Massachusetts Criminal Defense Lawyer Blog

Breathalyzer source code hearing in Massachusetts drunk driving cases denied by trial judge

February 5, 2011 | by Michael DelSignore

A Massachusetts trial judge, Mark Sullivan, in the case of Commonwealth v. Anthony Daen, denied the defendant’s request for a Daubert-Lanigan hearing in a group of Massachusetts drunk driving cases that were consolidated for the Honorable Judge Mark Sullivan out of the Lawrence District Court. The case involved 60 defendants charged with operating under the influence of alcohol where the defendants submitted to a breathalyzer test.

A Daubert-Lanigan hearing is hearing that a Massachusetts criminal attorney can request challenge the scientific reliability of expert testimony. When this hearing occurs, the Commonwealth presents its proposed scientific evidence to a judge prior to trial so that the judge can determine whether the evidence is sufficiently reliable for a jury to hear the evidence. If a judge finds that the evidence is not scientific reliable, it will be excluded from evidence.

Judge Sullivan ruled that the Daubert standard does not apply because the Massachusetts legislature made breathalyzer test results admissible by statute and devised a statutory scheme for the admissibility of breathalyzer test results. Accordingly, the judge ruled that a Daubert hearing is inapplicable because the test results are admissible under Massachusetts OUI law.

Bristol County District Attorney proposes having defendants sign waiver to allow criminal trials to proceed when defendants fail to appear in court

January 30, 2011 | by Michael DelSignore

Bristol County District Attorney Sam Sutter’s proposal to move trials forward even if the defendant fails to appear would be declared unconstitutional by the Massachusetts Supreme Judicial Court. In an effort to decrease the number of defendant’s who fail to appear in court, the Bristol County District Attorney has proposed requiring defendants to sign waivers allowing trials to proceed without their appearance in the event of a default. This waiver would clearly be unconstitutional as courts indulge every presumption against waiver of constitutional rights. The so-called waiver for defendants that default would involve defendants waiving numerous constitutional rights, including the right to confront their accuser, right to testify, elect between a bench or jury trial and the right to effective assistance of counsel and a fair trial.

As a Fall River criminal lawyer, I can understand the frustration of the district attorney that cases cannot be resolved as a result of defendants failing to appear in court. However, District Attorney Sutter’s proposal is an unconstitutional and would ultimately be unworkable. First, a defendant should simply refuse to sign the so-called waiver form. It would be inappropriate for a judge to raise or set a higher bail based on the district attorney attempting to obtain a waiver of a defendant’s Constitutional rights.

As a Bristol County criminal lawyer, it would be inconceivable to have a trial without the defendant being present. First, there are certain fundamental decision that a criminal lawyer cannot make without consulting with the defendant, whether to proceed with a bench or jury trial and whether or not the defendant testifies. Clearly, allowing a trial to go forward without the defendant would deprive the defendant of the opportunity to testify and deny the defendant a fair trial. Further, there would be a natural tendency for the jury to find a defendant guilty based on the failure to appear as the jury would likely speculate as to the reason for the defendant not appearing.

United States Supreme Court decision limits the scope of federal habeas corpus relief of State court criminal convictions

January 29, 2011 | by Michael DelSignore

The United States Supreme Court, in the case of Harrington v. Richter, decided, January 19, 2011, held that a trial counsel was not ineffective under the federal habeas corpus statute, called the Antiterrorism and Effective Death Penalty Act of 1996, when his trial counsel did not pursue a defense involving forensic evidence. The opinion was written by Justice Kennedy with six judges joining in the opinion and Justice Ginsburg concurring in the judgment. The decision is notable for the extent to which the Court goes to narrow the scope of review under the federal habeas statute. The court stated that relief under the statute is only allowed when a state court decision is contrary to clearly established holding of federal law or it involves an unreasonable application of law. In addressing the claim, the court looked at whether the State court decision involved an unreasonable application of the United States Supreme Court decision on ineffective assistance of counsel, Strickland v. Washington, 466 U.S. 668 (1984).

The Court held that determining whether the State’s court’s decision was an unreasonable application of Strickland is different from determining whether counsel performance was ineffective had the case came before it on direct appeal. Accordingly, the court held that federal habeas relief is precluded as long as fair minded judges may disagree and further emphasized the difficulty for a defendant satisfying this standard by holding that when the standard is general, the more leeway courts have in reaching different outcomes.

The United States Supreme Court criticized the 9th Circuit Court of Appeals for reviewing the case as if it came before it on direct review rather than under the differential standard of the federal habeas statute. The court stressed that federal habeas relief is meant to be a difficult standard to satisfy. The Court underscored that the statute protects against extreme malfunctions in the criminal process and not against error that may result on appeal. The court justified this holding under the rationale that it preserves the sovereign power of the States to punish criminal offenders.

United States Supreme Court to hear oral arguments in the case of Kentucky v. King addressing the Fourth Amendment Exigent Circumstance exception to the warrant requirement.

January 10, 2011 | by Michael DelSignore

On January 12, 2011, the United States Supreme Court will hear oral arguments in the case of Kentucky v. King. This case addresses the issue of what test should courts apply when police conduct creates the exigent circumstances relied on as the exception to the warrant requirement. The briefs in the case can be found on the Scotus blog. Additionally, there is an excellent commentary of Orin Kerr. Click here to read the article of Orin Kerr. The United States Supreme Court is reviewing a decision of the Kentucky Supreme Court, which can be read by clicking on this link.

I will be attending the oral arguments in this case as I am being sworn in as an attorney to practice before the United States Supreme Court. As a Massachusetts criminal attorney, it will be a great honor to be in attendance for such an important oral argument that impacts criminal law. I will posted my impressions of the argument on this blog.

In the King case, an undercover police officer bought drugs from a suspect in an apartment hallway. The suspect went into an apartment; however, there were two apartments and the officers did not know which one the suspect entered. The facts of the case indicate there were two apartments one on the left and the other the right of the hallway. From the left apartment, the police smelled marijuana, knocked on the door of the left apartment, announced their presence and entered the apartment without a warrant. While waiting outside, the police heard movement in the apartment and believe that evidence was being destroyed and as a result the police enter the apartment and seize narcotics.

Brockton, Massachusetts criminal defense lawyer comments on recent decision involving Miranda warnings from the Florida Supreme Court.

January 1, 2011 | by Michael DelSignore

As a Brockton Criminal defense lawyer, a recent case from the Florida Supreme Court raises significant issues regarding when and how police must provide Miranda warnings under the Constitution. The case of Ross v. State, is a case where the defendant was convicted of first degree murder of his parents and sentenced to death. A key component of the State’s evidence was the defendant’s confession to the murder. The Florida Supreme Court reversed the conviction and ordered a new trial holding that the police violated the defendant’s rights under Miranda by not providing him Miranda warnings until after he made a confession; the defendant was then given Miranda warnings and again made inculpatory statements. The State of Florida has filed a petition for certiorari with the United States Supreme Court in order to attempt to reverse the decision of the Florida Supreme Court and uphold the jury verdict. The filings in the Ross case can be found on the Scotusblog.

As a Massachusetts criminal defense lawyer, the Ross decision is noteworthy in several respects. The court found the defendant first inculpatory statement custodial applying the test articulated by the United States Supreme Court in Yarborough v. Alvardo, 541 U.S. 652 (2004) where the court looks to the circumstances surrounding the interrogation and whether a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave.

In a Massachusetts criminal case involving an issue of a custodial interrogation, the court would apply the factors set forth in the case of Commonwealth v. Bryant, 390 Mass. 729 (1984).

1. the place of the interrogation
2. Whether the investigation has begun to focus on the suspect 3. The nature of the interrogation whether it was aggressive or, instead, informal and influenced in its contours by the suspect; and
4. whether, at the time the incriminating statement was made, the suspect was free to end the interview by leaving the locus of the interrogation as evidenced by whether the interview ended with the arrest of the defendant.

The Florida court applied a similar test and found that all of the factors favored a custodial interrogation in that the defendant had to endure a long interrogation where he was confronted with evidence of his guilt in a highly confrontational manner without having the benefit of Miranda warnings prior to his confession.

After obtaining an incriminatory statement, the defendant was provided Miranda warning and subsequently made a second incriminatory statement. To determine whether this statement was admissible the Florida Supreme Court applied the case of Oregon v. Elstad, 470 U.S. 298 (1985) and Missouri v. Seibert, 542 U.S. 600 (2004), both from the United States Supreme Court.

The Elstad case addresses the issue of a statement prior to Miranda warnings followed by the police providing the warnings and then the defendant making a second incriminatory statement and would allow the second statement into evidence if a careful and thorough administration of the Miranda warnings is given and the rights are waived. This rule of allowing a late administration of the Miranda warning to be cured applies only if the police do not intentionally delay providing Miranda warnings to obtain an incriminatory statement. The Florida court found it significant in its analysis that the police downplayed the importance of the Miranda warnings in order to compel the defendant to repeat his earlier confession. The Florida Supreme Court concluded that the later statements could not be admitted into evidence because the delay in giving the Miranda warnings was designed by the police and the police downplayed the significance of the warnings once given.
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Massachusetts drug crimes lawyer comments on case before Maryland Court of Appeals regarding disclosure of confidential informant

December 27, 2010 | by Michael DelSignore

In many Massachusetts drug arrests, the police will claims as a basis for obtaining a search warrant of a residence that a confidential informant provided information that the residence was being used for drug trafficking or distribution.

As a Massachusetts drug crimes lawyer, it is sometimes necessary to file a motion to require the Commonwealth to disclose the identity of the informant in order to prepare a defense to the charges. In some cases, an informant may provide relevant information for the defense while in other cases a court order for disclosure may force the Commonwealth to dismiss the case rather than to disclose the informant’s identity.

In Commonwealth v. Shaughessy, 455 Mass. 346 (2009), the Massachusetts Supreme Judicial Court held that in order to obtain disclosure of the identity of a confidential informant a defendant has the burden of showing that the informant would provide information that is material to the defense. If this showing is made, then the privilege can be overcome. The purpose of the privilege is to assist the police in obtaining information without the informant fearing retribution as a result of cooperating with the police. This privilege has limitations under the Sixth Amendment Confrontation Clause of the United States Constitution. The leading case on the issue of disclosing confidential informants in drug cases is the United States Supreme Court case of Roviaro v. United States, 353 U.S. 53 (1957).

Recently, the National Association of Criminal Defense Lawyers submitted an amicus brief to the Court of Appeals of Maryland in the case of Elliot v. State on the issue of whether the Maryland court improperly denied the defendant access to the identity of the confidential informant. Click here to read the brief of the National Criminal Defense Lawyers.

In Elliot, the defendant argued that there was no need for the privilege as the identity of the informant was already known and secondly that disclosure of the informant was necessary as a matter of fairness as the informant would potentially be a material witness for the defendant. In defending the charge of possession of drugs with the intent to distribute, the defendant in Elliot claimed that the informant entrapped the defendant and asserted as his defense that he had no knowledge that there were drugs in his car. Clearly, cross examination of the informant may provide strong evidence for the defendant in providing a motive for the informant to frame the defendant in attempt to gain favor with the police; further, disclosure of the informants identity would allow the criminal defense attorneys to gain other valuable discovery, such as the criminal record of the informant to uncover a motive to lie on the part of the informant.

As a Massachusetts criminal defense lawyer, I believe that the Maryland Court of Appeals should reverse the lower court’s decision and its decision may provide valuable precedent in defending Massachusetts drug crimes. To read the decision of the Maryland Court of Appeals in Elliot v. State click here.
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Forensic science plays role in few Massachusetts criminal cases

November 16, 2010 | by Michael DelSignore

The Boston Globe recently published an excellent report on the impact television forensic shows, such as CSI, have in the real-world courtroom.

In reality, a Massachusetts criminal defense lawyer can frequently challenge the available evidence in many crimes — it is the defendant’s statements that are much more likely to be a problem. Television is Hollywood and real life isn’t. The vast majority of cases do not have DNA evidence, which is expensive and time consuming. Other “forensics” seen on television might be available to the CIA (and we only say might), but is not going to be used by Massachusetts law enforcement anytime soon. For instance, detectives are not going to determine what type of motorcycle a defendant was using during a robbery by matching the sound of its exhaust caught on surveillance video — which was an actual episode of a popular television forensics show.

In fact, the popularity of such shows can cause problems in a trial — particularly when jurors think such evidence should be available if prosecutors or the defense just used a little more effort. A 2006 study of 1,000 Michigan jurors found that nearly half expected to see some form of scientific evidence in every criminal case. Nearly 75 percent expected to see it in murder trials. Of even greater concern, is that people trusted such evidence almost blindly; a study of 1,201 California jurors found scientific evidence such as DNA or fingerprints, was considered far more reliable than testimony from police officers, witnesses or the victims themselves.

So it goes without saying that it is critical to select a Massachusetts defense attorney who has the knowledge and experience to challenge all manner of forensic evidence while convincing a jury of its relative value.

Meanwhile, a new study of 400 murder cases found that the presence of forensic evidence had very little impact on whether an arrest was made, charges were filed, or a conviction was handed down in court. Just 13.5 percent of murder cases had physical evidence linking the murderer to the crime scene or the victim. If you are a defendant without an experienced and aggressive defense lawyer, that is a truly frightening statistic. In other words, the state wants you to believe that more than 85 percent of murder defendants are guilty because prosecutors say so.

According to the research, biological evidence was found 38 percent of the time, fingerprints 28 percent of the time, and DNA in just 4.5 percent of homicides. Research yet to be released shows that forensic evidence also plays a minimal role in other types of crimes, including robbery and burglary. Forensic evidence is collected in less than a third of such cases and is submitted to the lab just a small fraction of the time.

Meanwhile, the National Academy of Sciences is questioning whether certain methods used in forensics are even scientific and is decrying the lack of standards and certification. Problems are commonplace: In 2008, Detroit shut its crime lab after an audit found a 10 percent error in ballistics testing; New York State Police have come under fire for overlooking evidence that a crime lab was fabricating data; and a San Francisco crime lab was closed after it was revealed that an analyst was allegedly skimming illegal drugs for personnel use.

Massachusetts hasn’t escaped problems. In 2007, the Executive Office of Public Safety found a backlog of more than 16,000 cases awaiting DNA testing. In fact, DNA backlog is a nationwide problem that has cost $330 million since 2004 and is one of the primary reasons an individual case is unlikely to be tested.
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The Massachusetts Court of Appeals decided a significant case for Massachusetts Domestic Assault and Battery Lawyers

November 12, 2010 | by Michael DelSignore

The Massachusetts Court of Appeals decided a significant case for Massachusetts Domestic Assault and Battery Lawyers. In Commonwealth v. Belmer, decided October 14, 2010, the Massachusetts Appeals Court permitted an affidavit in support of a 209A restraining order to be used as substantive evidence. This ruling was critical because the victim originally claimed that the defendant, her husband, struck her 15 year old son, but recanted the testimony at trial. Her son was brought to the Boston Emergency Center where he was given stitches for his lip.

The mother wrote in her 209A, restraining order affidavit, that her son intervened when he heard her arguing with the defendant. According to the 209 affidavit, the defendant started a fight with the 15 year old boy. In addition to signing an affidavit, the mother testified as to what occurred between her son and husband at the 209A hearing.

At trial, the judge allowed the prosecutor to question the child’s mother regarding her 209A affidavit and testimony at the 209A hearing. At trial, the mother recanted her testimony claiming that the fight was purely verbal and that the defendant was talking with his hands and accidentally struck her son with his elbow. The mother claimed that her trial testimony differed from her affidavit because she was angry at the time she made the affidavit, about the fact of the defendant’s infidelity and that her son was injured.

The Commonwealth also admitted the medical records of the child at the Domestic Assault and Battery trial. The EMT records stated that the victim reported being struck. Additional medical records also recounted that the victim stated that his father struck him in the face with a closed fist.

The Commonwealth, relying on the case of Commonwealth v. Daye, 393 Mass. 55 (1984) argued that the prior inconsistent statements of the victim should come into evidence as substantive evidence. Under Daye, a prior inconsistent statement can be used as evidence of the criminal offense charged when the following criteria are met: First, the maker of the statement must be available for cross examination, the maker of the statement must have a memory of the prior statement and that statement must be the maker’s own words rather than a response to a questions, like a yes or no answer or other leading question. The Daye court further noted that the prior inconsistent statement cannot be the sole basis for the conviction but must be corroborated by some other evidence.

It appears that significant to the court’s decision in Belmer finding that the prior inconsistent statement was corroborated was the fact that the medical records were admitted into evidence without objection. Generally, medical records as to how an event, such as a domestic assault and battery would be inadmissible without the live testimony of the maker of the statement. It appears that the victim of the assault and battery never testified; accordingly, as a Massachusetts criminal defense lawyer, it appears as though the medical records should have been excluded from evidence as inadmissible hearsay. Had these records been excluded, it is difficult to see how the court would have found the corroboration rule satisfied.

The Belmer case is a significant case for defending domestic assaults in Massachusetts as it shows how the Commonwealth can proceed to trial even with a hostile witness. Accordingly, it is important to hire an experienced criminal defense lawyer to represent you in court and to fight your case at trial.
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Challenging a Massachusetts OUI drug charge in Court and attacking the drug recognition officer

September 30, 2010 | by Michael DelSignore

Charge of driving under the influence of drugs, DUI or OUI drugs are on the rise in Massachusetts and throughout the country. Police departments have undertaken increased training of officers in order to detect motorists under the influence of drugs. A charge of OUI drugs in Massachusetts can be difficult to prove as the signs of a motorist being under the influence of drugs are less obvious than the signs of someone under the influence of alcohol. Further, many officers are not trained in how to investigate whether someone is under the influence of drugs.

Officers will generally undertake what is known as a 12 step Drug Recognition Exam to determine whether a motorist is under the influence of drug.

The 12 steps are as follows:
1. Breath alcohol test to rule out alcohol as a cause of the impairment.
2. interview with the motorist where the officer attempts to gain admissions regarding consumption of drugs.
3. The officer inquiries about the suspects medical condition, looks for signs of illness or injury, suggesting drug use, checks the pulse and looks at the eyes to see how they react, whether they are bloodshot and for signs of trauma.
4. An eye examination is performed where the officer will administer a horizontal gaze and nystagmus test, which is also used for investigating charges of operating under the influence of alcohol. The officer will also perform a Vertical Gaze and Nystagmus test, which is typically not used in OUI alcohol cases, but tests the ability of the suspect to tract an object up and down. Under Commonwealth v. Sands, in many Massachusetts OUI arrests the Commonwealth is unable to get HGN evidence admitted at trial.
5. Field sobriety tests, such as the Romberg Balance, walk and turn and finger to nose, all commonly given in OUI alcohol cases, though the Romberg balance test is used less frequently in Massachusetts OUI cases.
6. Vital Signs are checked, pulse, temperature and blood pressure.
7. a darkroom examination is performed where the defendant’s pupils are measured in four different lighting conditions and the oral and nasal cavities are also examined for signs of ingestion.
8. a physical examination is performed for muscle rigidity.
9. search for needle marks 10. further questioning of the defendant
11. opinion is given by the officer 12. toxicology exam to determine the presence of drugs.

Courts in other jurisdictions have allowed an officer to testify as to the DRE process but have held that the process is not scientific and that officer should not be referred to as experts, but that the process simply aids the officer in making observations. The case of State v. Klawitter, 518 N.W. 2d 577 (Minn. 1994), from the Minnesota Supreme Court provides an excellent discussion of the issues facing courts when confronting DRE testimony. A recent case from Wisconsin, City of Mequon v. Haynor, from the Wisconsin Court of Appeals followed Klawitter but also expressed some reservations about the Drug recognition protocol. Both courts allowed testimony about the 12 steps process subject to a proper foundation being laid and allowed the jury to assign any appropriate weight to the process.

Massachusetts criminal defense lawyers faced with a DUI drugs case should continue to attack the drug recognition protocol as unscientific, immaterial and irrelevant and as lacking a proper foundation based on the training and experience of the arresting officer. Additionally, once an officer suspects a motorist is under the influence of drugs, the entire evaluation suffers from a confirmation bias in that the officer is conducting the evaluation to confirm an opinion that the motorist is under the influence of drugs. The Wisconsin Court of Appeals discussed this issue in Haynor and it should be used by defense counsel to undermine the reliability of the opinion of the arresting officer.
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United States Supreme Court to hear oral argument in Sixth Amendment Confrontation Clause case of Michigan v. Bryant

September 27, 2010 | by Michael DelSignore

The United States Supreme Court will hear oral argument in the Sixth Amendment Confrontation Clause case of Michigan v. Bryant on October 5th. In Bryant, a case from Michigan, the victim of a crime was injured from a gunshot wound and gave a description of the shooter to police. The victim died from the gunshot wound. The State admitted into evidence at trial the victim’s statements to the police. The defendant was convicted and appealed to the Michigan Supreme Court which held that the defendant’s right of confrontation was violated. The State appealed to the United States Supreme Court, which granted certiorari on March 1, 2010, 130 S.Ct. 2138 (2010).

The Bryant case raises the issue of whether statements to police by a witness experiencing a medical emergency are nontestimonial when made for the primary purpose of allowing the police to respond to an ongoing emergency when the perpetrator of the crime is still at large. The Court’s resolution of Bryant will rely heavily on how the court interprets its prior decision of Davis v. Washington, 547 U.S. 813 (2006) which defined when a statement is testimonial under the Sixth Amendment.

In Davis, the United States Supreme Court held that statement made by a victim who called 911 to report that she was being subject to domestic violence were nontestimonial. The Court held that the victim’s statements to the 911 operator were nontestimonial because the victim was speaking of events as they were actually happening and the statements were made as the victim faced an ongoing emergency and were made for the purpose of allowing the police to respond to the emergency.