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A Massachusetts Attorney was reprimanded for a facebook post about his status.  Being friends with many lawyers in Massachusetts and all over the country, the attorney’s facebook post was typical of many attorney posts that I have seen on my newsfeed.  The Massachusetts Board of Bar Overseers found that this case violated the rules of professional conduct.

It seems so innocuous.  An attorney updates his public Facebook page stating: “Back in Boston after appearing in Berkshire Juvenile Court in Pittsfield on behalf of grandmother who was seeking guardianship of six-year-old grandson and was opposed by DCYF yesterday.  Next date – 10/23.” But is it so innocuous?  Is the Facebook post simply an update of the day in the life of an attorney? Or is it enough information to run afoul of the Rules of Professional Conduct. On November 6, 2019, the Massachusetts Board of Bar Overseers (BBO) publicly reprimanded the attorney who wrote this post.

This is the type of situation every attorney must navigate daily. Social media forums allow attorneys to connect with potential clients, advertise the types of law practiced, comment on new case law, etc. Regardless of an attorney’s age, experience, or length of practice, an attorney is required to stay up to date on new technology (Rule 1.1).  In today’s world, it could be argued that Facebook, established in 2006, is not a new technology, and all attorneys should be aware of the pitfalls of any client-related posting on Facebook.

Narcan: Not Just For Criminal Overdose

As early as the 1960s, the drug, Naloxone, commonly known as Narcan, has been widely used to reverse the effects of opioid overdose. Medical personnel use Narcan to revive patients who have overdosed on opioid-based drugs. In criminal Driving Under the Influence (DUI) cases, prosecutors try to use evidence of the revival by Narcan to support a DUI charge. The attempt to use Narcan as evidence of DUI is problematic for many reasons.

To understand the problems with the introduction of Narcan use as evidence, it is important to understand how Narcan works. A person who overdoses on opioid-containing drugs will suffer from an excess of opioids blocking the opioid receptors in the brain, causing the shut down of the body’s nervous and respiratory systems. Narcan, at least temporarily, takes the place of the opioids and prevents respiratory failure, but should be followed up by other medical intervention. More recently, due to Narcan’s simple administration techniques and minimal side effects, many states have approved Narcan administration by lay people who are close to those regularly using or addicted to opioids. Lay people or medical personnel may use Narcan to save the life of a person who recently overdosed, either intentionally or accidentally, on opioids.

Recently, the Supreme Court of the United States decided three cases that require a new look at determining the standard for consent under the Fourth Amendment to the Constitution. In Missouri v. McNeely, the Court held that the taking and testing of a person’s blood could not be done without probable cause and a warrant unless there is some exception.  The Court further held that a search incident to an arrest cannot justify a warrantless blood draw in the case of  Birchfield v. North Dakota.  Finally, in Mitchell v. Wisconsin, a majority of the Court held that implied consent statutes do not give unfettered consent to a search to draw blood under the Constitution.

Given these decisions, the Appeals Court of Massachusetts reexamined how these cases impacted the decision in Commonwealth v. Dennis.  In this case, officers arrive at the scene of an accident and find the defendant behind the wheel.  At the scene, the defendant admitted that he had been drinking, there were empty alcohol containers in the car, and the officer observed the smell of alcohol on the defendant.  Because of his condition, officers transported him to a medical center.  After that, they placed him under arrest.  The officer attempted to get the defendant’s consent for a blood draw, but he was not medically cleared to give his consent.  Two and one-half hours later, the officer read the defendant the rights and consent form. Of significance, the request is only for a “chemical test.” It does not “specify that the “chemical test” will be on blood, as opposed to breath, urine, or anything else…”

The first step in evaluating whether a defendant has consented to a blood draw when there is probable cause for his or her arrest is to determine if the blood draw requires a warrant or are there exigent circumstances that excuse the police from obtaining a warrant.  Just because alcohol will dissipate from the blood the moment a person stops consuming alcohol does not automatically mean that there are exigent circumstances.  This was the ruling on Missouri v. McNeely.

The Massachusetts Supreme Judicial Court upheld the trial court’s decision to allow two witnesses’ identification of a robbery suspect as admissible evidence despite the lack of protocol and questions surrounding the identifications’ reliability.  The SJC alternated the procedures going forward requiring an instruction prior to the identification as in Line up identifications. The case adopting this new rule is Commonwealth v. Christian German decided November 13, 2019.

The case involved a robbery that occurred as a restaurant owner and three employees were leaving the restaurant late at night. As the women exited the restaurant, one of them got in the front seat of a waiting taxi. The other two employees waited as the owner locked the door. A man approached the three women standing outside of the restaurant, demanding their belongings. While one of the women threw her belongings on the ground, the owner ran around the corner to her vehicle to call 911. The robber then followed the other two women across the street, continuing to demand their property. Men on a nearby rooftop yelled at the robber, and the robber fired a gun in their direction and then left. When police arrived, two of the women had left in the taxi, while the owner and one employee remained to speak to police. After searching the area, officers found the suspect and detained him. One officer told the owner and employee that officers had detained a man, although they did not know if he was the robber, and that they needed witnesses to indicate whether or not he was the robber. While the officer wanted to transport the women one at a time to see the detained suspect, the women insisted that they would not go unless they stayed together and if assured that the suspect would not be able to see them.  The officer acquiesced and drove the two women to where the man was detained. Without any prompting, upon the officer pointing the police cruiser’s headlights at the suspect, both women simultaneously stated that the suspect was the robber and that they were 100% certain.

At trial, defense counsel argued that the women’s identification was improper where the women identified the man while sitting in a police cruiser together, not separate, and where the police officer did not provide adequate instructions prior to eliciting the “showup” identification. Defense counsel also argued that they should be allowed to introduce expert testimony that the witnesses’ degree of certainty of the suspect’s identity was questionable.

What is Involuntary Manslaughter in Massachusetts?  

Involuntary manslaughter is an unlawful killing base on wanton and reckless conduct.  In both, the Carter and Inyoung You cases, a major issue is whether the defendant had fair notice under the due process clause that there conduct was criminal.

The case of In Young You involved her sending an extraordinary under of text to her boyfriend, 47,000 and a hundred of them told him to kill himself and go die.  90 Minutes before his graduation the 22 year old biology major jumped from the garage killing himself.  

The Massachusetts Supreme Judicial Court allows a juror to sit who was equivocal on whether the jury could be fair and impartial in a case of sexual assault on a child.  You wouldn’t loan money based solely on a borrower’s promise to make payments “to the best of their ability.” A relatively equivocal statement such as this can be sufficient to establish the impartiality of a prospective trial juror. The recent decision in ​Commonwealth v. Rios,​ No.17-P-690,Mass.App.Ct.(November12,2019)(slipop.),illustrates that the credibility of the statement of fairness is equally as important as the statement’s verbiage when determining the impartiality of a prospective juror.

It is without question that individuals charged in criminal matters have a right to have their case heard by an impartial jury. Thus, trial courts have an obligation to ensure that prospective jurors can remain impartial prior to being selected to serve in a particular case. “[A] juror may not stand indifferent” when concerns arise that a prospective juror may make decisions based on issues extraneous to the case. ​ And it is an abuse of the court’s discretion to “empanel a juror who will not state unequivocally that he or she will be impartial.” ​Commonwealth v. Colton,​ 477 Mass. 1, 17 (2017).

Ruling in the Rios Case

A New York Times article by Stacey Cowley and Jessica Silver-Greenberg confirms what Massachusetts OUI lawyers and defenses attorneys everywhere have been arguing for years, that breath test machine are often inaccurate and unreliable.  The Times found that these machines, a “linchpin of the criminal justice system,” are, at best, unreliable. In its investigation, The New York Times found evidence that the machines’ internal code was flawed, creating rounding errors that pushed results over the legal limit – 0.08 or higher. Further, the machines are required to be calibrated; often, this never happened. In some cases, calibration records were completely faked.

Defective Design = Reasonable Doubt: Experts in Washington find numerous problems with breath test machines and results

At least one manufacturer – Dräger, a German company – has repeatedly blocked efforts to review their software code as well as any reports regarding the machines. A judge in Washington granted a request from defense lawyers to have the code evaluated by an outside expert. Robert Walker and Falcon Momot, described as “veteran programmers and security experts,” wrote a report titled, “Defective Design = Reasonable Doubt.” They shared the report with defense attorneys at a conference. But Dräger demanded that the report be destroyed by them as well as anyone with a copy. The New York Times was able to obtain a copy that had escaped destruction; it stated that Dräger’s Alcotest 9510 machine was “not a sophisticated scientific measurement instrument” and that it did “not adhere to even basic standards of measurement.” Instead, the machine rounded up at least some of the results. Further, these machines did not account for the temperature of the person’s breath. Samples above 93.2 degrees (as most breath samples are) often cause inaccurately high readings. This is because Washington opted not to pay the extra money for a sensor that would measure breath temperature and allow the machine’s software to account for it. Washington was not alone.  Massachusetts has not paid for the additional feature to account for breath temperature, only the State of Alabama has this added feature for enhanced accuracy of results.

Recent charges filed against a former Boston College Student are similar to the landmark Michelle Carter case where the SJC found that passive conduct of sending text messages could constitute involuntary manslaughter, despite the fact that Carter was not present at the time of death in that case.  Inyoung You, 21, was recently charged with involuntary manslaughter in response to an incident where her boyfriend, Alexander Urtula, 22, jumped from a parking garage killing himself just only hours before his graduation from Boston College. Authorities stated that You, who was also a Boston College student, was “physically, verbally, and psychologically abusive” towards Urtula during their 18-month relationship.

According to news reports, You was present at the parking garage when Urtula jumped because she had tracked his location.  Prosecutors said that You repeatedly text Urtula encouraging him to commit suicide saying such things as, “go kill yourself” or “go die” and making statements that You, Urtula’s family, and the world would be better off without Urtula.

Prosecutors contend that You was aware of Urtula’s depression and describe a pattern of abuse and manipulation throughout the relationship in which You allegedly exercised “total control” of Urtula both mentally and emotionally by the demands and threats she made to him.  In the two months before Urtula’s death, You sent more than 47,000 text messages to Urtula in which she told him to kill himself “hundreds of times,” according to Rollins.

Like all things in the law, the answer to the question “is this a seizure?” is “it depends.”  A seizure, under criminal law, is similar to being stopped or detained.  The Massachusetts Declaration of Human Rights and the United States Constitution protect citizens from unreasonable seizures.  A seizure does not mean being arrested, but means that a person does not feel free to leave from police presence.  Courts use a “reasonable person” standard when reviewing whether a seizure occurred; basically, courts look at the situation and determine whether, under all of the circumstances, the officer has used their authority to the point that a person would feel that they are required to follow the officer’s commands.

Last week, the Massachusetts Supreme Judicial Court decided Commonwealth v. Matta.  In this case, Matta was a passenger in a car.  The car had been the subject of two phone calls from unknown sources to the Holyoke Police, who reported that someone in the car had placed a gun under the seat.  Without having a warrant to search or arrest, or even probable cause to detain, the police begin to investigate.  Responding to the call, Holyoke police department  found Matta’s car parked in an area that the Supreme Judicial Court described as being “known for violent crime, drug sales, and shootings,” and pulled in behind it, without lights or sirens.

As the officer was getting out of his patrol car, Matta got out of his. The officer observed him grab at the right side of his waistband with both hands and adjust the waistband, then walk toward some bushes away from the sidewalk.  The officer said something to the effect of “Hey come here for a second” to Matta, who made eye contact with the officer, and then began to run.  The officer chased Matta, and yelled at him to stop.  During the chase, Matta threw a bag of what was later found to be heroin over a fence, presumably so the police wouldn’t find it on him if he was caught.  Matta eventually tried to scale a fence, and was captured.

Is Google Map evidence admissible in a jury trial?  An appeals court in Florida recently said “not necessarily” when it reviewed this question in City of Miami v. Kho.  

Juanita Kho sued the City of Miami for negligence after a trip-and-fall accident on a Miami sidewalk in 2010.  The sidewalk Juanita tripped on had an asphalt patch that was one-and-a quarter inches lower than the adjoining concrete slab.  Juanita alleged that is what caused her to fall, and that the difference in elevation was a “dangerous and defective condition.”

In order to win her case, Juanita was required to prove that Miami had either actual or constructive knowledge of the sidewalk’s condition at trial.  Unable to prove that Miami had actual knowledge of the condition of the sidewalk, she sought to prove constructive knowledge using a Google Maps photograph of the sidewalk dated November 2007 to show that the “dangerous and defective condition” existed then and that Miami should have known about it when she tripped in 2010.

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