Massachusetts Criminal Defense Lawyer Blog

1st Amendment Free Speech Protection to Revenge Porn laws

September 3, 2020 | by Michael DelSignore

As a Massachusetts criminal defense lawyer, one of the more interesting defenses to a criminal charge is a First Amendment attack on whether the law is Constitutional. Recently, there have made some First Amendment challenges to the Involuntary Manslaughter Statute in Massachusetts in the Michelle Carter case. The Massachusetts Supreme Court ultimately rejected that claim finding that the involuntary manslaughter statute punished conduct and was not punishing someone for their viewpoint, but was permitted regulation of conduct that indirectly impacts speech. Revenge Porn Laws have been challenged on First Amendment grounds. The United States Supreme Court may hear a case from Illinois that deal with the criminalizing so called Revenge Porn and how it can comport with the requirements of Free Speech under the First Amendment. The case is Bethany Austin v. State of Illinois, and the filing can be found on the Scotus Blog.

How did the State of Illinois try to criminalize Revenge Porn?

Illinois passed, like many other states a Revenge Porn Law. The statute precludes online dissemination via the internet of photographic, film, videotape, digital recordings or depictions or portrays of another person engaged in sex act or with their intimate parts exposed. The Act covers any circumstance where a reasonable person would know that the person wanted the images to stay private and published them without consent.

1st Amendment case involving free speech and social media before the United States Supreme Court

August 31, 2020 | by Michael DelSignore

The United States Supreme Court may hear a case that involves the intersection of the 1st Amendment right to free speech with the right to post on social media. The case is Hunt v. Board of Regents of the University of New Mexico which may set a legal standard for students’ freedom of speech when they use social media — an issue that has frequently been litigated in recent years with no clear legal standard. The issue in this case is whether a student’s outrageous and inappropriate Facebook post was a content based restriction on freedom of speech that is prohibited by the First Amendment regardless of how offensive the message.

What did Paul Hunt say on Facebook to incur punishment by the University?

Paul Hunt was a 24-year-old medical school student at the University of New Mexico School of Medicine in 2012. He stated that Democrats were “[d]isgusting, immoral, and horrific,” and “sick, disgusting people.” He said Democrats were “WORSE than the Germans during WW2,” Hunt posted a comment on his personal Facebook news feed stating Democrats view on abortion were “disgusting, immoral, and horrific.” He said Democrats were “WORSE than the Germans during WW2,” The comment was reported to administrators at the medical college, who told Hunt he was in violation of the schools “Respectful Campus Policy,” which made it a punishable disciplinary offense to engage in “untrue allegations, unduly inflammatory statements or unduly personal attacks.”

Does the Fourth Amendment prevent police from looking into your house from your property?

August 24, 2020 | by Michael DelSignore

Is your “semiprivate” area in your home’s curtilage protected from prying eyes?

The Fourth Amendment protects all Americans from unreasonable searches and seizures. Courts define what that means everyday in terms of how far Fourth Amendment protections are extended. One case that raises an interesting issue is Cyde S. Bovat v. State of Vermont. This case may be heard by the United States Supreme Court as the defendant has filed a writ of certiorari.

The Question presented in Clyde S. Bovat v. State of Vermont was whether a police officer can access “semiprivate” areas within a home’s curtilage to conduct an investigation without a warrant.What happened in Clyde?

6th Amendment right of Confrontation and Mental health records in Sexual Assault cases

July 24, 2020 | by Michael DelSignore

Supreme Court has its eye on mental health record privilege

A Colorado case involving a dispute over murder versus suicide begs the question: are mental health records absolutely subject to psychologist-patient privilege, or is there a set of circumstances where they can be revealed to the accused to aid in defense? The Supreme Court is awaiting briefing in Perez v. Colorado, 19-1357.

What is psychologist-patient privilege?

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

July 4, 2020 | by Michael DelSignore

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.

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

June 29, 2020 | 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.

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

June 5, 2020 | 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.

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

May 29, 2020 | 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.

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

May 17, 2020 | 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

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

May 13, 2020 | 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.