You may be outraged, too.  If you are watching Nancy Grace right now, you may be agreeing with her that the “story” told by the defense was not plausible.  You may be wondering along with Grace, “where is the retribution for Little Caylee? Where is the justice?” You may have followed the trial on the cable networks, and listened to the myriad lawyers, jury consultants, psychologists, and former “law enforcement” personnel who shared their “expertise.”

You may agree with Casey Anthony’s former fiancee who is on TV right now saying that he is disgusted by the defense team in this case, because for them, “it was never about a search for the truth, it was about win at all costs.”

If you are doing any of these things, you are far from alone.  Sadly, the one lesson we can take away from this trial, the verdict, and the reaction to the verdict, is this:

Americans have absolutely no idea how their justice system works, or why it works the way it does.

They have no idea what “burden of proof” means. They have no idea that the rules of evidence allow some evidence to be presented to the jury and prohibit other evidence from being presented.  They have no idea what “beyond a reasonable doubt means.”  They have no idea that a jury is given instructions by the judge, very explicit and binding instructions, that tell them what must be proved to them in order to find a defendant guilty, what they may consider as evidence, how they may consider it, what they may not consider, and under what circumstances they can not find a defendant guilty.

Americans have no idea about the duty of the defense lawyer.  They have no idea that it is his or her professional responsibility to zealously defend the client, that his or her only job is to defend that client as vigorously and thoroughly as he or she can. And they have no idea how important that job is.

They have no idea that the purpose of a trial is not to avenge the death of a victim, but to determine whether the government has enough evidence to hold someone responsible for that death.  So that if a defendant is found not guilty, it has nothing to do with dishonoring a victim, or a failure of retribution.

Americans think that, if they, sitting in their living rooms watching cable, believe that a defendant is guilty, then the only “just” outcome of a trial is a guilty verdict.  They think that if the government “loses” and a defendant is found not guilty, then justice has been denied.

Americans think that if a prosecutor calls something “science”, then it must be science.  They think that if “law enforcement” says that something happened a certain way, then it must have.  They think that if someone on cable tv says something, then it must be so.  Hell, they  think that if someone is on cable tv, then he or she must know what they are talking about.

Americans are outraged by a not guilty verdict in a trial in which the prosecution couldn’t meet its burden of proof.  Where is the outrage when a man is released from prison after serving 27 years for three rapes that dna testing has now proved he didn’t commit. How about for the hundreds of other people exonorated after serving unimaginable prison terms?  We don’t even notice those cases.

You didn’t sit through every minute of every day of the trial. You didn’t listen to the all-important jury instructions.  If you had, then you would be in a position to judge the verdict.  But you didn’t, and neither did I. So we have to respect the verdict, and understand that our system is a product of our Constitution, of the freedoms and rights we celebrate so loudly in our politics. If you respect the Constitution, respect the verdict.

The Supreme Judicial Court of Massachusetts ruled today in Commonwealth v. Parenteau (not Mark Parenteau, for those of us old enough to remember the heydays of WBCN) that a certification that a notice of suspension of a driver’s license was mailed to the driver is testimonial, and not simply a business record, and therefore not admissible against the driver in court absent a live witness to be cross-examined.

This means that someone from the registry has to testify that a particular notice was mailed to the address it shows, or at least that the practice of the registry is to mail out the notices to the addresses of record.  Because it is going to be nigh-on impossible for the Registry to provide people to testify that they saw a particular notice go into the mail, this means that for a while the Commonwealth is not going to be able to prove these cases.

The Court did tell the Registry how to fix the situation, though:

We agree with the Commonwealth that the actual notice of the defendant’s license revocation, . . . constitutes a business record of the registry, created and kept in the ordinary course of its affairs. However, there is no evidence of the existence of a contemporaneous business record showing that the notice was mailed on that date. If such a record had been created at the time the notice was mailed and preserved by the registry as part of the administration of its regular business affairs, then it would have been admissible at trial. That would have been the correct procedure for the admission of a business record from the registry.

So the registry will have to start creating contemporaneous records of mailing of the notices, and those will become business records, I guess.  Of course, the only reason to keep those contemporaneous records is for future litigation, so they aren’t really business records, in my opinion, but that is a case for another day.

For now, it looks like people with charges of Operating After Suspension will be going to trial.

N.B.:  Defendants charged with Operating After Suspension for OUI might run into a different problem.  The dockets of their OUI cases, and if they plead, the green plea sheets, will in most cases indicate a license suspension and its duration.  I expect that courts will allow that type of evidence to satisfy the notice element in those cases.

The interesting twist, though, is those cases in which, for example, a defendant who has two prior OUI convictions is convicted of OUI Second Offense, because the Commonwealth wasn’t able to prove both of his priors.  His docket and green sheet will most likely show a two year loss of license, even thought the Registry will impose an eight year suspension, because its suspensions are determined by the number of priors in the Registry records, not necessarily the Courts’ sentence.

If that person is arrested three years after his conviction on OUI 2nd and is charged with driving while suspended for OUI, it may be impossible to convict him as the only evidence of notice of the Registry’s eight year suspension is their certification that it was sent, which is now inadmissible.

As with other criminal offenses, the notice element of OAS may be proven by circumstantial evidence in some cases, I suppose, but this ruling throws a big wrench in the prosecution of these cases, at least until the Registry institutes a fix.

I bet the arraignment was interesting, as he was wheeled into court and the charge of assaulting a police officer and resisting arrest were read out.

I wonder what the police report says?  I would be willing to bet that in the report the guy in the wheelchair brandished some object, like a pipe or a knife, or ran the cops down with the chair.

Glad the brave officers are safe, though. . .

Here is how the Washington Post describes the vidoeo:

The video begins with the man in the chair, two officers alongside. A few seconds later, all three have pitched forward and are prone. Still later, the officers are standing while the man remains on the ground, with off-camera voices appearing to express dismay.

Wait, what?

The Post continues:

Metro issued a statement Sunday saying that the man, whom police have not identified, had resisted arrest, “which resulted in him falling out of his wheelchair.”

In the statement, Metro said transit police on routine patrol at the U Street Metrorail station in Northwest Washington on Thursday spotted the man in a wheelchair “drinking an alcoholic beverage.”

When asked to leave, the man refused, Metro said. The officers tried to issue a citation, but he “refused to comply.” The officers then told him that he would be placed under arrest, and he resisted, the statement said.

It said he was arrested in connection with an assault on an officer and drinking in public. He was taken to a hospital with a minor injury, the statement said.

Actually, they threw him on the ground and opened up his scalp.  But what the hell.  Everyone who reads the story will believe that the brave cops were just cleaning up the streets, and that the crazy homeless guy was probably out of control.  No one will bother to watch the video after reading the article, because, hey, its in the paper, so, it must be true.

And the “reporter” who wrote the “story” hasn’t offended any of the cops he eats lunch with and who feed him inconsequential “tips” so he can write a story every day and go home and relax.

Remember this the next time you read about an arrest in the newspaper or hear about it on TV.

Or forget about it, and go on about your day. Because it really doesn’t matter anyway, right?

Until it happens to you or someone in your family.

​According to the Dallas Observer:

At around 10:30 on the night of March 22, 1984, two young girls were on their way home from a store in their Dallas neighborhood when they were approached by a man with a gun. He told them to go with him into a nearby field. He said he would shoot them if they did not comply. He tied the two girls together, then raped them both before fleeing on foot. After the assault, the girls walked to a nearby house, where they called Dallas Police.

According to Dallas County District Attorney Craig Watkins’s office, they were then taken to a hospital, where both girls were given rape exams. A few days later, on April 4, both were shown police photo spreads. And both said the same thing: Johnny Pinchback was the man who raped them. He insisted he was innocent. And on October 5, 1984, a Dallas County jury found him guilty of aggravated sexual assault and sentenced Pinchback to 99 years in prison.

Yeah, 99 years.

And we now know that he didn’t do it.

But, its OK, because he only served 27 of those years.

Take some time out of your day to think about that.

Imagine Sergeant Tynan’s surprise when Kristian handed him a shiny new driver’s license from New Brunswick, Canada.  Sergeant Tynan wasn’t buying it.  Sergeant Tynan had personal prior knowledge that the defendant previously had possessed a Massachusetts driver’s license (that had expired). Sergeant Tynan inquired why Kristian did not have a Massachusetts driver’s license. Kristian replied that he planned on going to the registry of motor vehicles the next morning to obtain one. (Everyone who gets stopped by the police is going to the registry in the morning, or to get an inspection sticker in the morning.)

Tynan arrested Kristian for operating a motor vehicle without a license. Not such a big deal, and that in itself wouldn’t lead to a Supreme Judicial Court decision, specifically Commonwealth vs. Kristian A. Chown.

But of course there’s more. During the subsequent inventory search of his truck, the Barnstable Police recovered “drugs, cash, and other items.”  As a result, Kristian was indicted for trafficking in cocaine and possession of marijuana with intent to distribute.

Kristian’s lawyer, being on top of things, moved to suppress Kristian’s arrest and the search of his truck because, you know, he actually had a license.  The trial judge agreed, but the Appeals Court didn’t, and Kristian found himself in the SJC, arguing whether Sergeant Tynan had probable cause to believe that Kristian was a resident of Massachusetts, and therefore needed to have a Massachusetts license.

The Commonwealth argued that Sergeant Tynan properly arrested Kristian for driving without a Massachusetts license because, based on the facts then known to Sergeant Tynan, he had probable cause to believe that Kristian was really a Massachusetts resident, and was driving without a Massachusetts license.

The Court, though, saw it differently.  In a nutshell, they held that the legal determination of residency for purposes of motor vehicle violations (ch. 90) is way too complicated and fact-specific to be made by a cop at the side of the road.

Here, when Sergeant Tynan arrested the defendant, although he suspected that the defendant was a resident of Massachusetts for various reasons, he had not conducted an investigation into the matter or obtained any of the relevant determinative information under and pursuant to [the statute that tells them what to look for]. Consequently, Sergeant Tynan did not base his decision to arrest on information that was “definite and substantial,” Commonwealth v. Santaliz, supra, in the context of the confines of the statutory scheme, in particular, G.L. c. 90, § 3 1/2 [the one that tells them what to look for], and thus, did not possess the requisite probable cause to arrest the defendant for operating without a Massachusetts driver’s license.

So a license from another state, and,  maybe, another country [?], is actually meaningful in the Commonwealth.  Even if the cop that pulls someone over has lifted a pint or two with the driver, he can’t arrest him for not having a Massachusetts license unless he has very specific information.  That  is because, in the words of the SJC,

a legal determination of residency (for purposes of G.L. c. 90) involves some investigation and as a practical matter is not one that can be made in the field based on suspicions that do not correspond to the various residency factors enumerated in [that statute].

See the opinion for the statutory details, but remember this one because it will be important.  We know that because the first place to post the decision, after the official court website, is MASSCOPS.

They know that this case will make it harder for them to find an excuse to search the cars of “strangers”.

Mr. Cruz was the passenger in a car parked in front of a fire hydrant, which is not a good place to be if you are in possession of crack cocaine and there are cops in the neighborhood.  Sure enough, the police pulled up and began writing a ticket, when they smelled an odor of burnt marijuana.  They ordered the two men out of the car, and highjinks ensued.

Importantly, the police in this case didn’t just rely on the smell of marijuana, but also noted that the driver and passenger appeared nervous, something that judges like to use to justify exit orders and subsequent searches.  They were also in a “high-crime” area, another favorite basis for “reasonable suspicion.”

One of the cops, Officer Morgan, noticed that the driver was “very nervous, had trouble breathing” and “it almost looked like he was panicking.” When asked whether he had been smoking marijuana, the driver replied that he had smoked “earlier in the day.” Morgan asked the driver if there was anything inside the car that the officers “should know about.” The driver responded, “No.” Meanwhile, Morgan’s buddy, Officer Diaz, saw that the passenger appeared “nervous” and made little eye contact, choosing to look straight ahead or down. Neither cop saw any contraband or weapons within plain view in the car. Surprisingly,there was no evidence that either the driver or the defendant made any furtive gestures or threatening movements, because that is standard police-report fare in these cases.

Those of us who live in the real world understand that it is normal to feel nervous when stopped by a cruiser.  Ireland reminds us that it is supposed to be understood in the world of criminal court, also:

It is common, and not necessarily indicative of criminality, to appear nervous during even a mundane encounter with police, even though, as a passenger, the consequence of receiving a citation is not personal. Here, even though the defendant may have recognized Officer Diaz, a myriad number of innocent reasons other than hiding criminal contraband may more readily explain why a nineteen year old man would appear nervous while being addressed by a police officer. See United States v. McKoy, 428 F.3d 38, 40 (1st Cir.2005) (“Nervousness is a common and entirely natural reaction to police presence …”).

Nor was presence in a high-crime area helpful to the prosecution, as Ireland reminded us.  In fact, the defendant in this case, Mr. Cruz, lived on the street where his car was stopped.  Apparently, it is not suspicious to be found on the street where you live.

So as of today, the odor of marijuana is not enough to allow the police to order someone out of his car, or even to continue to detain him and investigate further.

(I know the picture has nothing to do with burning marijuana, cars, traffic stops, etc. I just like it.)

Here’s what.  Madden was charged with A&B after allegedly slapping his wife and grabbing her by the neck.  And of course, at his arraignment, the Commonwealth filed a motion for his pretrial detention under G.L. c. 276, § 58A, on the basis of dangerousness.  As they do to almost everyone charged with A&B these days.  Madden didn’t get held without bail, though, despite (or perhaps because of) his stipulation to dangerousness.  He was released , but with a curfew, some small bail and some other annoying but basically meaningless conditions.  Oh, and a GPS monitor strapped to his ankle.

So, the alleged assault and battery on his wife occurred three weeks after Madden filed a complaint for divorce.  Soon thereafter, he was awarded temporary sole physical custody of the Madden children.  Wait, what?  He’s so dangerous after hitting and choking his wife that the Probate Court gave the kids to him.

Because of the temporary custody award, Madden asked the District Court Judge to lift his curfew and remove the GPS device from his ankle.  The Judge said no.   Madden filed a bail review petition in Superior Court.

The Commonwealth filed a written opposition to the defendant’s motion, asserting that the Superior Court did not have authority to hear the motion and that the defendant’s only avenue for relief was a petition to a single justice SJC. A Superior Court Judge held a hearing anyway.  Following a hearing, the  judge allowed the defendant’s motion and ordered the removal of his curfew and the GPS device.  The judge did, however, stay the order until the Commonwealth had time to appeal.  Which was thoughtful.

The Commonwealth appealed to a single justice, and ultimately the SJC said people in Madden’s circumstances can appeal the conditions of their pretrial release to the Superior Court.  Which we suspected all along, but now we have it on the best authority.

What is particularly interesting in this case is that Madden stipulated to his own dangerousness, and initially agreed to the conditions that were imposed upon him.  It wasn’t until his circumstances changed that he sought to alter the conditions of release.  This was not a case where the defendant agrees to the terms of release so he won’t get held in custody, then challenged those terms right away in Superior Court.

So says the Boston Globe today.

One wonders how school districts intend to educate their faculty and staff about the content of their policies, when they haven’t been formulated yet.  A major problem this failure of follow-through causes is inconsistent responses to incidents across school systems.  Problems in middle school don’t disappear when someone moves on to high school.  Or from grammar school to middle school.  Significantly, bullying  situations can escalate over the summer, with the lack of daily supervision of the school year.

It has been frustrating to deal with schools that still tell bullying victims : “There is nothing I can do for you.”  (Actual quote from a middle school principal to a student seeking help.)  System-wide policies are supposed to put an end to that attitude.  We shall see.

Commonwealth v. Canadyan is one of those instances.  It was published three days ago by the Massachusetts Supreme Judicial Court.  It is an important appellate case that says, essentially, that a person who is on probation, who is also homeless, can’t be found to have violated his probation because he couldn’t find an electrical outlet to recharge his GPA monitor.  Again, we are talking about people who are homeless.  This is news, it seems, to courts in Massachusetts.  The Supreme Judicial Court of Massachusetts gets it right and holds that you can’t punish Mr. Canadyan for being homeless.  Its the District Court judge, Sarah B. Singer, I — and the SJC — have a problem with.

Mr. Canadyan was convicted of indecent assault and battery on a child under the age of fourteen, two counts, and was sentenced to eighteen months in jail and five years of probation.  Among other things, he was also ordered to wear a GPS monitoring device, so the government can know where he is at all times.  (Because that will stop him from reoffending.)  I have no idea about the details of his crimes.  They aren’t really important here.

What is important is that Mr. Canadyan lives in homeless shelters.  It is also important that his GPS monitoring device runs on a battery, and has to be recharged.  If it isn’t recharged, it stops working and Mr. Canadyan, as far as the government is concerned, disappears, and thereby violates the terms of his probation.  As the Supreme Judicial Court of Massachusetts writes,

A detailed recitation of the history of the case is unnecessary. After the defendant was released from prison in December, 2008, he reported to the probation department where he was informed of the specific requirements of the GPS equipment that he would need to wear and maintain during his probationary period. Those requirements included access to either a dedicated telephone line, or an electrical outlet, or both. The homeless shelter where he lived was unable to provide access to either.

It is undisputed that the defendant was given an extended deadline to work out this problem. It is further undisputed that he and the probation department both worked diligently and in good faith to explore other housing options and alternative technological solutions to no avail (at least until after he was found to be in violation of his probation). In spite of these efforts and without a workable solution, the probation department issued a notice of violation in February, 2009.

So they tried to find the guy a home, and couldn’t.  The Probation Departmet’s response to this was to issue a notice telling Mr. Canadyan that because he couldn’t satisfy a condition of his probation, he would have to go back in front of the judge to determine if he had violated that term, and if so, what should be done about it. OK, that is a reasonable response.  Probation had to get the guy back in front of the judge to do something about the fact that the GPS requirement is not compatible with the pesky homelessness problem.

At the hearing, Canadyan produced all kinds of evidence about how hard he has looked for a place to live and a job.  Specifically,

The defendant called counsellors from NECHV [New England Center for Homeless Veterans] and the Job Net Career Center in Boston, with whom he had worked to find employment. In addition to describing those efforts, these witnesses provided substantial evidence about the extraordinary obstacles facing sex offenders attempting to secure employment.

I get it. It’s hard enough to find a job these days.  Its even tougher when you have a record, and if you are a sex offender, forget about it.  Oh, and also, its hard when you can’t shower every day and have no real clothes to wear to a job interview because you are homeless.  Furthermore, the SJC writes that

There was no evidence that the defendant had been anything but cooperative with the probation department, had violated any of the other conditions of his probation, or had wilfully remained homeless for the purpose of evading the GPS monitoring condition of his probation.

Its this next part that makes me think I am missing something:

After receiving this evidence, the judge concluded that the defendant’s efforts were below what she requires when employment is made a condition of her probation orders. At the conclusion of the revocation hearings, she found that the defendant was in violation of the GPS condition of his probation without excuse insofar as he had failed to make sufficient efforts to find employment that might have enabled him to secure housing that would have met the requirements of the probation department’s GPS system. (Emphasis added, in case you missed it)

I was going to go on about the SJC’s finding of error, and how they restated that you can’t be punished for violating a condition of probation if it isn’t your fault.  But I think the SJC’s final footnote sums up for me why I thought I was missing something about the District Court Judge’s decision and “reasoning” in this case.  The footnote reads as follows:

Throughout the proceedings, the judge was both dismissive and condescending in her treatment of defense counsel, the evidence ably presented on the defendant’s behalf, and the defendant’s circumstances.  Such demeanor creates an unacceptable appearance of bias and partiality.

The only part the SJC gets wrong is that it isn’t just an “appearance” of bias and partiality.  Those of us who represent the Mr. Canadyans of the world see this all the time.