Massachusetts Criminal Defense Lawyer Blog

July 4, 2020

Immigration impact of Child endangerment statute subject of conflicting interpretation among Courts

In February, the United States Supreme Court was asked to consider whether a misdemeanor child endangerment conviction may be grounds for removal of a lawful resident immigrant under the Immigration and Nationality Act. The Court recently denied certiorari, allowing the petitioner’s removal to proceed. This decision effectively endorses an expansive interpretation of the scope of offenses against children that can result in deportation.

Gerard Matthews has held lawful permanent resident status in the United States since 1989. Almost twenty years ago, the State of New York charged Matthews with child endangerment for committing sexual acts in front of a minor on two occasions. Matthews pled guilty to both counts. Consequently, in 2011, the Department of Homeland Security initiated removal proceedings under 8 U.S.C. § 1227(a)(2)(E)(i), which provides that “[a]ny alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable.” The INA does not define the crimes of child abuse, neglect, or abandonment, although it does define domestic violence. Under New York’s child-endangerment statute, a person commits child endangerments when “[h]e or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child….”

An immigration judge concluded that Matthews was removable and that his criminal history made him undeserving of discretionary relief. The Board of Immigration Appeals and the Court of Appeals for the Second Circuit affirmed. Matthews v. Barr, 927 F.3d 606 (2nd Cir. 2019). In particular, the Second Circuit deferred to an earlier interpretation by the BIA holding that the INA provision encompasses incidents of child endangerment where there is a sufficiently high risk of harm to the child. This definition includes mental and emotional harm as well as sexual exploitation. Moreover, the court held that Matthews failed to present evidence that New York convicts defendants of child endangerment for offenses that are insufficiently serious to fall within the BIA’s definition of child abuse. Under these circumstances, the court concluded that the New York statute was a “categorical match” with the BIA’s definition and relief was not warranted.

June 29, 2020

United Supreme Court case provides equality, discrimination protection in the workforce for LBGTQ employees

by Michael DelSignore

In a 6-3 opinion written by notoriously conservative Justice Gorsuch, the United States Supreme Court held that Title VII of the Civil Rights Act of 1964 covers employment discrimination based on sexual orientation and gender identity in Bostock v. Clayton County, Georgia, 590 U.S. __ (2020). The opinion was released to the public on June 15, 2020.

What is Title VII?

Title VII is a portion of the larger Civil Rights Act of 1964, the first truly significant civil rights law borne out of the landmark Supreme Court decision in Brown v. Board of Education, which legally ended segregation. The famous civil rights events found in our history books – from Rosa Parks sitting in the front of the bus to Martin Luther King, Jr.’s “I Have a Dream” speech – followed Brownand led to the enactment of Title VII. After a dramatic congressional debate, it was signed into law by President Lyndon B. Johnson on July 2, 1964.

June 5, 2020

Police Brutality and Racial discrimination should no longer be protected by the doctrine of Qualified Immunity

by Michael DelSignore

The tragic death of George Floyd will hopefully bring reforms that help ease racial tensions and move us toward greater equality in society. One legal doctrine that allows police officers to avoid liability for acts of brutality and excessive force is the doctrine of qualified immunity that should be revisited in light of recent events.

What is the doctrine of Qualified Immunity?

Qualified Immunity is a legal doctrine established in 1982 with the Supreme Court case Harlow v. Fitzgerald, 457 U.S. 800 (1982), to balance constitutional rights and reasonable officer actions by allowing officers to rely on the present state of law at the time of their actions. This means the officer would not be found in violation of someone’s constitutional rights for following a law that was legal at the time and later ruled unconstitutional. Over time, this has developed in a way that protects an officer’s action above others’ constitutional rights so long as the specific type of violation in question is not “clearly established” as unconstitutional. The Supreme Court has not defined exactly what “clearly established” means, although it has provided some limited guidance that it is more than a generic statement in the Bill of Rights but does not have to be a precedent with the exact same factual situation.

May 29, 2020

Massachusetts SJC to hear timely cases about race in America after the death of George Floyd

by Michael DelSignore

The Tragic death of George Floyd and the protests that have followed shine a new light on two major Massachusetts Supreme Court cases involving Race and how our Constitution is going to be interpreted.

The tragic death of George Floyd involves shocking actions that are likely to result in murder charges being filed against the officers involved. As a result of this injustice, protests are taking place in major cities with a major incident of violence in Minneapolis as a police station was set on fire.

From what I have seen of the video, it does not appear that Floyd was any type of threat to the officers. There was simply no justification for having a knee to his neck; This method of restraining someone is not taught in police trainings and other police officers have voiced their disapproval of the officers’ actions. From what we know, the video evidence presents an overwhelming case of police brutality with no justification.

May 17, 2020

Massachusetts OUI Drugs charge and proving the amount of drugs in your system under Commonwealth v. Shellenberger

by Michael DelSignore

In a Massachusetts OUI drugs case, the Commonwealth needs to prove the concentration of drugs in your system to be able to prove you were under the influence of a drug like marijuana, heroin or a prescription drug. The Commonwealth can attempt to show you were impaired based on observations, but typically that evidence will not be sufficient to support a conviction.

Often, the Commonwealth will attempt to use medical evidence to prove an OUI drugs charge. However, a Massachusetts OUI Lawyer should object to this evidence. There is a leading case called Commonwealth v. Shellenberger, 64 Mass. App. 70 (2005) that deal with the issue of when a notation of drug use in medical records can come into evidence. In the Shellenberger case, the defendant was charged with motor vehicle homicide by negligent operation. The defendant’s medical records contained a reference to amphetamine in her system. The Massachusetts Appeals Court found that the reference to the amphetamine in her system was an error of law. The Appeals Court held that to be properly admitted into evidence there would have to be:

reliable evidence as to the amount or concentration of the drug in the defendant’s system; and

May 13, 2020

Post Miranda Silence may be addressed by the United States Supreme Court in the Palacios-Solis petition for Certiorari

by Michael DelSignore

The United States Supreme Court is being asked to considers a petition for Certiorari regarding whether Post-Miranda silence violates the privilege against self-incrimination after the defendant’s arrest when it is allowed to be used by the prosecutor during their case-in-chief to prove a criminal charge.

In the case of Adalberto Frickson Palacious-Solis v. United States of America, the defendant was charged with federal drug trafficking. The charge was conspiracy to possess with the intent to distribute and possession with the intent to distribute over five kilograms of cocaine while on board a vessel subject to the jurisdiction of the United States.

His first trial ended in a hung jury. The Government elected to try the case again as is there right and the defendant was convicted at the second trial. To read the filings in the case you can go to the Scotus Blog link.

May 13, 2020

Man’s Search for Meaning: Attorney DelSignore’s book recommendation to clients facing a adversity in their life

by Michael DelSignore

I read an amazing book this past weekend called Man’s Search for Meaning by Victor Frankl. Many have already read this book, but if you read it in high school or a long time ago, it is worth a second read. I want to share with you my thoughts about the book.

Who was Victor Frankl?

Victor Frankl was a doctor, psychologist and neurologist who survived the Concentration Camps during the Second World War. He wrote Man’s Search for Meaning to explain what he went though and detail what he learned about people during that experience and the meaning of life. Man’s Search for Meaning is a book about his thoughts on the Meaning of Life and the development of his concept of Logotherapy where physical and mental health are determined by whether there is a purpose in our life.

May 6, 2020

Treatment options for those facing a Massachusetts OUI charge and how to help them overcome addiction

by Michael DelSignore

As a Massachusetts OUI Lawyer, I have encountered many individuals struggling with addiction. It is important to understand this: You can always get help; it never hurts your case. You may have a drinking problem, but you can still be found not guilty of your OUI charge. Do not let your desire to win in court, prevent you from getting the help you need to move forward with your life. One of the Core Values we have at DelSignore Law is that regardless of the outcome of your case, we want to help you improve your life, move forward in a positive way and we want to give you as much information, advice and support that we can to help you achieve a better life. We send our clients the Book the Slight Edge after the case; the reasons we do this, is that while helping someone win and get their life back after an OUI or criminal charge is rewarding and what we are paid to do, it is those clients that we have helped in a meaningful way in life and beyond the courtroom that will be the true reward for me as a person and an attorney at the end of my career.

I recently read the Time Magazine Special Edition on Addiction and wanted to share the key points from the magazine.

WHAT CAUSES ADDICTION?

May 5, 2020

Psychology of Persuasion for Trial Lawyers a look at the Lecture of Dyke Huish given at NACDL

by Michael DelSignore

The Psychology of Persuasion Lecture by Dyke Huish was one of the best lectures I have heard for criminal defense lawyers wanting to improve their trial skills. Having extra office time, I have made it a goal to listen to all the recording of seminars that I have purchased over the years. This lecture was terrific and I wanted to share what I learned from the CD.

In this Blog, I will discuss the lecture of Dyke Huish, a criminal defense lawyer from California. He gave this speech at the National Criminal Defense Lawyers Association Meeting in Philadelphia.

He made many excellent points that are worth remembering for lawyers. I will recount them here and give my takeaways as to how I will use these ideas in my upcoming trials.

May 4, 2020

When is a Pat Frisk and Exit order justified in a Massachusetts Gun Possession charge without an FID card?

by Michael DelSignore

Gun crimes in Massachusetts often involve issues of whether there was a Constitutional basis for police action. Here are some common legal issues:

Was there Reasonable suspicion to stop your car;
if there was reasonable suspicion, was there a basis to order you from the car;