Massachusetts high school perfoming illegal criminal record checks of prom dates

According to this article in the Cape Cod Times, school officials at Dennis-Yarmouth Regional High School have been running criminal record checks on prom-invitees who are not students at D-Y, and denying admission to some students' dates. Per the Times:

Kenneth Jenks, D-Y principal, confirmed Monday that the school ran criminal records checks on any non-D-Y students invited to Saturday's prom and that at least six dates were denied a ticket because of some type of criminal history involving a drug or alcohol offense or violent crime.

It appears that the consent of the invitees was never obtained, a requirement under the law.

Under state law, schools may obtain CORI information about a person only if the subject has signed a specific CORI request form provided by the state, according to a 2003 advisory from the state education department.

A state Department of Education spokeswoman said yesterday that, to the agency's knowledge, the D-Y background checks were a violation of the state CORI law.

''Based on what the law says, they don't have a right to do that,'' Heidi Perlman said.

The records were obtained through the school "resource officers," police officers assigned to the school, who work on school grounds. Interestingly, the Dennis and Yarmouth Chiefs of Police seem not to have known about the checks.

Even juvenile adjudications, with successfully completed sentences, were grounds for exclusion from the prom.

Lt. Gov. Healey proposes specialty sex-offender courts. Is this a good idea?

Our Lieutenant Governor has found a new issue to bolster her campaign for the governor's office. As this article in the Boston Globe reports, Kerry Healey thinks we need specialized courts to handle sex offense cases. We have drug courts in some jurisdictions, and I know of at least one "gun court" in Peabody, which serves Lynn, also. Her argument, as the article reports it, is that we need these courts "to improve how victims are treated and sex offenders are monitored and to drive down the number of new crimes committed by known offenders." The Globe quotes:

"We need to have a court that understands the plight of the victim, that understands how to deal with sex offenders and disposes of these cases appropriately," Healey said.

I am cynical about Kerry Healey, politicians in general, and wealthy Republican candidates especially. Sex crimes are obviously a hot topic in the media. The public's interest in prurience is matched only by the media's efforts to feed it to us. As someone who tries sex offense cases, I do not feel that courts have a problem understanding the "plight of the victim", and I think our courts "deal with sex offenders" just fine, whatever that means. I suspect that "dispos[ing] of these cases appropriately" means finding every defendant guilty and imposing the maximum applicable penalty.

Our judges are, for the most part, quite bright, and, also for the most part, do not have a hard time understanding and following the issues in a sex offense case. It may sound callous, but I'm not sure how the "plight of the victim" figures into the determination of guilt or non-guilt of the defendant, which is what the courts do. And I certainly don't think Kerry Healey is in a position to tell us if sex offense cases are being "disposed of properly." She hasn't identified any specific systemic problems in those areas, though I am sure she has an anecdote or two to horrify us with.

The real problem is that there just aren't enough judges, courtrooms, or other resources available to deal with any type of case. When I see courts in other states that have, for example, real-time transcription, I am reminded that, while our courts in Massachusetts are the oldest in the hemisphere, they are still operated much as they were for most of the last century. But fixing that problem is not of interest to Healey, or any other politician, because it would cost a great deal of money, and she would not get to use phrases like "sex offender" or "plight of the victim" on the steps of Boston Municipal Court in front of the press. And it isn't politically viable to suggest that we should spend the public treasure on anything that may benefit a defendant as well as a prosecutor. It just wouldn't play as well with the voters who vote the way the talk shows instruct them to.

The right to present a defense

In re-reading the recent Supreme Court of the U.S. decision Holmes v. South Carolina, I think it may prove useful for Massachusetts criminal defense lawyers, even though it is a South Carolina capital case. (It is also Alito's first opinion. The cynic in me did not expect him to start out of the box by overturning a death sentence.) This is a case that, coupled with Crawford v. Washington, strongly reinforces the Sixth Amendment rights to present a defense and of confrontation.

Holmes is a case in which the defense attempted to present evidence that a third party — Jimmy White — had committed the killing for which he was charged. The evidence regarded confessions that White allegedly made after the killing, and other evidence that may or may not have corroborated or supported that confession. The trial judge found that the forensic evidence against Holmes was very strong, and that the evidence that White actually killed the victim was not strong enough for a jury to hear it.

At oral argument before the Supreme Court, Holmes’s attorney, John H. Blume said that South Carolina places too high a burden on defendants who wish to present evidence that another person committed the crime with which they are charged. Blume is a law professor at Cornell University. South Carolina law required Holmes to show that third-party evidence would raise a "reasonable inference or presumption" that he was innocent. Blume argued that South Carolina Supreme Court decision in Holmes's case would require him to prove that White committed the killing beyond a reasonable doubt.
The “reasonable inference” standard is a lower threshold, he argued, and allows juries to take the leading role in determining which facts are and which aren’t credible.
He added that the judge should not consider the strength of the prosecution's evidence against the defendant in determining whether to admit evidence of third-party guilt. Judges, he said, should look at the defense’s third-party evidence solely on its own merits.

“Are you saying you cannot consider the strength of the prosecution’s case at all in determining whether to allow third-party evidence?” asked Justice Antonin Scalia.

“Yes,” said Blume. “It’s not necessary for a ruling in our favor in this case.”

“How can you tell whether it raises a reasonable inference in a vacuum without regard to the evidence on the other said?” inquired Chief Justice John Roberts.

Blume replied that it was up to juries, not judges to decide the credibility of such a defense.

The Sixth Amendment right to present a defense is real.

A last interesting note, Alito barely mentions that this is a death case.

U.S. v. Montiero: A clear and thorough discussion of the law of suppression and motor vehicle stops in the First Circuit

The First Circuit today issued an opinion in United States v. Montiero, (05-2283), which gives a well-written exposition of the law of suppression in the circuit.  

Of note: Testimony at the suppression hearing by Boston Police Officers that they stopped the motor vehicle for "field interrogation and observation."  The Court dropped this footnote:

We quote this phrase, which appears to be a term of art inthe Boston Police Department, from Officer Coyne's testimony at the suppression hearing. Coyne explained that he meant that he had stopped Rodrigues's car to "get information" by "speaking to [thedriver]."

I don't remember the "field interrogation and obvservation" exception to Terry v. Ohio. 

No more credit for home confinement in Massachusetts

I have had several clients receive credit for time served in custody for the period during which they were confined to their homes on an electornic bracelet. Thise days are over. In Commonwealth v. Morasse, the Supreme Judicial court of Massachusetts has held that "being restircted to one's ohome is not the equivalent of being incarcerated." Sounds obvious when they put it that way. Of course, it depends upon the nature of the home to which one is confined. This decision removes an attractive aspect of home confinement as a pre-trial alternative to incarceration, though any alternative to incarceration is relatively attractive.

Electronic monitoring, or ELMO as we call it here in the Commonwealth, is ever more frequently imposed as either a pre-trial condition or as part of a sentence. The idea is that the defendant wears an electronic transmitter on a strap around his or her ankle. A receiver is hooked up to the home phone line, and if the transmitter goes beyond a certain radius (basically the yard around the house) the receiver will call a central location and report the transgression.

In the past, it has sometimes been effective to argue to a sentencing judge that the home confinement is the functional equivalent of incarceration, as it is a severe restriction of one's liberty. The SJC notes that their decision in Morasse brings Massachusetts in line with most other jurisdictions, which do not grant credit for home confinement. A notable exception is California, whose jail credit statute apparently specifically includes home confinement as credit-worthy.

I've seen some homes in California that I wouldn't mind being confined to. But apparently the California legislature feels that, on the average, being confined to one's home in Cali is the equvalent of jail.

Great criminal practice resource, especially for new defense lawyers, and its free

The Center for Criminal Justice Advocacy is an excellent on-line resource for criminal defense lawyers, especially those who are just starting out.

From their home page:

The Center for Criminal Justice Advocacy was formed as a free grassroots training resource to assist new lawyers in becoming competent criminal trial practitioners. Our public service mission is to provide newly licensed sole practitioners and prosecutors, who toil daily in criminal courtrooms across our country, with a body of materials that support a structured analytical approach to planning, preparing, and conducting a persuasive and convincing criminal trial.

If you are just starting out in practice or are looking for a jump start for research on a criminal trial practice topic, this is a great resource.

Police torture man in Tennessee

See this post on Georgia Criminal Law Blog and Podcast for what can happen if your client doesn't consent to a search of his home. This is really frightening.

It is hard to say that this could happen anywhere, and my blue state, northeastern elite proclivities tempt me to say "its a Southern thing." But I don't think so. I think this happens, to different degrees, all over the country. I've had many clients who claimed police abuse, but seldom have I found it to be credible. However, there have been times when I've wondered, and investigated. I've never encountered anything close to this, but coercion and intimidation can take many forms. I've witnessed an officer tell an obviously-underage driver that if he didn't let the officer search his car, he would be in jail within an hour. Nothing was found in the car. I'm sure that is the officer's standard procedure.

Abuse by law enforcement is an issue to which I need to pay more attention. It is very easy to dismiss claims of abuse. I will listen more closely.

Red Sox / Yankees

I'm from Massachusetts. I was born here. My dad was born here. I'm a Red Sox fan; I had no choice. My father has apologized for doing it to me. That was before 2004.

Johnny Damon may not get out of Fenway alive tonight.

Its is five minutes before game time, and Doug Mirabelli just arrived at Fenway in a State Police cruiser, which picked him up at the airport. He got out in uniform, so he must have changed in the cruiser.

Sox - Yankees. First game of the season. We get to do it eighteen more times, at least. this is important. Hang on.

Investigation and effective assistance

I read a new case today that was disturbing not in its holding, but in the underlying facts.  In Commonwealth v. Garcia, the Massachusetts Court of Appeals found a criminal defense lawyer ineffective.  Here is why:

 When former trial counsel testified, at a hearing on the defendant's motion for a new trial due to ineffective assistance of counsel, that "it is not my practice to talk to government witnesses" and that he puts on his own witnesses "cold," . . .  When trial counsel failed to interview and call a witness who, in part, directly contradicted the allegations of a complainant, the judge did not abuse his discretion in allowing the motion, . . .

That is the first paragraph of the decision.  It gets no better as it continues.  The defendant was charged with three counts of Indecent Assault and Battery on a child under the age of fourteen, which even in Massachusetts are very serious allegations.

The attorney stated at the hearing that it is not his "practice" to interview witnesses before trial, and prefers to put them on "cold".  Furthermore, when asked how he would know who to put on as a witness, he said "I always interview my client." 

In my experience the client, while sometimes a good source of information and investigative leads, is more often a very poor source of the kind of information that is ultimately helpful at trial.  It is often months into a case before a client will begin to open up to his or her lawyer, especially in court-apointed cases.  

I use an investigator with whom I have built a strong relationship over the years, who has proven to be an important asset time and again.  I cannot imagine relying solely on my client's story in a case such as the one in Garcia.  Even in what appeared to be "simple" cases, the investigator has found witnesses or evidence that completely changed the case, in the defendant's favor.  I can't imagine a criminal defense attorney whose practice is to not investigate, to not interview witnesses, to not prepare them to testify, and to rely solely on his client for information.

Funding lags for indigent defense support services in Massachusetts?

I would like to know if other lawyers who represent indigent defendants have heard the same comments I have from my investigator and others about payment delays in indigent cases in Massachusetts.

My investigator has told me many times over the past couple of years about his bills for services in indigent cases going unpaid for months, and even longer in the case of services rendered at the end of a fiscal year.  CPCS pays for investigators, experts, and other necessary elements to a zealous defense from its own budget.  Those vendors submit their invoices directly to CPCS, and are are paid directly by CPCS.  The attorney appointed to represent the defendant certifies that the services were performed as represented on the invoice.  

Funding for the salaries of prosecutors and full-time public defenders has been a moderately popular subject in some media outlets here in Massachusetts lately.  Increasing the rates for private counsel who represent indigent defenders has been somewhat less frequently addressed.  I have heard nothing about the adequate funding of investigators and the myriad other vendors whose services are necessary to defend indigent people.