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In this blog we outline our process for taking a case to trial at DelSignore Law.  All cases are different but in general this is out approach that we use in every case.  Early on in the process, I start preparing the cross examination and outlining the closing statement.  I like to do this early because it helps me see the direction of the case in terms of what evidence I need and what evidence I may want to try to exclude at trial or before trial through an evidentiary motion. 

We prepare a trial notebook that consistent of the following for all cases.  We have pictures of the scene, written opening, closing and cross examination questions, motions in liming, and copies of the police report.  In all trial notebooks, I divide each section of the case with a color paper and put extra paper to use during trial.  I also have a copy of the officer’s training manual if the case is an OUI that specifies when the officer was trained on the administration of field sobriety tests.  I bring that manual to court in case an issue of impeaching the officer arises. 

The binder would also include direct examination questions that I will ask any witness as well as copies of any medical records or evidence that I intend to use at trial.  The trial folder consists of everything that I may use at trial.  There are records and motions that I do not intend to use; I keep these out of the trial binder in case I need to find something during trial.  When I have a transcript of an officer from a motion to suppress hearing, I will put the page number by the cross examination for anticipated impeachment.  In other words, if the officer claims that my client has slurred speech during the trial, but did not recall slurred speech at the motion, on the slurred speech chapter of the cross, I would have motion hearing at page 32, to tell me quickly where to find the impeachment.  

The United States Supreme Court has granted Certiorari in the case of Gamble v. United States that raises the issue of whether the Double Jeopardy Clause precludes prosecution for the same offense by the federal and State Government.  

The case of Terrance Gamble involves a 2008 conviction from Alabama where he was convicted of second degree armed robbery.  Both federal and state law barred him from possessing a firearm.  Gamble was found in possession of a handgun.  He was prosecuted by both the federal and state governments for being a felony in possession of a firearm.  The defendant moved to dismiss the federal indictment on Double Jeopardy Grounds, as the federal charge was taken out after the State case was already pending.  Relying on the separate sovereign doctrine, the court denied the motion to dismiss.  The defendant entered a conditional plea preserving this issue for review.  

The defendant argued that the plain meaning of the Double Jeopardy Clause is that no person should be punished for the same crime twice.  The defense argued that cases prior to the formation of the Constitution from England rejected the separate sovereign doctrine.  The defense argued that the separate sovereign doctrine came about from a prohibition case, United States v. Lanza, 260 U.S. 377 (1922) that was driven by policy considerations with the court not looking into the original intent behind the Double Jeopardy Clause.  The defense argued that the doctrine was wrong from the start and the Court was deeply divided when the doctrine was formed.  

The Massachusetts Supreme Judicial Court will address a case that will have an important impact on the way juries are formulated in Massachusetts.  The case is Commonwealth v. Quinton Williams, where a judge allowed the prosecutor to excuse for cause a juror that stated that Black American are treated unfairly by the judicial system.  The SJC allowed for direct appellate review in the case.

  The case was a drug distribution charge out of the Brockton District Court.    The juror answered the judge’s question as follows after the judge asked if the juror has an bias in the case. The juror responded as follows:  

I work with low-income youth in a school setting; I work a lot with teenagers who are convicted of drug crimes.  And frankly, I think the system is rigged against young African Americans.  The juror said that the views could be put from the juror’s mind after asked by the judge.  The juror indicated that the opinion would not impact the ability to be fair and impartial.  

The Massachusetts Supreme Judicial Court heard oral argument in the case of Commonwealth v. Davis.  The Justice had to determine what is the standard to determine if there is probable cause to arrest a driver for being impaired by marijuana. In the Davis case, the defendant was stopped for speeding, the car smelled of marijuana, the officer said that his speech was delayed and the arresting officer formed the opinion that the defendant was impaired by marijuana.  The oral argument before the SJC revealed the following questions and areas of concern for the Justices.  

Justice Link suggested that the officers did not have much evidence to make that conclusion that the defendant was impaired by marijuana.  The Commonwealth disagreed contending that the officer had more than sufficient evidence to conclude that the driver was impaired.  Davis’ lawyer argued that the officer should have conducted some field tests to perform a better investigation to determine impairment.  Justice Lenk questioned the Commonwealth about how much the smell adds to the analysis because it can be long after consumption.  

On the issue of probable cause, the Justice seems to suggest that if it were an alcohol case there would be enough probable cause to arrest.  Justice Gaziano suggested that the SJC allows field sobriety tests into evidence in Gerhardt because it informs the officers opinion regarding the probable cause to arrest.  He questioned the lawyer for the defendant that if the car smelled like alcohol, we would allow the officer to arrest; in this case it smells like marijuana, so the same inference of impairment he asked if that should be permitted.  The defense lawyer skillfully argued that marijuana is different and the Court cannot tell if the person is impaired.  The studies on marijuana suggest that a driver would drive slower if under the influence of marijuana and not faster as the defendant in this case.

Jury selection is a critical part of any criminal trial in Massachusetts.  In Massachusetts, the rules have changed allowing greater attorney participation in jury selection.  The new rules permit Attorney conducted voir dire.  However, the judge still determines whether an individual shall be excluded for cause from a jury.  There are two ways to exclude a potential juror from sitting on a jury.  The first is through a challenge for cause.  This is a request by one of the attorney to exclude a juror based on the fact that the lawyer believes that the juror cannot be fair and impartial. 

For example, in an OUI trial, a judge may exclude a juror for cause that has been in an accident with someone thought to be under the influence of alcohol.  This would be based on the fact that the juror’s experience may bias the juror against the defense.  Some judges may try to rehabilitate the juror to keep the juror on the panel by asking if the juror can set aside that experience and still be fair and impartial.  A judge should allow a defense lawyer to ask follow up questions to determine if the experience is so ingrained that it would start the defendant off at a disadvantage with respect to this juror. 

A recent case decided by the Massachusetts Appeals Court addressed the issue of when a judge abuses his discretion for not excluding a juror for cause.  The case was Commonwealth v. Chambers, decided on August 29,2018.  

   The Massachusetts Supreme Judicial Court will hear arguments this Friday September 7, 2018 in the case of Commonwealth v. Davis.      The case raises the issue when the police have probable cause to arrest based on a belief that someone is impaired by marijuana.  In this case, the defendant Davis was charged with Carrying a firearm without an FID card and drug possession with the intent to distribute.  He was found not guilty of Firearm offense, which carried an eighteen month mandatory minimum sentence, but convicted of the Drug possession with intent to distribute charges. 

       The Drugs were found during an alleged inventory search of the car.  The officers justified the search of the car based on the probable cause to believe that the defendant was operation under the influence of marijuana.  The issue is whether police have probable cause to arrest based on an odor of marijuana and other indicators that the officer observed. 

In this case, the evidence that the operator was impaired by marijuana was very weak.  The defense on appeal also challenged the issue of whether the inventory search was proper.  I submitted an amicus brief in this case on behalf of the National College of DUI Defense.  I am a member of the College’s amicus committee and have been a member since 2007.  Based on the officer belief that the defendant was under the influence of marijuana, the officer search the car and discover the evidence that was later used to convict the defendant of the drug charge.  

Should the Office of Alcohol Testing in Massachusetts responsible for calibrating and certifying the breath test be an accredited lab?  This is the next issue before Judge Brennan in the Massachusetts breath test litigation in the case of Commonwealth v. Ananias.

Judge Brennan recently granted the defense request for a hearing on this issue in the Ananias litigation.  The defense has requested that prior to the continued use of the breath test in Massachusetts that the OAT should seek accreditation.  In May of this year, I attended a seminar called Serious Science at the University of Texas Arlington Laboratory which was a five day program that focused on many of these scientific standard that will be at issue in the accreditation motion hearing.  

What does Accreditation mean?  

After the Massachusetts Supreme Judicial Court decided the case of Commonwealth v. Gerhardt, many wondered how the Commonwealth would prove OUI Marijuana cases in Court.  Charges involving OUI drugs, including marijuana are difficult to prove.  However, these cases are still being prosecuted in the court.

The SJC in Gerhardt did not exclude field sobriety tests, now referred to as assessments from being offered into evidence in Court.  It placed limitations on how this evidence can be presented to the jury and what its ultimate weight should be in assessing whether the Commonwealth has proven the case beyond a reasonable doubt.   OUI marijuana cases will be prosecuted based on the observations of the driving, the field tests, admissions of the person consuming marijuana, the smell of marijuana, evidence of drugs found in the car.

This case was the first case to hold that field sobriety tests are not scientific tests of impairment by marijuana and that a jury should get a cautionary instruction when presented with this evidence.  The Court also held that officers could not testify as lay witnesses that someone was impaired by marijuana. 

Why you may be able to vacate an Old OUI conviction in Massachusetts?  For the past two years, over 30 DelSignore Law clients have been involved in the breath test litigation in Concord District Court.  It was a 6:00 meeting with myself and a group of Massachusetts OUI lawyers where we discussed the upcoming litigation regarding the breath test source code.  At DelSignore Law, we initially joined approximately 30 clients to the litigation who took breath tests.  As the breath test litigation took additional time, more clients were joined to this statewide litigation.

The litigation took about two years, as every aspect of the machine was tested by the defense.  Judge Brennan ultimately ruled that the breath test had a reliable source code, that it was specific enough for alcohol and that the partition ratio was scientifically reliable.  He essentially rejected all of the defenses scientific attacks on the machine.  However, he made a major ruling that resulted in two years of breath tests being excluded from evidence.  Those were tests prior to September 14, 2014.  In his original ruling, the results were only presumptively excluded meaning that the Commonwealth could seek to introduce them. Ultimately, the breath tests were excluded in all of our cases that were part of the litigation as the Commonwealth was never able to meet this burden in court to admit the test results.

https://www.youtube.com/watch?v=n-9A_7l5Vkw

 The Massachusetts Supreme Judicial Court affirmed the dismissal of an OUI charge by a Superior Court judge after the officer did not issue a citation until 9 days after and the defendant did not receive notice until five or six months later.  

     The defendant in Commonwealth v. O’Leary was indicted on an OUI subsequent offense, meaning that it was greater than a Fourth offense.  His case involved a common situation that Massachusetts OUI Lawyers encounter.  He got into a one car accident and was taken to the hospital.  When the officer got to the hospital it appeared as though O’leary was intoxicated.  He admitted to a couple of beers, had bloodshot and glassy eyes as well as slurred speech.  

The officer informed the defendant that he would receive a summons in the mails for OUI.  The officer had to seek approval of the report and did not issue the summons until nine days later.  This was an important fact that came out at the motion hearing as the motion judge found no good reason for the nine day delay.  

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