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In a Massachusetts sexual assault trial, the evidence can be fairly contested the job of the jury can be very difficult, given the emotions of these charges.  Improper arguments by prosecutors can result in a defendant not receiving a fair trial.

“When Mexico sends its people, they’re not sending their best . . . They’re bringing drugs. They’re bringing crime. They’re rapists.” This harmful rhetoric espoused by former President Donald Trump may shock the senses for some, but, at its core, his words brought to light just how widespread prejudice against undocumented immigrants was. Knowing this, the injustice is almost palpable when you consider the prosecutorial missteps in the trial of undocumented immigrant, Claudiano Santana.

In Commonwealth v. Santana, released last month, the Massachusetts Appeals Court ruled against appellant Claudiano Santana, upholding his convictions of three counts of indecent assault and battery on a child under the age of fourteen. The focus of the appeal? Prosecutorial remarks and questions about Santana’s immigration status and ability to speak English.

A defense attorney has a duty to represent their client “zealously within the bounds of the law.” An attorney also must share evidence through discovery with opposing counsel. A defendant, as per the Fifth Amendment, has the right not to incriminate themselves. This right spans from a defendant not incriminating themselves during police interrogation, all the way to the courtroom and not requiring a defendant to testify against themselves. These basic principles of criminal law work in tandem to protect the accused and make sure they are “innocent until proven guilty.” The work of these two principles is essential in protecting the rights of the accused.

In a case of first impression for the Massachusetts, Commonwealth v. Tate, the SJC is to decide whether defense counsel disclosing the location of a jacket and gun used in the commission of an alleged crime to the prosecution was a violation of the duty to the defendant.

How did the defense attorney find out about the evidence?

The character and fitness portion of the bar exam serves the purpose of ensuring that barred attorneys are morally fit for the practice of law and deserving of the trust of the people. The character and fitness questionnaire usually asks about past criminal conduct or civil violations, academic or employment misconduct, mental health or substance abuse issues, and financial history. If an applicant does not pass the character and fitness portion of the bar, they cannot sit for the test portion.

If an applicant has prior transgressions, it does not mean they are automatically disqualified from the bar. An applicant must show they appreciate the wrongfulness of their past misconduct and they understand professional conduct for Massachusetts lawyers. The applications are reviewed on a case-by-case basis. This was the question in Lionel Porter v. Board of Bar Examiners decided by the Supreme Judicial Court.

What prior transgressions did Lionel Porter have?

As society and technology evolve, the courts need to evolve with it. A pressing issue that courts have had to deal with is the use of digital data in criminal cases against defendants, particularly emails.

Not only can the contents of an email be evidence against a defendant, but the metadata behind the email and the account, such as date and time of creation and IP address, are being used more frequently in courts. The Court in Commonwealth v. Michael Middleton considered whether expert testimony is required to explain email subscriber information in a criminal case.

What is the standard for admitting electronic communications?

A defendant convicted on a drug possession charge challenged the legality of using drug-sniffing dogs for probable cause for a strip search. The Massachusetts Appeals Court affirmed the conviction of the defendant and the use of the drug-sniffing dog alert as probable cause to strip search in Commonwealth v. Elijah Judge.

Defendant was spotted by police with a group of people in a downtown Hyannis hotel parking lot. Police considered this spot a “problem property,” and knew it to be a location where police had previous narcotics investigations. Police watched the defendant for about an hour, and approximately 3 AM, the officer saw a woman and the defendant standing by the trunk of his car and looking around as if they were “conducting counter surveillance.”  The officer also saw the defendant and the woman took something out of the trunk and put into the front of the car.

Believing he witnessed a drug transaction, the police officer called for backup. While waiting for backup, the police officer went to the car and turned on his lights. When approaching the car, he saw a “white powdery substance” on the center console of the car.

Can an Attorney Represent Co-defendants? United States Supreme Court May Decide.

In many states, it is legal for two co-defendants in a crime to retain the same attorney. However, this is not the ideal situation because it is ripe for conflicts of interest. Co-defendants in a criminal case likely have information about the other defendant that can be detrimental to their case and will oftentimes “flip” on their codefendant. It can be difficult for an attorney to represent both codefendants competently and diligently as required. The American Bar Association advises against representing co-defendants, but there is no general law forbidding it. The Supreme Court could change this. The case of Holcombe v. Florida is pending before the Supreme Court and asks the Court whether an “actual” conflict of interest that adversely affects counsel’s representation when the attorney engages in “joint and dual” representation – i.e., simultaneously representing both the defendant and a key prosecution witness during a trial. 

What happened in Holcombe v. Florida?

Awaking the Giant Within is one of the best books on life and motivation.  This is a great book for a number of reasons.  This type of book would be in the category of self help or motivational and what it does it really allows you to see how your thoughts, word choice and experiences which he calls references points shape your life. And he applies this advice to help you control both your emotional, physical well being, relationships and financial goals.  

So much of success in life is dependent on being mentally sharp.  He states that:   

3 decisions that control your destiny are:

Patients that have received terminal diagnoses, such as cancer, frequently worry about end-of-life care and options. An option that is becoming permitted in states such as Oregon, Washington, Vermont, Colorado, California, Hawaii, Maine and New Jersey is physician assisted suicide or Medical Aid in Dying (MAID). Physicians and patients in Massachusetts are challenging their right to be able to use this practice as an option of end-of-life care in Kliger v. Healey.

What are current options that terminally ill patients currently have?

The most common option the terminally ill have are to be administered strong narcotics that are provided to help with pain and suffering, but have side effects of deceased mental alertness, and are not always strong enough.

When Can a Defendant Waive Their Right to a Jury Trial? 

Most of us know that there is a fundamental right to a jury trial. However, there is also a right to waive a jury trial. The case of Commonwealth v. Gebo is pending before the Massachusetts Supreme Judicial Court and involves a defendant who wanted to waive her right to a jury on the day of trial. 

In April of 2017, Homer Gebo was watching the news and drinking coffee in his home. His wife, the defendant, went into the kitchen. A fight ensued between them, and the defendant picked up a plastic chair and hit Mr. Gebo’s arm. Mr. Gebo grabbed the chair and threw it. The defendant then hit Mr. Gebo in the head with a ladle. He passed out for 10-12 seconds and then awoke. Confused, Mr. Gebo asked what had happened and why the defendant hit him. She told him that he had a heart attack. 

Is Solitary Confinement Torture? United States Supreme Court May Decide.

 The United Nations considers solitary confinement exceeding 15 days to be torture, however solitary confinement is a popular method of inmate discipline in American prisons. Solitary confinement is also used for an inmate’s own safety if the inmate’s case was high profile or if the inmate has a higher chance of being injured by the other inmates. Dennis Wayne Hope has been in solitary confinement for 27 years. Hope v. Harris may be a turning point for prison reform if it reaches the United States Supreme Court.

What happened in the Hope case?

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