Massachusetts Criminal Defense Lawyer Blog

Tips for Law Students Preparing for Exams

September 28, 2012 | by Michael DelSignore

Law School can be stressful; one exam for the entire grade. Here are some tips on how to best prepare for exam day.

After having completed three years of law school at the University of Connecticut, I felt I got better understanding as I went along but it would have been helpful to know what I know now at the start of my first year.

Here is my advice to help you get off to a good start. While I believe it is important to outline your course material, read every case and the case notes, your exam will generally be applying the law to a new problem or issue that did not occur in any of the cases you have read. What you need to do is read current legal material related to the cases you are reading so you can see how the cases are being applied in court. If you try to expand your perspective beyond just memorizing the case law, your exam answer will have that extra insight that will make your exam stand out and earn you a better grade. What makes for an “A” exam, adding some flare to your answer that lets the professor know you understand the law and have something new and interesting way to apply it to the problem in the exam question.

Sixth Amendment confrontation clause case regarding statements to a child protection worker may reach the United States Supreme Court

September 10, 2012 | by Michael DelSignore

The case of Ricky Lee Allshouse v. Pennsylvania is on petition for certiorari before the United States Supreme Court raising the issue of whether the defendant was denied his right of confrontation under the Sixth Amendment by the admission into evidence at trial of his statements to a child protection worker.

Allshouse involves a case of child abuse on an infant where the infant’s brother told a child protection case worker about the abuse committed by the infant’s father. At trial, the State of Pennsylvania admitted the statements pursuant to a Pennslyvania statute authorizing the admission of the testimony as long as the judge finds it reliable.

The criminal defense lawyer objected arguing that the Sixth Amendment to the Constitution precludes the admission of these statements. The Pennsylvania Court affirmed holding that the purpose of the child protection worker was investigatory. The Pennsylvania Supreme Court held that the statements were nontestimonial because in response to an ongoing emergency.

Lab Flaws Leave Thousands of Massachusetts Criminal Cases in Jeopardy

September 6, 2012 | by Michael DelSignore

The bottom may have fallen out on thousands of criminal cases relying on drug testing analysis conducted at state labs, after a chemist was found flouting testing protocols. Both she and two of her supervisors have been placed on administrative leave, leaving thousands of convictions and ongoing criminal cases open to the possibility of dismissal.

Massachusetts criminal defense lawyers know that there are many criminal cases in which conviction may be contingent on whether drugs were found in a person’s system, what kinds of drugs and in what levels.

One example are DUI cases alleging prescription or illegal drug use.

Other times, laboratory results are used to determine whether a substance is an illegal narcotic. So if police find a white, powdery substance in a vehicle during a traffic stop, a conviction for a charge of possession of cocaine is going to be based largely on whether chemists proved that the substance was cocaine.

This is true for many aspects of a case. An experienced defense attorney will challenge evidence presented or allegations made by law enforcement officers, experts, alleged victims and other witnesses. One weak link can be enough to force a reduction or dismissal of charges, or at least a favorable plea deal. Failure to challenge the charges against you means the state is relieved of having to prove much of anything.

What happened here was that a single chemist, who has been working at the Massachusetts State Police crime lab since 2003, apparently had mishandled drug evidence and attempted to alter an evidence log. She reportedly failed to record the movement of drugs in and out of the evidence room. When supervisors discovered a problem, the errors were mysteriously fixed the following day.

The chemist resigned in March, and although she hasn’t been charged with anything, the state’s Attorney General’s Office has opened a criminal investigation into the matter. The woman’s husband was quoted by media as saying she is being used as a “scapegoat,” suggesting problems at the lab were far more widespread than the misdeeds of one person.

While officials believe 90 samples of drugs were jeopardized over the course of one day, the implications are that the problems may be systemic.

Police are working to gather a compilation of cases the chemist worked on during her time there. They and prosecutors will then be expected to go back and re-examine whether her work was central to the case. If so, they will need to inform defense attorneys, who can then either file a motion for a new trial or file a motion to vacate a guilty plea.

In addition to jeopardizing the prosecution in these cases, it also is likely to slow the progress of cases that are ongoing, as state officials work to sort through the mess. It also will no doubt allow defense attorneys to raise questions in the future with regard to the accuracy of state lab results.

Defense attorneys in Boston understand that many government crime labs, due to a lack of funding and lowered staffing levels, are working under difficult and high-pressure conditions. However, when a person’s freedom is on the line, we expect a higher standard.

At the end of the day, lab workers have an inherent bias because they are essentially working for law enforcement (in this case, the Massachusetts State Police). That’s why defense attorneys will often request an outside, independent source for testing in cases where that evidence is key. Those who work in the industry say that safeguards simply aren’t in place to ensure that lab bias doesn’t consistently skew in favor of prosecutors.
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Defending Drug Charges in Massachusetts involving anonymous 911 in light of recent court decision

August 24, 2012 | by Michael DelSignore

Drug crimes in Massachusetts can raise 6th Amendment Confrontation Clause issues just as in other types of criminal offense. A recent decision from the 5th Circuit Court of Appeals demonstrates the issues that arise for Massachusetts criminal defense lawyers in interpreting their client’s Sixth Amendment right of confrontation.

The case of United States v. Polidore, from the 5th Circuit involved a series of drug deals on the same street location, a nearby individual made two separate anonymous calls to 911 reporting the apparent drug activity and a description of a PT cruiser which appeared to be involved in the exchanges. Police were soon dispatched to the scene, where they found an unoccupied PT cruiser that fit the description given in the calls. Upon closer inspection, police noticed three unmistakable rocks of crack cocaine that had been placed in the driver’s side compartment. Police then watched the car until the owner returned. This instigated a short chase, which resulted in the eventual arrest of the cruiser owner.

During the trial, portions of the initial 911 calls were used to exemplify the caller’s responses when answering the operator’s questions for further details on the apparent drug activity. As it were the calls that lead to the defendant’s arrest, the defendant asked for this evidence to be inadmissible. The defendant claimed that his Confrontation Clause rights were being violated, as the anonymous caller was not present to testify at trial as a witness. However, the court found that the 911 calls were in fact, non-testimonial in nature and therefore did not violate the Confrontation Clause rights under Crawford v. Washington. The 911 operators did not possess any ulterior motives in their interrogation, they were simply performing their expected duties in answering an emergency call. The court claimed that:

Massachusetts DUI Watch: Route 24 Enforcement One Hot Spot this Labor Day Weekend

August 23, 2012 | by Michael DelSignore

At least six more OUI arrests in Massachusetts have occurred along Route 24 since authorities announced increased enforcement in the wake of a string of serious and fatal traffic accidents. Motorists can expect DUI roadblocks and other drunk driving enforcement measures through the upcoming Labor Day weekend.

The Boston Herald reported the arrests over the weekend raise to 33 the number of drunk driving arrests in Southern Massachusetts since the increased enforcement began a month ago.

As we reported recently on our Massachusetts DUI Attorney Blog, authorities increased enforcement after more than 630 crashes claimed 11 lives and injured countless others last year. That averages out to more than two crashes a day.

The Express-Times reports rising gas prices are not expected to impact Labor Day travel. AAA reports prices are up about 40 cents since July 1, though that’s still 22 cents a gallon lower than the peak price in April. Gas is expected to average $3.75 a gallon nationwide and more than 85 percent of travelers are expected to drive to their destination. The Boston Globe reports some 33 million travelers will hit the nation’s roads.

Labor Day is the last of the trio of summer holidays (Memorial Day and Fourth of July), that see the most travel, the most arrests for drunk driving, and the highest number of serious and fatal traffic accidents.

When law enforcement targets an area for drunk driving enforcement, or conducts increased enforcement periods around travel holidays, a number of consequences may result.

-Officers on the lookout for drunk drivers, typically find them. No surprise there. But the predisposition to making a stop or initiating a DUI arrest may give rise to an arrest even though the evidence would be insufficient to prove the case beyond a reasonable doubt if brought to trial. Increased enforcement means that police officer may arrest individuals who drank responsibly but simply could not perform balance and coordination test requested by the officer.

-Authorities may not conduct sobriety checkpoints or law enforcement roadblocks in accordance with the law. In fact, arrests in the wake of such stops typically provide more avenues of challenge for an experienced Brockton OUI attorney.

-Auxiliary, volunteer or part-time personnel may be put on active road duty. These officers may lack proper training and recency of experience, which can give rise to a host of legal challenges.

-Motorists may be unfairly targeted leaving concerts, venues or events.

Most motorists understand drunk driving is no longer a minor offense. However, those charged are also likely to have little experience with the criminal justice system. As such, they may fail to understand the seriousness of their situation. Job loss, jail time and lengthy driver’s license suspensions are all common results of a drunk driving conviction. And, financially, the cost of a drunk driving conviction nationwide can approach $20,000, counting skyrocketing insurance premiums, court costs, fines, supervision fees and other expenditures.

For repeat offenders, or for those involved in an accident, the consequences can be even more serious.

-OUI Serious Bodily Injury is punishable by up to 2.5 years behind bars and a mandatory two-year suspension of your driving rights.

-OUI Motor Vehicle Homicide is punishable by up to 15 years behind bars and a 15-year loss of your driver’s license.

Of course, your best option is to designate a driver, take public transportation, or find a sober ride home this weekend. But if you do end up under arrest, exercise your right to remain silent and contact an experienced defense lawyer in Massachusetts as soon as possible.
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Epstein Case Highlights Massachusetts Stalking Charges – Stranger Danger & Domestic

August 11, 2012 | by Michael DelSignore

A Massachusetts woman has been charged with two counts of felony stalking of the former general manager of the Boston Red Sox, now president of the Chicago Cubs.

Media reports indicate the Canton woman was arrested a few blocks from Theo Epstein’s home, where she told police she was seeking him out to invite him to church. In and of itself that wouldn’t be a crime, but the woman had reportedly been warned about stalking his home.

Massachusetts criminal defense lawyers know that despite the headlines often made in cases of celebrity or high-profile stalking incidents, which often involve an element of mental illness, the majority of stalking allegations stem from a break-up or divorce.

In many cases, it can be a misunderstanding or one person just has a hard time letting go.

And the fact of the matter is, it’s fairly common. The Bureau of Justice Statistics reports the following:

1. In the U.S., 14 out of every 1,000 people reported being victims of stalking;
2. For people who were divorced or separated, the rate of stalking was the highest – 34 out of every 1,000;
3. About 1 in 4 alleged stalking victims reported being the target of some form of cyberstalking, such as e-mail (more than 80 percent) or instant messaging (35 percent);

The penalties for a stalking conviction under Massachusetts law are serious.

Massachusetts law, specifically Part IV, Title I, Chapter 265, Section 43, addresses stalking and its punishments. This statute defines stalking as any willful and malicious engagement in a pattern of conduct or series of acts over a period of time that is directed at one person that either “seriously alarms” or “annoys” that person AND would cause a reasonable person to suffer emotional distress. The law also similarly encompasses threats that are intended to make the person fear either imminent physical injury or death.

This is a felony, and if convicted, a person can serve up to five years in prison and pay up to a $1,000 fine.

A lot of times when we think of stalking, collectively we’re picturing someone physically following another person around with binoculars. But of course, that’s an antiquated notion (although it would still count) and the law now addresses various forms of electronic communication too.

For example, the conduct that would be considered stalking under the law includes any actions carried out or threats made by mail, phone, e-mail, faxes, instant messages or any other electronic or digital communication.

So for example, if your girlfriend breaks up with you and you send her a series of Facebook messages meant to intimidate her or threaten her – even after you’ve been warned to stop – you can be charged with stalking, even if you never go near her.

It’s this misunderstanding about stalking laws that can sometimes get people in trouble.
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Massachusetts Domestic Violence Defense: Not Just for Spouses

August 3, 2012 | by Michael DelSignore

A Brockton women was recently jailed after an argument with her sister reportedly led to one slashing the other with a kitchen knife.

Our Massachusetts domestic violence defense lawyers can often help a defendant facing charges of assaulting a family member. Scant evidence can lead to an arrest — but whether you are convicted is another matter entirely.

While we typically think of domestic violence situations in terms of spouse-on-spouse, under Massachusetts General Law 209A, it can involve any family member or household member, and it includes violence against someone you may be dating or have dated.

Family or household member means:

1. Anyone to whom you are or were married;
2. Anyone with whom you are living in the same residence;
3. Anyone with whom you are related by blood or marriage;
4. Anyone with whom you have a child, regardless of whether you were ever married or in a long-term relationship with.

In some cases, an arrest will be made on the spot, while in others, officers will take more time to investigate and then return with a warrant to make an arrest. Regardless of the method, the end penalties are equally serious.

In this case, the sister who was slashed reportedly suffered minor injuries. No further details were given about the incident, as it is currently under investigation.

Domestic violence convictions are unique from other assault convictions because there is the potential to greatly disrupt your life, than a simple assault conviction. A conviction for domestic violence can impact not only your personal relationships, but potentially your professional relationships as well.

The alleged victim can also request an abuse protection order against you, which could prohibit you from all contact and even from being in certain places at certain times where it is likely the alleged victim might be. Violation of this order is considered an additional criminal offense.

With regard to your professional life, public employees are at particular are at risk. State employees, for example, are under a zero tolerance policy with regard to sexual assault and domestic violence. Executive Order 491, signed back in 2009, establishes that state employees can face disciplinary action from their employer if convicted of a domestic violence offense. This can range from an oral warning or reprimand to a suspension or even termination. This applies regardless of whether the alleged incident happened at work.

What’s more, the executive order allows that the employer can use a prior domestic violence conviction from within the last five years when deciding whether or not to hire a candidate. That’s a strike that many would-be employees can’t afford in this current economic climate.

Although the executive order only involves government employees, many companies have similar policies.

It’s not uncommon for disputes to arise among family members or those living in the same household. When police only have a limited amount of information to go on, they often get it wrong as to who was the aggressor or the exact facts of the case.

Simply pleading guilty to get it over with is not a smart move, and won’t help you put an unpleasant situation behind you any faster.
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Warning: Expect More Police on Rt. 24

August 2, 2012 | by Michael DelSignore

A series of serious and fatal crashes on Route 24 and I-195 have prompted state troopers to boost their patrol efforts on both highways, hoping to nab speeders, drunk drivers and careless motorists.

Massachusetts DUI lawyers know that more patrols are likely to equal more arrests. It’s important to understand the background of why law enforcement is targeting this area, as well as what you should do if you’re stopped.

A recent two-part series by The Enterprise newspaper detailed what has been a treacherous year, particularly on Route 24. Drivers spoke of how they drive defensively because they felt it often a matter of life or death on that stretch of highway.

In fact, the newspaper staff, after combing through four years worth of crash data, determined that it’s one of the most dangerous roads in the state. In the last year, there have been 630 crashes on Route 24, resulting in 11 deaths and many more injuries. That averages out to about two crashes a day.

Law enforcement say the reasons behind these crashes vary, but mostly put blame on certain dangerous driving habits, including speeding, impaired driving and wrong-way driving.

Certainly, reckless drivers are out there. However, Massachusetts DUI attorneys know that a lot of it also has to do with poor road design. Even the newspaper reported that when the road first opened back in 1952 as the Fall River Expressway, there were approximately 30 exits over a span of just 43 miles. Most of those ramps are abrupt, allowing motorists just a few car lengths to either speed up and merge or slow down and avoid a collision. Sure, some people go too fast, but poor road design can be a factor in a crash – and in some cases, a possible defense. Drivers could be doing everything right, but accidents will still happen.

Some motorists interviewed by the paper indicated that scofflaws were to blame, as was the lack of police enforcement. So now, law enforcement is answering that claim by tripling their patrols on both Rt. 24 and I-195, particularly on weekend nights through September. When increased enforcement is announced, it also means there is an increased probability of being stopped. When law enforcement is predisposed the make traffic stops and take enforcement action, motorists are also at increased risk of questionable or unfair arrest.

Of course, the best way to avoid a DUI is not to drink before you get behind the wheel. The legal limit in Massachusetts for blood alcohol content is 0.08 percent, but the problem is, many people have a hard time telling once they’ve reached that limit.

Because the chances of your getting pulled over and arrested on Rt. 24 and I-195 are increased, here are some things to keep in mind if you get stopped:

1. Reduce your chances of being pulled over by keeping your vehicle in good working condition. This means making sure your rear and headlights are working, you don’t have illegal window tint and your vehicle is generally well-maintained. Also, make sure that your license plate is properly renewed and your license, registration and insurance is current.

2. Remain calm and be polite. Almost everyone is nervous when getting pulled over, but try to maintain your composure. Remember too that being rude will probably get you nowhere.

3. Don’t be combative, but know that you have the right to decline to take a field sobriety test, take a breath test and to tell the officer whether you’ve been drinking. Understand that under the Massachusetts implied consent law, if you refuse a breath test, you will likely be arrested and lose your license for at least 180 days. This statute is found under Massachusetts General Laws 90-24(f). On the flip side, there will be less evidence to prosecute you for a DUI or OUI.

4. If you are arrested, do not make any statement to police or investigators without an experienced DUI attorney present. Contact an attorney as soon as possible.
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Dangerousness Hearing Set in Taunton, Massachusetts Sex Case involving former Teacher

July 21, 2012 | by Michael DelSignore

The path has been cleared by the Massachusetts Supreme Court for a dangerousness hearing in the case of a teacher accused of sex with three, 14-year-old female students.

Massachusetts criminal defense lawyers understand that the issue in this case was the question of whether lack of evidence regarding the presence of physical force – or threat of physical force – precluded the necessity of a dangerousness hearing.

Ultimately, Massachusetts Supreme Court justices ruled that the crimes of which the teacher is accused inherently would have required at least some level of physical force on the defendant’s part in order to be carried out – i.e., penetration. This was regardless of the fact that there does not appear to be evidence of any other physical force in connection with the alleged crimes.

To help you better understand, we need to first explore what a dangerousness hearing is and why they are requested. Dangerousness hearings, as spelled out in M.G.L. Chapter 276 Section 58A, are court hearings held after arrest but prior to trial for a person accused of certain felony crimes involving force or threat of force.

The idea is to determine whether the state should hold you – for a period of up to 90 days – based on the belief that you may be a threat to society. It’s separate from a bond hearing.

For example, in this case, the 33-year-old defendant had been released on bond, following his arrest on five counts of enticing a child under the age of 16, two counts of disseminating obscene matter to a minor, four counts of aggravated statutory rape and one count of reckless child endangerment. Upon his release, he was fitted with a monitoring device, and he continues to await trial.

However, the prosecutor had sought a dangerousness hearing in an effort to get him back into law enforcement custody for at least three months.

In many cases, a client is not released before such a hearing is requested — but instead remains behind bars without bail. It’s important to note that a defendant can – and in most cases should – petition the court as to the necessity of a dangerousness hearing in the first place.

And that’s what happened here.

When prosecutors first requested the hearing, the lower judge ruled that the aggravated statutory rape charge didn’t meet the terms as spelled out in M.G.L. Chapter 276 Section 58A because there was no use, attempted use or threatened use of physical force.

However, prosecutors appealed that decision to the Massachusetts Supreme Court. The Commonwealth’s high court reversed the lower court’s ruling, stating that some force would have been necessary to consummate the crime.

What that means is that the dangerousness hearing can move forward.

What’s likely to happen? While it’s difficult to predict the outcome in any case, some of the factors that will be considered, as in any dangerousness hearing, are:

The nature and the circumstances of the alleged crime;
Whether the individual would pose a great risk to the community if released;
Whether the individual has a history of mental illness;
What type of employment record the person has;
What family ties the accused has in the community;
What sort of risk exists that the individual may threaten witnesses or otherwise interfere with the investigation if released;
Whether the accused has a history of alcohol or drug dependency;
What is the reputation of the defendant;
What is the criminal history and prior bail violations of the defendant.

Recent United States Supreme Court case, Williams v. Illinois, makes a Sixth Amendment Confrontation Clause Decision.

July 5, 2012 | by Michael DelSignore

As a Massachusetts OUI Attorney, the recent decision of the United States Supreme Court has importance consequences in defending drunk driving case involving blood and breath test evidence. The Williams v. Illinois decision is noteworthy as to how divided the court was in its reasoning finding that the defendant’s Sixth Amendment rights were not violated. The decision was a 5-4 decision that could impact the admissibility of blood and breath test results for individuals charged with DUI in Massachusetts.

In Williams v. Illinois, the United States Supreme Court issued a decision on the Sixth Amendment Confrontation Clause that makes the Court’s interpretation of this Constitutional provision unclear and confuses this area of law for criminal defense lawyers, prosecutors and trial judges. In this 5-4 decision, 4 justices in what is referred to as the Plurality joined the decision of Justice Alito and Justice Thomas concurred separately in the judgment.

In the Williams case, the State called an expert witness who testified that a DNA profile produced by an outside laboratory, matched a profile produced by the state police lab using a sample of the defendant’s blood. The defendant contended that the expert’s testimony violated the defendant’s right of confrontation when the expert testified that the DNA profile provided by the laboratory was produced from semen found on the victim’s vaginal swab.