Massachusetts Criminal Defense Lawyer Blog

‘Serial’ and what does Ineffective Assistance of Counsel mean in a Criminal Trial

March 5, 2016 | by Michael DelSignore

The Podcast ‘Serial’ follows the investigation of the trial of Adnan Syed in 2000. This Podcast has gained a following with its compelling look into the ineffective counsel of Syed’s attorney in failing to call an alibi witness. Ineffective assistance of counsel is a claim raised by a convicted criminal defendant that their attorney’s performance was so ineffective that it deprived them of the constitutional right guaranteed by the Assistance of Counsel Clause of the Sixth Amendment to the United States Constitution. Lawyers harm their clients when they do not provide effective assistance of counsel, and the mistakes are potentially career ruining. In Syed’s case, the harm came in the sentence of life imprisonment for the murder of his girlfriend. To this day, the mistakes of Syed’s counsel are being examined in the Maryland Court of Appeals.

A 17 Year Old Alibi

One of Syed’s attorney’s most harmful mistakes was when she failed to call as an alibi witness, crippling Syed’s defense. Alibi witness Asia Chapman claimed that she had a conversation with Syed at the library during the time prosecutors say the murder took place. Chapman was never contacted for her testimony, a move that Syed’s current attorneys say amounts to ineffective counsel. No alibi could be given for Syed, and therefore prosecution was able to convince a jury that it was possible Syed was able to be at the scene of the crime.

Opening Statements and Will I Tip off the Government as to my theory of defense

February 29, 2016 | by Michael DelSignore

How much detail should you reveal in your opening statement?

Some lawyers fear revealing their defense in the opening statement and allowing the Government to adjust their case based on the opening. That can occur; what I do to prevent that is focus on the facts that I know for sure I can prove in the opening, that the Government cannot dispute. Having a motion hearing, allows a lawyer to give a more detailed opening statement because the testimony is locked in.

I prefer to make as detailed opening statement as I can. I do not believe in the theory of holding back for fear of tipping of the Government for a few reasons; first, the Government, likely knows your theory of defense. Second, when you leave things out, you do not deliver as effective and confident opening statement. The more facts and details you can get into from the start the better. There has been research showing that a jurors begin to decide cases immediately. Most believe that by the time the Closing Statements are delivered, most jurors would know how they are going to vote. It is important to start getting jurors to accept your theory of the case from the start of the trial.

Massachusetts SJC Holds That A Violation While “On Release” Constitutes A Revocation Of Bail

February 26, 2016 | by Michael DelSignore

In a recent Massachusetts SJC decision, Commonwealth v. Morales, the Court confirmed its authority to revoke a defendant’s bail after being out “on release” and had defaulted by not appearing to his pretrial hearing and subsequently committed a new crime. The decision essentially means that when a defendant has a bail set to insure his appearance at a hearing, he is conditionally out “on release”. If the conditions are violated and he is not in custody after defaulting, he is still considered “on release” and therefore bail may be revoked.

The case arose out of Boston Municipal Court, where the trial judge decided that because the defendant defaulted, he was no longer “on release” within the meaning of G. L. c. 276, § 58, and therefore his bail could not be revoked. In August 2014, the defendant was arraigned in the Boston Municipal court on the charge of larceny of property over $250. The defendant was put on notice for bail revocation and was released on personal recognizance. At the subsequent pretrial hearing, the defendant failed to appear and a default warrant was issued. By April 2015, the warrant was still outstanding when the defendant committed a new crime of assault and battery of a family or household member.

During the defendant’s arraignment hearing for the new charge, the Commonwealth filed a motion to revoke the defendant’s bail or recognizance in the larceny matter and also requested bail in the new assault and battery matter. A judge from Boston Municipal Court denied the motion, reasoning that because he defaulted in the prior larceny matter he was no longer “on release” within the meaning of G. L. c. 276, § 58, sixth par. The Commonwealth filed a petition to appeal from the denial of its motion to revoke the defendant’s bail. The single justice reserved and reported the matter to the full court. The Massachusetts SJC disagreed with the lower court and remanded the case to county court.

Bill To remove license suspension for Massachusetts Drug offenses stalls in Senate

February 24, 2016 | by Michael DelSignore

Last month the House voted unanimously for a bill that would repeal the 1989 Massachusetts law requiring automatic license suspensions for drug offenses, regardless of whether or not offenses had a driving component. The Bill was passed by the Senate last year. However, Republican House members added an amendment to the Bill restoring the five year license suspension for drug trafficking charges. In an effort to uphold the purpose behind the Bill, the Senate added an amendment abolishing the drug trafficking exception, effectively repealing the House’s amendment and stalling the Bill.

The automatic license suspension for drug charges arose under a federal law created during the “War on Drugs” that called for automatic license suspensions for drug offenders but allowed states to opt out. 34 other states have repealed similar suspensions. As the law stands now anyone who has been convicted of a drug offense faces a six month to five year license suspension and additional fees to reinstate. The license loss is also reported on their Registry of Motor Vehicles record, which can be accessible by employers.

Oral Arguments in Utah v. Strieff: The Future of the Exclusionary Rule

February 22, 2016 | by Michael DelSignore

The Supreme Court will be back in action next week, and will hear a case about the future of the exclusionary rule when it hears the arguments of Utah v. Strieff on February 22^nd. The specific question is whether evidence seized incident to arrest on a minor traffic warrant, discovered during a concededly unconstitutional detention, is inadmissible under the “attenuation” exception to the exclusionary rule.

Breaking the Chain of Events

Evidence seized after an illegal search or detention may be admitted under three exceptions to the exclusionary rule:

(1) the independent source exception,
(2) the inevitable discovery exception,
and (3) the attenuation exception.

The attenuation exception applies where the police engaged in unlawful conduct, but the unlawful conduct was not the proximate cause by which the police obtained the evidence, because of an intervening circumstance breaking the causal chain. Under the attenuation exception, the intervening act is one that was made voluntarily by the defendant, such as a confession or consent to search given after illegal police action. The defendant’s voluntary act is sufficiently independent to break the legal connection to the primary violation, and therefor the evidence will not be excluded.

The 5 AM Miracle and Why Lawyers should Read it

February 12, 2016 | by Michael DelSignore

I read self improvement and motivational books all of the time. I think it is easy to say that these books are all essentially the same. However, many times the author will remind you in a new way of helpful things to improve your life or work or have you think differently about your day and goals. That is what Jeff Sanders does in his book The 5 AM Miracle, Dominate your day Before Breakfast.

While he suggests the benefits of waking up at 5 AM, the point of the book is not about the time you wake up, but that once you are up you have a plan and immediately being to take charge of your most important goals.

Sanders suggests, having an plan for your entire day to get the most out of it. He suggests having a list of morning habits to start your day.

The DUI Breath Alcohol Per Se limit should not be lowered from .08

February 8, 2016 | by Michael DelSignore

Lowering the legal limit should be rejecting as punishing social drinking; it would not have any impact on reducing serious DUI accidents as these are not being caused by individuals with breath test results under .08.

New evidence supports correlation between gastric bypass and higher breath test readings

February 3, 2016 | by Michael DelSignore

The results of a sobriety test, such as the Breathalyzer or blood test, frequently play a crucial role in the outcome of a drunk driving case. When assessing how reliable the sobriety test results may have been, it is important to consider the medical background of the client and any conditions that may have impacted their results.

Scientific evidence shows that weight loss surgeries, such as the gastric bypass, can cause a a significant increase in blood alcohol content for someone stopped and arrested for DUI for a variety of reasons.

The health risks and associated conditions of obesity are well documented in the media- from diabetes to cancer, overweight individuals often turn to high intensity exercise programs and extreme dieting in their attempts to lose weight. Although this works for some, many people may see no improvement with their new lifestyle practices and still struggle to lose weight. Such people may turn to weight-loss surgery. Weight-loss surgery is relatively common, the most notable being the gastric bypass. This surgery aims to shrink the stomach in an attempt to aide the patient in loosing weight. Although this surgery carries the risks associated with any surgery, it is relatively safe and has helped many people lose vast amounts of weight. However, few people may know of one risk relating to this surgery that is potentially dangerous – alcoholism.

Facebook Tag results in Jail time on Restraining Order Violation

January 29, 2016 | by Michael DelSignore

Facebook is frequently mentioned in Court cases involving violations of a 209A order in Massachusetts. Recently, I was in Marlborough District Court waiting for an OUI trial to be heard; in front of me were two trials regarding 209A violations allegedly involving Facebook posts. A case in New York illustrates how Facebook posts can lead to a violation of a restraining order.

Massachusetts Supreme Judicial Court to review accuracy of Field Sobriety Tests in OUI Marijuana cases.

January 27, 2016 | by Michael DelSignore

Field sobriety tests are commonly used in OUI alcohol cases. The Massachusetts Supreme Court will address, in the case of Commonwealth v. Gerhardt, whether these tests are accurate and reliable for when someone is arrested for OUI marijuana in Massachusetts.

The police have been using field sobriety tests to help them form an opinion as to whether someone is under the influence of marijuana. However, there is very little scientific evidence that these tests are accurate and reliable for someone impaired by marijuana. The tests were never studied to determine impairment with marijuana, rather they were studied only in relation to alcohol.

The case before the Massachusetts Supreme Court is going to review studies and literature showing that these tests are not very accurate for when someone is impaired by marijuana.