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Some people argue that the most onerous aspect of the Massachusetts restraining order statute is the requirement that firearms be surrendered.  Massachusetts General Laws Chapter 209A Section 3B states that once a restraining order issues the defendant must immediately surrender all firearms.  The law also requires the defendant to surrender all firearm licenses.  Those licenses are automatically suspended as well.  The defendant is notified of this consequence by the judge orally and in writing.  The weapons are to be surrendered to the licensing authority where the defendant lives.  Alternatively, the officer who serves the defendant with the 209A Order can take possession of the firearms at the time of service.   Continue Reading

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There is perhaps nothing more unfair and suggestive in criminal law than photo arrays.  This is a procedure where the police place before a witness several photos and ask if the person who committed the alleged crime is depicted in one of the pictures.  Included in the array is a photograph of the suspect and several other people known as fillers.  There should be at least six photos and the appearance of the people in the photos should be similar in every regard.  The photos should be positioned randomly within the array.  The photos should shown to the witness one at a time.  Once the witness has viewed a photo that picture should be removed so that only one picture is before the witness at any one time.  Nothing suggestive should be said or done during the procedure.  The witness should not be told that the suspect is included among the photos.  Yet, this is not the way it works.  This post looks into some of the problems with the reliability of photo arrays. Continue Reading

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Experienced police officers believe they know exactly how to write reports that will survive constitutional challenges.  They learn this skill at the police academy, through occupational trainings and from losing suppression hearings.  Yet regardless of what they put in their reports they still have to be able to stand up to aggressive cross-examination not only at trial but during evidentiary hearings.  When the facts they put in their report are transparently suspect an experienced criminal defense lawyer is still going to have a good chance at winning.  This post looks at a recent Lawrence, Massachusetts heroin trafficking arrest and my perceptions about the existence of any probable cause to stop and search.   Continue Reading

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Arrests for serious crimes are likely to trigger requests for bail. This is true not just in Massachusetts but in every state. Bail orders are set in various situations. Bail orders depend on the severity of the crime charged and other things more fully discussed below in this post. Massachusetts General Laws Chapter 276 Section 58 sets out the procedure for most bail matters. Initial orders of bail that are set in court are matters that should be handled by an experienced criminal defense lawyer. If not handled properly there is a chance that you can be held in jail. This post looks at the time and manner when bail is usually addressed.

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Earlier today I read a blog post written by Orange County criminal lawyer Randy Collins discussing the role of jailhouse informants or snitches in helping prosecutors prove cases. It reminded me of just how difficult defending criminal cases can be when a client is locked up awaiting trial. The use of informants always had and always will have its place in proving crimes. Yet is seems more prevalent these days in Massachusetts, particularly in regard to murder prosecutions. There was a time when the fear of retaliation scared would be informants from helping prosecutors. Newly designed jails and segregated prison populations have contributed to quelling these fears and encouraging informants to cooperate. This post looks at some jailhouse informant issues I have encountered and how to defend against them.

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We have all heard the expression innocent until proven guilty. We all know that the proof is on the district attorney to prove beyond a reasonable doubt that the defendant committed the crime charged. We are familiar with those historic words “cloaked with the presumption of innocence”. Yet any time someone is charged with the crime of rape of a child people run and hide from those constitutional protections and principles. Opinions are immediately formed. The defendant is now a pariah. Even judges overlook those bedrock ideologies. The only person someone this position can count on is his criminal defense lawyer.

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The Massachusetts joint venture laws are perhaps the most confusing for jurors to appreciate and understand. A joint venturer is someone who aids or assists in the commission of a crime. This is the person or people who help the principle do the actual act. Helping someone escape or acting as a lookout can also be acts that impart responsibility as a joint venturer. It is the obligation of the district attorney to prove beyond a reasonable doubt that the joint venturer had the same intent as the principle; that he or she intended that the crime be committed. Mere knowledge that a crime is being committed or mere presence at the crime scene is not enough to satisfy the prosecution’s burden of establishing a joint venture. All of that is understandable but here is where the law becomes problematic. A jury can infer the mental state of the joint venturer based the circumstances of the case. So what does the district attorney do in cases where many people are caught and present at a crime scene? They charge them all with the crimes and let the jury make the determination as to each person’s intent. This is completely unfair, disingenuous and downright dangerous. The following recent Brockton cocaine trafficking arrest demonstrates my concerns.

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There was once a time in Massachusetts when a witness who had already testified before a grand jury could simply invoke his privilege against self-incrimination and avoid having to testify in court. Then, in the mid 1990’s, when street gang violence was perhaps at its worst in Boston, things started to change. Prosecutors started to fight the trend of violent gang members who witnessed crimes refusing to testify. One way of doing this was to put the witness in the grand jury and lock him into his testimony. Many of these witnesses agreed to testify at this “closed” proceeding under the erroneous belief that they would never have to testify against the defendant in open court. I was often told that police officers and unscrupulous district attorneys would create this false sense of security. Then, when called to trial the witnesses would either feign memory loss or refuse to testify. This tactic was challenged in 1996 in the case of Commonwealth v. Martin, 423 Mass. 496 (1996).

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This question is brought up in my office several times each month. Someone is arrested and charged with drug trafficking. They had very little or no drugs on them. Or, they were caught selling a small amount of a controlled substance. Small meaning substantially less than the threshold amount needed to prove trafficking. They get arrested and arraigned in court. They are shocked to find out that they have been charged with trafficking. How can they charge me with this? An article I read earlier today gives an example of this. Erik Owen, an Andover, Massachusetts resident was arrested on drug charges in Andover. As a result a location in a neighboring town was searched. There, the police found in excess of two hundred grams of heroin. This was certainly enough product to charge heroin trafficking. The cops also found a firearm and bullets. Owen was charged with trafficking heroin over two hundred grams.

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Do you ever wonder why “routine” motor vehicle stops often seem to result in major drug busts? How is it that the cops just happened to pull someone over and suddenly find large quantities of drugs in the car, on the driver and in the possession of the passenger? Is it because of good police work? Is it luck? Or is it more likely a violation of your constitutional rights that if properly attacked can result in suppression of the drugs and a dismissal of your case? This post examines a western Massachusetts motor vehicle stop that resulted in three people being charged with felony possession with intent to distribute drugs and conspiracy.

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