded to a complaint of fire works being set off in the neighborhood. Here is what the Mass. App. Ct. had to say about the Judge’s conclusion:

We think, however, that where Kirschner had informed the police that everyone inside the house was an invited guest, the interior of the house was entirely dark and quiet, and there was no indication that anyone was in acute medical distress, the police had no reasonable basis to believe that there was imminent and serious danger to persons or property requiring immediate action.

The case also addresses the “circumnavigation” (the motion judge’s word) of the house by the police. In short, they say that the police can’t just walk through your back yard because there may have been naughty people back there sometime in the indeterminate past.

There is also a great footnote (no. 7) that blows away another of the motin judge’s justifications for this bogus search:

The judge also characterized the entry as an exercise of law enforcement’s “community caretaking” function, citing to cases in which police officers have been permitted to check on the well-being of parked motorists. . . . This line of cases is not apt, however. Absent a true emergency– involving imminent, serious danger–there is no justification for the warrantless entry into a residence to check on the persons inside.

The motion judge’s written decision denying the motion included the statement that the actions of the police officers “may trouble the Fourth Amendment”, but that they “do not offend it.” This type of arrogance is rarely put in writing, but I believe it is not rarely displayed by District Court Judges in Massachusetts. It is gratifying that the Appeals Court so clearly told the Motion Judge that his decision not only troubles the Fourth Amendment, but, without a doubt, offends it.

This case is going to go into my briefcase, and will go to court with me every day. though it is short, it has some very good language on warrantless searches of residences. I find the following particularly interesting:

A warrantless search for investigatory purposes is justified when “[p]robable cause and exigent circumstances … coalesce.” however, more than a minor crime must be involved to justify the warrantless intrusion into a private residence.

The opinion then cites cases that held unjustifid 1) police entering the home of a suspected drunk dirver who recently caused an accident, and 2) entry into an apartment on a complaint that loud music was being played. So not just any old crime will get the police into a house. It has to be serious. Seems that disturbing the peace and even drunk driving are not serious enough.

Kirschner is a clear message to the trial courts to take the 4th Amendment seriously. It is the message that we defense lawyers have been delivering consistently. Hopefully, this one will be heard.

Massachusetts OUI license suspension trap

People charged with a second or subsequent OUI in Massachusetts face steeply increasing penalties. Some lawyers in Massachusetts tout to potential clients their ability to obtain pleas to a first offense for those charged with a second, or to a second offense for those charged with a third. While that may be entirely possible and such an outcome may be the product of good negotiation and litigation, many clients are not told that such a success may not translate into a shorter license suspension.

When a person is convicted of, pleads guilty to or admits to sufficient facts for an OUI, that conviction is reported to the Registry of Motor Vehicles. Regardless of the penalty imposed by the court, the Registry will impose its own suspension. Whether the court calls it a first offense or a third, the Registry will simply count the number of convictions, in Massachusetts and in other states, and impose the suspension that corresponds to that number offense.

For example, a woman I spoke with recently was charged with an OUI in Essex County. She had plead guilty to an OUI twenty three years earlier. She met with a lawyer who told her he could get her a plea to a first offense, which in Massachusetts brings a forty-five day license suspension, and eligibility for a hardship license in three days. However, he did not know that the Registry would impose a second-offense suspension, which is two years.

Furthermore, while he told her that the first offense conviction would only require that she attend a driver safety program once weekly for sixteen weeks (which is true), he did not know that when she became eligible to get her license reinstated after the two year Registry suspension, the Registry would only reinstate her license if she had completed the program for second offenders. The second-offender program is a fourteen day inpatient stay at a state hospital, and extensive follow-up aftercare. It is a much greater hardship and much more intrusive into someone’s life than the first-offender program, and if one goes to get reinstated after two years and then finds out that they have to do the tow weeks inpatient and the six months or more of aftercare, he or she will not be happy.

Enough said.

Myspace as an investigative tool

I am becoming more and more concerned about young people incriminating themselves on Myspace.  I have had several young clients who have posted material on their Myspace pages that led to probation violations or impeachment material.  However, the silver lining for criminal defense lawyers is the investigatory potential of the site.  As Skelly at Arbitrary and Capricious and Sanchovilla at Tales of a Public Defender Investigator point out, there are a lot of people posting a lot of things on these sites that can be helpful to us. 

Myspace and other blogs can be searched using Google or Technorati or, best of all I think, Icerocket. It takes some creativity and perseverance, but you might be surprised at how many witnesses and alleged victims leave damaging information or photos out there.  

Federal Sentencing Guideline Seminar in Miami

Long Island (Criminal) Trial Law Blog has interesting notes from the annual Federal Sentencing Guideline Seminar here, here, here, and here. I couldn't go, but these notes are helpful.

Return. . .

I haven't written in about three weeks; work will do that, I guess. Te ease back into it: The First Circuit Federal Defendaer Blog has summaries of all CA1 criminal cases for May here.

Police Misconduct; It’s the attitude, stupid

Please read this. It is a story about Baltimore Police officers abusing and falsely arresting a married couple who stopped to ask for directions. At worst, they may have rolled through a stop sign, and they wound up cuffed, arrested, and locked up for the night. Seriously. Please believe it. Don't say to yourself, "These people probably were obnoxious, or drunk, or offensive, because police officers would never act this way." Some police officers do act this way. Some think this way. Unfortunately, most people don't want to believe it. Certainly prosecutors don't believe it, and most judges cannot conceive of a police officer doing wrong. The same goes for politicians, and most of the media.

I'm not a bomb-throwing anarchist who hates the police. However, I have witnessed enough times an officer lying under oath, or abusing a citizen in some way knowing he can get away with it, that when I see a story like this one in the media, I pray that people are paying attention. I've been in court picking a jury when a prosepective juror tells the judge and attorneys that he would not believe that a police officer would ever lie. As a professional, I have to turn to the judge and say "strike for cause, your honor." What I want to do is turn to the prospective juror and say "Are you a complete fucking idiot, or are you just trying to get out of here before lunch?"

We are taught as children that the police are our friends. I wish that were always true. I know that what is true is that they are people, and within the law enforcement population one will find the same personality defects, neuroses, mental illnesses, addictions, bullies, cowards, and ignorance, that one will find in the population in general. Why is that difficult for many to accept? Some police officers are courageous, morally unimpeachable, and humble. Some are criminals. There is a lot of room in between for all the human frailties and shortcomings, in varying degrees, that lead a person to bully, lie, cheat, or steal.

Breath Machine Articles by Lawrence Taylor

If, like me, you defend people against drunk driving charges, you will appreciate this collection of posts about the "breathalyzer", the popular name for all types of breath machines, by Lawrence Taylor. Taylor is an acknowledged expert in OUI/DUI defense.  He is the author of Drunk Driving Defense, now in its 6th edition, a volume in my library that I  refer to often.  Read Taylor's posts to understand the shortcomings of breath machines, and how to attack them at trial.

Important Confrontation Clause cases pending in Scotus; Crawford to be clarified?

Keep your eyes open for decisions in two cases from the Untied States Supreme Court that should have an impact on practice in Massachusetts.  As noted by Capital Defense Weekly, two Sixth Amendment cases are awaiting decision, Davis v. Washington and Hammon v. Indiana. Both of these cases present issues related to Crawford v. Washington, which most of us hoped would put an end to the creative theories that Courts were usisng to admit hearsay testimony against criminal defendants. Crawford held that the Sixth Amendment means what it says, that a defendant has the right to confront the witnesses against him; more specifically, if a statement is "testimonial" in nature, it cannot be used in evidence unless the person who uttered it testifies about it (with narrow exceptions). Justice Scalia, however, left the door open by saving "for another day" the question of what "testimonial" means. Davis and Hammon may help answer that question.

Davis involves a call to a 911 operator, in which a woman identified the man who beat her as Adrian Davis. The woman did not testify at trial, but the judge allowed the 911 call to be entered into evidence against Davis, who was convicted. In Hammon, a witness told a police officer about a stabbing she had witnessed. Though she did not testify, the content of her statemet was admitted against Hammon, who was also convicted.

Scalia wrote in Crawford:

Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law–as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of “testimonial." Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.

Davis and Hammon provide the opportunity for the Court to more clearly define the term "testimonial".  Justice Theodore Boehm of the Indiana Supreme Court wrote in Hammon's case that he agreed with the trial court that Amy Hammon’s statement to the police was non-testimonial, since it was given during a “preliminary investigation.”  Is this different from police interrogation? The 911 call in Davis was actually a second call; the first 911 call was a hang-up before the operator answered.  The operator called back, and that is when the statments that eventually were admitted were made.  How far is this from investigation?  Yes, the 911 operator is primarily an emergency response source for the community.  But when the operator calls back and asks questions, knowing that the call was taped, it also serves as an information-gathering tool, an aid to investigation.

The Crawford decision discussed various definitions of the term "testimonial".  While it is dicta, one can hope that the Court will adopt something similar as a definition: 

Various formulations of this core class of “testimonial” statements exist: “ex parte in-court testimony or its functional equivalent–that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,” Brief for Petitioner 23; “extrajudicial statements … contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,” White v. Illinois, 502 U.S. 346, 365 (1992) (Thomas, J., joined by Scalia, J., concurring in part and concurring in judgment); “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,” Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 3. These formulations all share a common nucleus and then define the Clause’s coverage at various levels of abstraction around it. Regardless of the precise articulation, some statements qualify under any definition–for example, ex parte testimony at a preliminary hearing.

Comm. v. Matis and discovery of evidence in possession of third parties

The Supreme Judicial Court today issued its ruling in Commonwealth v. Matis, an interlocutory appeal regarding discovery of evidence in the possession of a third party. In short, Matis wanted his investigator to go into the juvenile alleged victim's house, where she claimed a rape had occurred, and take measurements, photographs, and make observations. The alleged victim's family didn't want him in the house. The judge allowed a motion for an order granting access to the house. The order was ultimately vacated because the homeowners had not been given notice of the hearing, and the case was remanded.

The opinion includes a nice explaination of the new Rule 14 regarding discovery, and Rule 17 regarding compelling evidence and witnesses. I am still troubled by the Court's continued assertion that Rule 17, as construed by Commonwealth v. Lampron, "is not a discovery tool." Lampron and its progeny talk about "fishing expeditions" and other unsavory practices by defendants. This is troubling, because the Commonwealth has the power of administrative subpoenas and other investigative resources not available to the defendant.

Under Lampron, the defendant must show that the material he is seeking to obtain under rule 17 "(1) . . . is evidentiary and relevant, (2) that it is not otherwise accessible in advance of trial by exercise of due diligence, (3) that he cannot properly prepare for trial without access, and the failure to obtain advance access may tend unreasonably to delay the trial, and (4) that the motion is made in good faith and is not intended as a general "fishing expedition."

The problem, of course, is that the defense attorney usually can not make such showings until he has seen the materials he is seeking. Employment records, school records and other sources of potentially valuable information about a witness are out of a defendant's reach unless he can say exactly what is in the records, before he has seen them.

Matis suggests a possible alternative to Rule 17 and Lampron. The Court writes,

In addition, rule 14(a)(2) provides that after receiving all of the discovery it is due from the prosecutor, the defense may move for the discovery of additional "material and relevant evidence," "without the limitation that it be in the possession, custody, or control of the prosecutor or other specified individuals."

It is not clear whether a defendant must show exactly what "material and relevant" evidence he is after, or if he may show that there may be material and relevant evidence in the materials he seeks. The Reporter's Notes to Rule 14 state:

Such a motion may only be made for discovery of material and relevant evidence that is not encompassed by the automatic discovery provisions; . . .

Since Rule 17 is about compelling production of known items and is not a discovery tool, Rule 14, entiteld "Pretrial Discovery", should be about finding out what is out there that may be material and relevant. When a defendant moves for discovery from the Commonwealth, he has to convince the judge that he is either entitled to the materials requested, or that the category of materials sought is likely to include something material and relevant. The whole point of asking for "discovery" is that you don't know for sure what is there.

The analysis and argument should be the same for discovery of materials in the possession of thired parties. So, if the defense wants to see what is in a witness's employment records, Matis seems to say that he should move for an order under Rule 14(a)(2) to compel production by the employer.