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The Massachusetts Supreme Judicial Court ruled in the case of Commonwealth v. Hardy that failure to strap a child in properly to a car seat appropriate to the child’s age did not constitute involuntary manslaughter or reckless endangerment of a child, reversing the defendant’s conviction on those counts.  One of the children that died in the accident was in the middle seat with an adult seat belt on, but not seat belted in as he should have under the law for his age. 

What type of proof is necessary to convict someone of involuntary manslaughter?

The SJC emphasized that the crime of involuntary manslaughter requires the following elements of proof: 

Massachusetts Appeals Court address what level of evidence is needed to convict for negligent operation.  In Commonwealth v. Zagwyn, the Appeals Court clarified the law related to evidence of negligent operation of a motor vehicle and OUI in Massachusetts. The central issue addressed by Zagwgnwas whether the Commonwealth meets its burden of proof on the negligent operation charge when the evidence demonstrates solely that the defendant was operating a vehicle with a defective headlight and rear license plate while intoxicated. The court also considered whether the officer’s opinion testimony that defendant was too intoxicated to drive a motor vehicle, the ultimate issue of guilt on the OUI charge, was improper and created a substantial risk of a miscarriage of justice.  In considering those arguments related to the OUI charge, the SJC summarily affirmed the defendant’s conviction for those reasons stated by the Appeals Court and offers no further discussion of the charge.

On the negligent operation charge, the SJC ruled that the evidence was inadequate to support the jury’s conviction and reversed the judgment of conviction. The evidence in Zagwynshowed that the arresting officer noticed that defendant’s vehicle had a broken headlight and rear plate light.  He followed defendant’s vehicle for about a mile before pulling him over.  While following defendant’s vehicle, the officer did not observe defendant speeding, swerving, or making any sudden braking movements.  When the officer stopped defendant’s vehicle, he moved the vehicle to a safe location.  Evidence obtained during the stop showed that defendant was operating the vehicle under the influence of alcohol.  The Commonwealth did not present any additional evidence of negligent operation. Defendant was convicted of OUI, negligent operation of a motor vehicle after a jury trial in the Barnstable District Court. The trial court also found defendant was responsible for civil equipment violations for the faulty headlight and rear plate light.

Prior case law dealing with negligent operation and what is enough evidence

The SJC recently heard oral arguments in the case of Commonwealth v. Zagwyn, and is considering the two main issues of improper opinion testimony by the officer as well as a conviction on a negligent operation charge. For the guilty finding on the negligent operation, counsel highlighted that the defendant was not pulled over for any erratic driving or marked lanes violations, but that he was simply pulled over for having a headlight out. Another argument raised in the SJC hearing is that the improper testimony by the officer prejudiced the defendant and ultimately swayed the jury.  This is an interesting issue on the negligent operation charge.  I had a client in Fall River who was found not guilty of OUI but convicted of negligent operation because she did not turn her lights on.  As a practical matter, in some cases, it is thought to help the OUI to have the possibility of the jury splitting the decision, by finding the client not guilty on the OUI, the more serious offense and guilty on the negligent operation.

Originating out of the Barnstable District Court,  the defendant was found guilty of OUI, negligent operation, and was found responsible for an equipment violation. Zagwyn was stopped by police for a headlight that was out; there was no mention of any marked lanes violation or erratic driving in the police report. Defense attorneys for Zagwyn are asking the SJC to reverse the guilty finding on the negligent operation, arguing that simply having your headlights out does not constitute negligent operation of a motor vehicle.

SJC Justice Graziano commented during the oral argument, asking defense counsel whether or not a defect in a vehicle, such as a broken headlight, would constitute a charge of negligent operation even if the defendant was driving in an appropriate fashion. In the brief filed by Defense counsel Meghan Oreste, she highlighted that most, if not all of the state’s evidence went only to the impairment element of the OUI charge.

District attorneys and public defenders filed a lawsuit Monday April 29, 2019 to prohibit Immigration and Customs Enforcement (ICE) agents from entering into state courthouses to enforce detainers.

What’s an ICE Detainer?

The United States Department of Homeland Security allows ICE the ability to issue a detainer, which is an immigration hold request to federal, state, and local law enforcement agencies who currently have an alien arrested on criminal charges in their custody. The detainer asks law enforcement agencies to notify ICE before releasing the alien, and to additionally detain the individual up to 48 hours in order for ICE to determine whether or not they wish to take the alien into federal custody.  ICE uses detainers for those aliens they have probable cause to believe should be deported from the U.S.

In 2005, I started DelSignore Law as a criminal defense firm handling all types of criminal charges.  While we handle every type of criminal charge, we soon got recognized around Massachusetts for handling DUI cases. It was a great honor to quickly be recognized as one of the top firms for OUI defense in Massachusetts.  The reason I like handling OUI cases is that I can really identity with what the client is going through.  After an arrest, a person feels as though their life is over, they worry about their job, and family life and it is an anxiety that from day one I try to ease for the client.  I can relate to someone who has worked there entire life for something only to believe that it is taken away by one mistake; to give someone a second chance by proving a stop was unlawful, that there was not sufficient evidence to prove the case in court or to be passionate enough to be able to convince the jury in the face of difficulty facts is a very rewarding job.  

          Unfortunately, until the person hears the words not guilty, I cannot predict the outcome or completely ease the stress of being charged.  But I have tried to develop systems over the years to reduce the stress during the process.  I understand what my clients are going through. It was three days before my law school orientation at University of Connecticut School of Law where I was going to start law school.  It was a goal I had been working toward for the last four years of college.  It was my vision in high school as I was on the mock trial team. 

             All of a sudden while driving home from Bryant College I saw the blue lights in the back of my window like so many of my clients.  I was on the side of the road performing field tests, thinking I passed only to be told I failed. How was that possible? My fate was in the hands of a police officer.  There was nothing I could do.  I knew I drank next to nothing that night; I was released and never charged because when I took the breath test the result was zero.  I was arrested because I was nervous and overcome with fear from having my fate in the hands of a police officer.  While I did not go through the stress having to go to court, the experience stuck in my mind that my clients are all at the mercy of the judgment of a police officer.  When I looked at the report the officer wrote, I noticed it was inaccurate, putting quotes for phrases I never use. 

Last August, the Pennsylvania Supreme Court upheld the conviction of Jamal Knox, a rap artist, for multiple charges stemming from what the trial court found were terroristic threats based on the contents of his rap song “F**ck the Police.”  Knox petitions for Supreme Court review and if granted, the Court could not only clarify the “true threats” standard – a muddledarea of First Amendment jurisprudence – but weigh in on the culturally-sensitive and complicated relationship between rap music and free speech.

It is well-established law that true threats of violence fall outside of First Amendment protection.  What constitutes a “true threat,” however, remains far from settled.  In Watts v. United States, 304 U.S. 705 (1969), the Supreme Court held the First Amendment does not protect statements a reasonable person would regard as threatening.  In Virginia v. Black, 538 U.S. 343 (2003), the Supreme Court added a discussion of speaker intent to “true threat” jurisprudence, but fell short of establishing a subjective intent requirement.

Since Black, courts have employed divergent standards when evaluating whether a statement rises to the level of a true threat.  Some follow more of an objective standard, asking whether a reasonable person would find the statement threatening.  Others, however, follow more of a subjective standard, focusing on whether the speaker intended to communicate a threat by their statement. In fact, the law is so muddled that in some states, like Massachusetts, the federal and state courts within the same state do not apply the same standard.

Video of an individual taking the field sobriety tests in a Massachusetts OUI arrests rarely exists as most Massachusetts police departments do not have cruiser video.  This is surprising to most people that meet with me to discuss an OUI charge believe that the entire encounter will be on video of their OUI arrest.  In fact this assumption is not true.  Most police departments do not have cruiser video.  The State police does not use cruiser camera and only a small fraction of local police departments have cruiser video.  You are more likely to find a cruiser video in Worcester county than most of the other counties.  While this is not an exhaustive list, the following police departments have cruiser video in at least some of their police cars.

Police Departments with Cruiser video

  • Webster

In the case of Commonwealth v. Sam C. Wassilie, the Supreme Judicial Court for the Commonwealth of Massachusetts (SJC) is currently considering whether a Superior Court judge properly dismissed criminal charges involving alleged “upskirting”. Upskirting is traditionally defined as secretly filming/photographing up a woman’s skirt to view her private areas. The Commonwealth is appealing the dismissals entered by the Court, and Wassilie is cross-appealing on the counts that the Court declined to dismiss.  The Massachusetts Supreme Judicial Court heard oral argument in the case on April 2, 2019.

Wassilie was found to have set up a cell phone in a concealed area in the public restroom of the Pine Grove Athletic Field in Dalton, MA.  Police obtained a search warrant and found videos on Wasillie’s phone and laptop showing children and adults using the bathroom. The footage showed Wasillie setting up the camera and concealing it with paper towels, and was positioned to captured footage of the genitals and buttocks of individuals using the restroom.

The prosecution argues that the Superior Court Judge made three errors when dismissing several of the Commonwealth’s charges: 1) ruling to dismiss instead of ordering a new trial, 2) finding that there was not sufficient evidence of the crime, and 3) finding that Massachusetts’ “upskirting” statute is ambiguous.

A Boston police officer found himself on the wrong side of inaccurate scientific evidence when he was denied employment based on a positive hair drug analysis.  The Massachusetts Supreme Judicial Court is currently considering a case titled Boston Police Department v. Michael Gannon and The Massachusetts Civil Service Commissioninvolving the use of hair drug tests to determine eligibility for employment.  The Massachusetts Supreme Judicial Court recently heard oral argument in the case; the main focus of the argument is whether the hair drug test is a reasonable test of employment.  The Boston police department has a strict policy that any positive drug test results in disqualification from employment; the legality of that policy was not challenged in this appeal.

The appellant in this case, former Boston Police Cadet Michael Gannon, was passed over for appointment as a Boston Police Officer because a hair drug test he was given came back positive for cocaine. In addition to the fact that the accuracy of hair drug tests has been refuted by some scientific experts, Mr. Gannon had also taken five other hair drug tests as a part of the recruitment and certification process and all five came back negative for drug use. When he learned that he was being denied a position as a full Officer with the Boston Police Department based on the positive hair drug test, which he maintains was not accurate, Mr. Gannon filed an appeal to the Civil Service Commission to contest the decision. The Commission determined that because of the unreliability of hair drug tests, the Police Department did not have reasonable justification for refusing Gannon the position. Being dissatisfied with that result, the Department sought judicial review before the Superior Court.  The Superior Court reversed the Commission’s decision, and Gannon now appeals before the Supreme Judicial Court to have the Commission’s original decision reinstated.  The Boston Police officer argued that the Superior Court judge should have given difference to the findings of the Commission.

Oral Argument before the Massachusetts Supreme Judicial Court

In Commonwealth v. Finn, the Massachusetts SJC will decide whether the Superior Court can hold a defendant under the dangerousness statute of 58A after the defendant was released by the district court.

The statute says that a person who is “held under arrest” for a felony as enumerated in Subsection 1 of §58A may be detained if that person’s release would not reasonably assure the safety of any other person or the community. The determination would hold that the person poses a danger to others based on the factors of that person’s arrest and his/her first appearance before the court.

Defendant James Finn has been held in detention March 7, 2018 based on the Court’s determination that he was dangerous to the community. The defendant was arrested on December 3, 2017 and charged with three counts of indecent assault and three counts of providing harmful material to minors.  The alleged victims were three children around the age of eight who lived in the same apartment building as Finn and his wife.  Finn was allegedly under the influence of alcohol at the time.  Finn was in custody when initially arraigned on December 4, 2017.  The Commonwealth moved to detain him on the basis of dangerousness under G.L. c. 276, §58A. This was allowed since Finn did not at the time have a stable residence.  Finn was held in detention until conditionally released by the district court on January 22, 2018. His arraignment in superior court was scheduled for March 7.  Finn appeared for arraignment, and the Commonwealth moved again for pretrial detention under §58A.  The defendant opposed the motion and argued that since he was not subject to arrest the dangerousness statute did not apply to him.  The Court disagreed, and Finn has been in detention since March 7 and is appealing the decision to detain him under §58A.

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