Boston Criminal Attorney Blog

It is said that “Actions speak louder than words.” The Massachusetts Supreme Judicial Court reaffirmed that very powerfully in the area of Massachusetts arrests last week, as it ruled that a person shaking his head horizontally left to right, indicating “no”, is just as powerful and effective as the spoken word when it comes to invoking the constitutional right to remain silent. This right, of course, is familiar to anyone with a television set, and is among several rights encoded in the famous Miranda Rights.

The case stems from an October 2008 arrest of a man suspected of indecent assault and battery on the Boston subway system. The suspect made incriminating statements after he had been asked by police officers for the Massachusetts Bay Transportation Authority (a/k/a the “T”,) if he wished to continue speaking with them, and he had shaken his head back and forth. Specifically, at the start of the interrogation, officers gave the suspect a typical “waiver form” advising the suspect of his right to remain silent and his right to have a lawyer present during questioning. Before the suspect had finished signing the form, an officer asked the suspect if he wished to discuss what he was being charged with. In response, the suspect asked what would happen if he didn’t speak to police. When the officer told him “nothing,’’ the suspect asked that he be allowed to go home. Clarifying, the officer then asked him, “So you don’t want to speak?’’ At that point, the suspect shook his head back and forth.

At trial, the man’s attorney later filed what is called a Motion To Suppress, arguing that his client’s incriminating statements to police should be ruled inadmissible at his trial. The SJC reviewed the case, and agreed with the defendant. This ruling is unusual, because until now in Massachusetts, the legal standard applied to determine whether or not a suspect has validly invoked his right to remain silent, has been the long-held federal standard. That standard requires that a suspect declare his right not to speak with police “with the utmost clarity.” However, the SJC ruled that a person arrested in Massachusetts has greater rights under the Massachusetts Declaration of Rights than provided under federal law on this subject.

According to newly-appointed Justice Barbara Lenk, who wrote the court’s unanimous opinion, “When law enforcement officials reasonably do not know whether or not a suspect wants to invoke the right to remain silent, there can be no dispute that it is a `good police practice’ for them to stop questioning on any other subject and ask the suspect to make his choice clear." Suffolk District Attorney Dan Conley, a prosecutor I often admire, sharply disagreed, saying the ruling will likely confuse police in their interrogations. “The high court now is rejecting the clear federal standard for a less clear standard,’’ a press spokesman for Conley said. “It widens the gray areas in police interviews rather than creating a clear line for police officers to follow." Conley said the police officers who had questioned the defendant believed the act of shaking his head was “an ambiguous response to multiple questions’’ and a simple misunderstanding of the next step in the arrest process. The defendant’s appellate lawyer said the court’ ruling makes clear that a suspect’s right to terminate police questioning must be “scrupulously honored.’’

In my opinion as a Dedham, Massachusetts criminal defense lawyer, given the court’s unanimous ruling, a federal appeal by state prosecutors is unlikely. The legal bottom line: When questioned by police in the state of Massachusetts, a person can invoke the right to remain silent with less clarity than required under federal law.

First, let me say that there hasn’t been a post here in a while, and I’m sorry about that. December saw me distracted with an extremely busy combination of court appearances, trials, and a vacation beginning December 20 – all of which caused me to be extremely busy. However, there was an additional matter requiring my time and attention, that I’d like to let my clients and readers know about, now that that work is almost completed.

That additional matter is the redesign and reorganization of my present one website (click on the “Website” tab above if you haven’t visited there yet,) into a stand-alone website dedicated entirely to Massachusetts criminal law (presently, the site includes both criminal law and personal injury.) The new website will have all the same valuable information as the present one, with added features and a lot more valuable content that can assist you with a wide variety of questions about Massachusetts criminal law.

The new web site should be up and live on the internet by Wednesday, January 18 at the latest, so please, check it out and call me if my firm can be of help to you!

Thank you again to all my loyal readers of this blog, and to all my valued clients!

Most people who were asked what “Double Jeopardy” is, would think it has something to do with the TV game show. Not exactly. OK - to be fair, you’d probably need to have taken at least one college-level course in criminal justice or pre-law, to understand the answer.

What the answer has to do with, is the U.S. Constitution’s prohibition on a person being tried twice or punished twice for the same crime. This clause in the Constitution is known as the “Double Jeopardy Clause,” which is found in the Fifth Amendment to the Constitution. In other words, you can’t be charged with a crime, acquitted or convicted, then tried again for the exact same crime. The framers of our Constitution intended for this protection, against potentially overzealous government prosecutors.

The Massachusetts Supreme Judicial Court (SJC) released a decision yesterday, clarifying this principle. In case you think that cases like this always involve murder or such, they don’t. In this case, the crime involved possession of an unlicensed gun; importantly, not use of the gun, just possession of it. Not exactly shoplifting, but not the worst crime under the sun, either - not compared to what I’ve seen, as a Dedham, Massachusetts criminal defense lawyer. In the case the SJC reviewed, a man had been arrested for illegal possession of a firearm, a Massachusetts gun & firearms offense. The police charged him with both illegal possession of a loaded gun, and illegal possession of ammunition – even though the only bullets he was in possession of were in the gun itself. He wasn’t, for example, carrying an extra supply of bullets. Prosecutors had argued that since more than one bullet was found in the gun, a jury could “reasonably” conclude that some of the bullets could satisfy the charge of carrying an unlicensed, loaded gun and the other bullets could be “used” to reach the additional ammunition charge.

That reasoning missed the bulls-eye, according to the SJC. The court ruled yesterday that people arrested for Massachusetts gun offenses cannot be tried for both unlicensed possession of a loaded gun and illegal possession of ammunition, ruling that these dual charges violate the constitutional prohibition against double jeopardy. Quoting from the court’s decision, which was opinion written by Justice Francis X. Spina, “The Commonwealth has cited no authority to support this proposition, and we decline to draw such a distinction where, as here, all of the ammunition was loaded in the revolver. “We conclude that the defendant’s convictions of unlawful possession of ammunition and unlawful possession of a loaded firearm are duplicative, and his separate sentences for each crime violated the double jeopardy clause because he was punished twice for possession of the same ammunition.’’

This decision isn’t important because a great deal of people are running around with unlicensed firearms (though, obviously, there are those who do.) The ruling’s importance stems from the reinforcement of the principle that the government cannot use “creative” methods to skirt the constitutional ban on double jeopardy.

Quick question: If you’re in a Massachusetts motor vehicle accident with an off-duty police officer, and he or she prevents you from either driving away or leaving the scene of the accident until the appropriate police department arrives, is that an “arrest” for legal purposes? According to the Supreme Judicial Court (SJC), the answer is “No”, and as a result, any evidence obtained by the police who have geographic jurisdiction and are summoned to the scene by the off-duty officer, cannot be excluded at trial.

Let’s start with basics in this area of Massachusetts criminal law, then we’ll get to the facts of this case: At common law in Massachusetts, a police officer cannot generally make a warrantless arrest outside of his territorial jurisdiction. If, for an example, an off-duty Boston police officer made a warrantless arrest of a person in Westwood, that would probably be ruled to be an invalid arrest, and as a result, any evidence that the Boston police officer obtained as a result of that “arrest” would be deemed inadmissible at trial against the person arrested.

In this case, a driver’s automobile collided in Woburn with a vehicle driven by an off-duty Somerville police officer. That off-duty Somerville officer suspected that the driver who hit him was operating under the influence of alcohol in Massachusetts, and the officer prevented the driver from leaving the scene until the Woburn police arrived. Upon arrival, the Woburn police arrested the driver for Massachusetts OUI/DUI, and the driver was later indicted for operating while under the influence of alcohol and for operating with a suspended license and operating with a revoked license. This defendant’s attorney did what as a Dedham, Massachusetts OUI lawyer I would have done in similar circumstances: Filed what is called a ‘Motion to Suppress’, arguing that any evidence that was obtained by the Woburn police, should be excluded at trial in the prosecution's case against the defendant.

The defendant’s argument was that the off-duty Somerville officer’s actions in preventing the defendant from leaving the scene until Woburn police arrived, in effect constituted what’s known legally as an “extraterritorial arrest” of the defendant – i.e., an arrest by a police officer outside of his geographic jurisdiction, without a warrant. In making this argument, the defendant’s attorney here was saying that, as the arrest was invalid, any evidence obtained from it (BAC readings, roadside sobriety tests, alcohol found in the vehicle, etc.) should be ruled inadmissible. A Superior Court judge denied that motion, and the defendant appealed that judge’s ruling to the SJC, which upheld the judge’s ruling. As a result, all the evidence obtained by the Woburn police against the defendant in this case, was allowably used at trial against the defendant.

In making this ruling, the SJC recognized that under the common law, a police officer cannot generally make a warrantless arrest outside of his territorial jurisdiction. However, they found that the off-duty officer’s actions in telling the defendant to step out of the car and preventing him from leaving the scene until local police arrived, fell short of an ‘arrest.’ Instead, the court found that the off-duty officer’s actions more closely resembled an investigatory ‘stop,’ which is not an actual arrest. The court found it reasonable for the off-duty officer — as it would be for a private citizen — to prolong the ‘stop’ until the Woburn police arrived, “in order to ensure the safety of the public and of the defendant himself." According to the ruling, “Viewed objectively, the defendant in this case was not under arrest until … the Woburn police arrived and placed him under arrest. Not only did [the off-duty Somerville officer] not subjectively intend to arrest the defendant, he also did not objectively communicate such an intention to the defendant. As the motion judge found, ‘[the off-duty officer] did nothing to suggest to [the defendant] that he was placing him under arrest.’ As such, Kelleher’s actions here were more akin to a reasonable investigatory stop .. not an arrest. Therefore, the evidence collected by [the Woburn police] Officer Simonds was not obtained in violation of the … law and need not be excluded. …”

So, bear in mind that sometimes, when it comes to police arrests, things can get creative.
The case is Commonwealth v. Limone (Lawyers Weekly No. 10-164-11)

Most Massachusetts drug offense prosecutions involve challenges to how police obtained the illegal drugs that a defendant is charged with possessing. As a Dedham, Massachusetts drug crimes lawyer, I try to prevent this evidence from being admitted at trial, through what are called pre-trial “Motions to Suppress.” The legal bases of these challenges typically revolve around the validity of searches, whether search warrants that might have been issued were valid, whether police had probable cause to conduct a warrantless search, and a variety of other legal reasons.

One method for a police search for illegal drugs was recently challenged in federal court in Boston, with an interesting outcome.

A suspect was arrested for operating a motor vehicle without a license, a Massachusetts motor vehicle violation. However, he police officer who stopped the suspect quickly came to suspect that more than just a traffic violation was taking place. The officer was told by a confidential informant whom the officer knew well and trusted, that suspect had inserted a package of crack cocaine into his rectum just prior to his being arrested. Because the arresting officer trusted the confidential informant due to the informant’s supposedly having produced reliable information for a considerable period of time previously, the officer asked the suspect to submit to a rectal examination for evidence of concealed drugs. The suspect refused. No surprise there.

Following this refusal, the officer then sought a search warrant. In an affidavit supporting the warrant application, the officer stated the information provided to him by the confidential informant and noted the informant’s favorable track record. A state court judge issued the search warrant, which specifically authorized a medical examination of the suspect’s rectum for the presence of hidden cocaine. The suspect was taken to a local hospital so that doctors could perform the search. When a digital (finger) search of the suspect’s rectum revealed no contraband, the doctor then ordered an X-ray of the suspect’s abdominal area. The type of X-ray ordered by the doctor reveals images of the stomach, kidneys and other organs surrounding the rectum. The X-ray revealed no foreign objects in the plaintiff’s rectum, or upper or lower gastrointestinal tract, after which the suspect was released by police and no drug-related charges were filed against him.

This suspect later filed a federal civil rights suit in U.S. District Court in Boston, alleging violation of his civil rights and privacy rights as a result of the medical searches performed on him at the hospital. Essentially, the now-plaintiff argued that the medical examinations constituted and unreasonable search, which he claimed violated his Fourth Amendment protections against unreasonable searches and seizures. More specifically, the plaintiff’s argument was that the police aggravated the intrusion by searching beyond the scope of the search warrant, by searching his stomach as well as his rectal cavity.

A federal judge quickly found in favor of the police officers and the hospital. But that didn’t stop this person – he went on to file an appeal with the federal appeals court in Boston, which is the 1st Circuit Court of Appeals.

The result? No lucky breaks for this suspect: The unanimous appeals court panel of three judges affirmed the lower court’s ruling in favor of the police and the hospital. The court noted the importance of tackling this type of question, writing: “We have not yet considered the circumstances under which the police may be justified in compelling a suspect to submit to an x-ray search of a part of his body. This case raises interesting questions regarding the constitutional limits of searches conducted by the police with the aid of modern technology and medical professionals.” But the court found no constitutional violations in search warrants authorizing an x-ray search of a suspect’s internal body cavities." In weighing the reasonableness of an intrusion of a suspect’s bodily integrity, a court “must consider the strength of the suspicion driving the search, the potential harm to the suspect’s health and dignity posed by the search, and the prosecution’s need for the evidence sought. “We hold today that … although the x-ray was an encroachment on the appellant’s privacy interests, this encroachment was plainly outweighed by other factors… A diagnostic x-ray is a routine medical procedure that is brisk, painless, and generally regarded as safe.” The court also noted that the evidence sought in the X-ray search was unavoidably necessary to confirm or deny the officers’ belief that the suspect had committed a Massachusetts drug crime.

So, it seems that if someone is stopped by police and is in possession of illegal drugs, the phrase “shove it” won’t help much.

The decision is Spencer v. Roche, et al.

This isn’t exactly breaking news, but it’s something worth reminding my readers of. The Massachusetts Supreme Judicial Court (SJC) recently handed down a ruling on a challenge to the state imposing a fee to get a hearing on a motor vehicle offense or traffic violation.

Drivers seeking to appeal a citation in front of a Clerk-Magistrate have been charged a $25.00 fee since July 1, 2009. If the hearing results in an adverse finding and the driver wishes to appeal the Clerk’s finding to a District Court judge, there is an additional $50.00 fine. Prior to July 1 2009, drivers could secure a hearing before a Clerk-Magistrate for free, and appeals to a judge after a Clerk's hearing cost only a $20 fee. The state imposed the new fees as part of a sweeping set of new “revenue-enhancement” measures in 2009. (Translation: New taxes.) A lawyer challenged the new hearing fees, arguing that the fees violated his constitutional right to equal protection. He argued an equal protection violation due to the fact that people who contest traffic violations are treated differently from people contesting other civil infractions, such as tickets for smoking in public places and for possession of an ounce of marijuana or less.

Unfortunately, the SJC ruled that drivers who challenge traffic tickets enjoy “significantly greater’’ procedural safeguards than people who challenge other civil violations, and hence the court found no equal protection violation. These greater procedural protections include the right to subpoena witnesses, the right to be heard by a Clerk-magistrate, and the right to a new hearing before a judge, if the violator is found against by a clerk-magistrate. Justifying the fee, the SJC wrote that these safeguards impose “greater demands on the resources of the District Court,” that approximately 700,000 drivers are cited each year for civil vehicular traffic violations, that approximately 200,000 of those drivers seek hearings, and that those increased administrative demands justify the fees.

As a Boston Massachusetts traaffic violations lawyer, I feel that these fees should have been enacted at lower levels than they presently are – perhaps $15.00 for a Clerk-Magistrate’s hearing, and $25.00 for an appeal to a judge. But the SJC wasn’t asked to rule on the fee amounts – only whether the Legislature’s imposition of them was constitutional. In my view, these fees increase the stakes at these hearings and appeals, and increase the need for an experienced Massachusetts traffic ticket lawyer to be present at the hearing.

The watchword: Watch your speed and the rules of the road. Because the costs aren’t getting any lower.

Here’s an interesting point: Most people would be able to tell you that if you are questioned by police in a police station or in an environment where your ability to leave is otherwise restricted, police must read you your Miranda Rights. This type of questioning is referred to legally as “custodial interrogation.” Miranda Rights, as anyone with a television set knows, are the rights that persons are afforded by the United States Constitution, whenever a person is the subject of custodial interrogation. These rights were first created by a famous U.S. Supreme Court case, Miranda v. Arizona.

But what if a person is questioned in his home by police? Is he entitled to be provided his Miranda Rights in that setting? A federal Appeals Court recently took a look at that, and had an interesting answer. It all started when a U.S. naval officer living in Maine, claimed that when he was questioned by police in his home as part of a crime investigation, he was effectively “in custody”, and that because police did not provide him his Miranda Rights, any statements that he made to them as part of that questioning should be inadmissible in court.

Do you think most people would agree? Well, the U.S. Court of Appeals for the 1st Circuit did.

As I always say, the Devil is in the details, so here they are: It seems the defendant sold his personal computer to someone. The buyer found child pornography on the computer, a sex offense in Maine (and also a Massachusetts sex offense,) so he called the local police, who dutifully teamed up with the Maine state computer crime unit to investigate. Because of the fact that the suspect was a naval officer at Maine’s Brunswick Naval Air Station, the police also involved the Naval Criminal Investigative Service, or NCIS. State police obtained a warrant to search the residence where the suspect lived with his pregnant wife and child, and they made plans to conduct the search at a time when they knew that the suspect would be on duty at the naval station. Meanwhile, NCIS staffers asked the suspect’s commanding officer to order him to report to them at the base, where they instructed him to go directly home. They gave the suspect no explanation.

When the suspect arrived home, an officer told him that he was not going to be arrested and reassured him that the police were concerned not so much with the fact that child pornography was on his computer, as where it was downloaded from. When questioned, the suspect first denied that he had downloaded the material, but he eventually admitted he had. After about an hour of questioning, the police asked the suspect if he would come to the police station for more formal questioning. He agreed. Once there, he was advised of his Miranda Rights, per standard police procedure. Notwithstanding, he agreed to talk and signed a waiver of his rights.

As a result of questioning, he was charged with unlawful possession of child pornography. His attorney filed a Motion to suppress his statements to police while in his home, and when the motion was denied, he pleaded guilty. Notwithstanding, as part of his plea, he reserved the right to appeal the court’s decision denying his motion to suppress the statements he made to police in his home. A federal appeals agreed with him, and reversed the lower court’s denial of the defendant’s motion to suppress his statements. The court ruled that “We think the record speaks with a fair measure of clarity in showing that the combined law enforcement authorities [involved] deliberately planned to subject [the defendant] to unwarned questioning under conditions that would make it difficult for him to avoid them.” “We … infer that [the defendant]’s situation at the house would have left any member of the armed services reasonably feeling that he lacked free choice to extricate himself, and sufficiently compelled to answer to authority.” As a Boston, Massachusetts criminal defense attorney, I can tell you that the key to this reasoning is that here, the defendant had been ordered by his military superiors at the naval base to go to his home, where police were waiting for him as part of an orchestrated plan. The court didn’t feel that a member of the service in the defendant’s position would feel free to leave his own house under those circumstances: “To begin with, we think [the defendant] was in custody at the house under conditions that required the Miranda warnings, the want of which compels suppression of the statements given there. The dispositive basis for our [decision] goes to the weight to be assigned to the influence of military authority on someone in [the defendant’s] position when subject to the order he was given on the morning he was questioned.” [I]t is fair to say that whenever a member of the services is questioned in circumstances mandated by a superior’s order, he is in the situation that Miranda was meant to address, where the line between voluntary and involuntary response is at least so blurred that the Fifth Amendment guarantee is in jeopardy.”

Given the offense that was involved in this case, a lot of people might find this decision objectionable. I can understand that. But why is this case important? First, because as I said above, a lot of Massachusetts residents now have a family member serving in some branch of the armed forces – whether full-time or National Guard. That exposes them to potential interrogation scenarios such as existed in this case. Second, even if someone isn’t in the military, if police question someone at their home within an atmosphere that leads the person being questioned to believe that he is not free to leave the interview, that situation likely triggers Miranda Warnings. If those rights are not provided, statements made to police while in your home may be inadmissible in court. Third, Miranda Rights are among rhe most important and admirable of criminal law rights in America, and once they are chipped away at, we're all at risk of losing those rights.

Always remember: If you are ever questioned by police, ask if you are free to leave or otherwise terminate the interview. In general, when questioned by police in a criminal matter, it is best to have a Massachusetts criminal defense lawyer present.

A California trucking company, Inland Empire, hired two men to drive a tractor-trailer to Boston, a trip that driver Miguel Aguilar made at least 10 times in the past year. Last week Aguilar made the trip with novice driver Jose Cubias.

State police, working on a Massachusetts drug crimes investigation, pulled over the purple Volvo 18-wheeler with California plates. According to prosecutors, police asked the men a few questions. The suspects replied that they were California residents who were employed in that state, and they consented to a search of the vehicle. That’s when police found 66 pounds of cocaine and $570,000 in cash inside the vehicle.

Aguilar and Cubias were charged in Chelsea District Court on charges of Massachusetts drug trafficking and conspiracy to violate Massachusetts state drug laws. They were each held on $950,000 cash bail, and both men pleaded not guilty.

Aguilar’s lawyer said that her client had no idea what was in the truck.

As a Boston/Norfolk County drug crimes defense attorney, I see cases like this all the time. Knowing only information contained in media reports at this time, in my opinion, these men may be wrongly accused, as they were merely driving the truck and had no idea of its contents.

If you have been wrongly charged with a Massachusetts drug crime, call us. We are highly experienced at dealing with drug crimes and successfully defending clients who have been charged with Massachusetts drug offenses.

In another case, this past week Boston police pulled over a Providence, Rhode Island resident named Santo Gonzalez, in a routine traffic stop. They discovered that he had neglected to return his car to the rental company he had obtained the car from. While preparing the vehicle to be towed, police found 40 pounds of cocaine and 20 pounds of heroin in the car – having a street value of millions of dollars. Gonzalez pleaded not guilty and was held on $500,000 cash bail.

We have effectively defended cases involving a wide range of drug-related offenses, including the following:
- All Drug Possession cases
- All Drug Possession with intent to sell and/or distribute cases
- All Drug Trafficking cases
- All Drug Manufacturing

In Massachusetts, conviction of a drug offense can cause dire legal consequences, including mandatory minimum jail sentences and loss of a driver’s license. A criminal record of drug offense(s) can destroy a person’s career, and limit the chances to gain entrance to college or graduate school, and/or receive a scholarship. A drug offense record can also drastically limit the chances of obtaining citizenship in the United States, and can also result in deportation. A criminal record stemming from any drug conviction can follow someone for the rest of his or her life.

If and when you are arrested, it is important to have an experienced Massachusetts criminal defense lawyer on your side. If need be, we will even make “house calls” and consult with you at your convenience. Call us for a free consultation.

This blog isn’t entirely about criminal defendants’ legal rights. It’s about promoting awareness of safety in an unsafe world.

This became all too clear just a couple of days ago, when a 14 year-old girl in Lynn was almost the victim of a Massachusetts kidnapping, after an attempted abduction by a stranger in Lynn. Just a few steps away from Lynn Classical High School, the girl was by an assailant described as a teenage black male with a Haitian accent. Thankfully, the girl was able to break free from the abductor, who escaped. The girl told police that the suspect has yellow dots in his eyes, and a scar on his nose. She said he tried to drag her into a bright red , 4-dorr car with a rear seat that had yellow dots on it.

The mere thought of this happening to a young child is frightening and disturbing. And even though the principal of Lynn Classical High School told police that this is the first time in his 30 years being principal that an attempted abduction of a student had taken place, this incident should remind parents and students everywhere that safety and self-awareness should always be priorities whenever walking alone. Had this suspect been able to abduct this youth, the crime of kidnapping would be charged. If he is apprehended, he will be charged with, among other crimes, attempted kidnapping. As a Boston Massachusetts criminal defense lawyer, I can assure readers that safety should always be priority one.

Think that women are more frequently the victims of sexual assault?

As a Dedham Massachusetts sexual offense lawyer, I can tell you – it’s not the case.

According to a new report published in U.S. News and World Report’s HealthDay News, men with disabilities are four times more likely to be sexually assaulted than nondisabled men. This study was conducted by investigators at the University of Massachusetts Medical School and the Massachusetts Department of Public Health.

Their study revealed about 14 percent of men with disabilities had been victims of sexual violence at some point in their lifetime. This contrasts with less than 4 percent of nondisabled men.

And who were the perpetrators? Acquaintances and strangers, along with family members, caregivers and intimate partners. As a Norfolk County Massachusetts sexual assault attorney, I can tell you this is, tragically, no surprise.

The men in the study were considered disabled if they had limitations from physical, mental, emotional or communication-related problems.

It all goes to show you that men with disabilities are at a heightened risk for being victims of sexual violence and victimization, and that, sadly, women and children are not the only victims of Massachusetts rape and sexual abuse.

If you have a loved one who is disabled, and you suspect that he or she has been the victim of sexual assault, contact our offices for a free consultation. Or if you have a loved one in a nursing home who is disabled, regardless of whether that person is a man or a woman, and you believe he or she may have been the victim of sexual assault, contact us. We are experienced in handling Massachusetts sexual assault, rape and sexual violence cases, and if need be, we will also come to your home for a free consultation.

Having connections into the White House won’t necessarily spare someone from spending time in the Big House.

President Barack Obama’s uncle was brought before Framingham District Court earlier this week, where he appeared for a pre-trial conference hearing, after being arrested on August 24 on a charge of Massachusetts DUI/OUI, as well as other charges. At the time of his arrest, authorities learned that Onyango Obama, 67, who is the half-brother of President Obama’s late father, was also in violation of an almost 20 year-old immigration order to return to his native Kenya (apparently, he has been living in Framingham for quite some time.) As a result of that violation, Obama was taken into custody by U.S. Immigration and Customs Enforcement (ICE) authorities, but was released on September 9 by ICE officials without public comment. At the time, an ICE spokesman would only say that federal privacy laws prohibit agency officials from commenting on individual cases. True. I'll leave that alone.

At Obama’s court hearing earlier this week, his lawyer and prosecutors for the Middlesex County District Attorney’s office agree to continue the case until November 17 2011. This is not uncommon for many criminal charges, including OUI/DUI. At his earlier arraignment, Obama had pleaded not guilty to the formal Massachusetts charge of operating under the influence of alcohol. At the time of his arrest, it was reported that Obama told police, “I think I will call the White House’’ in order to arrange bail. Not a bad decision.

The case will now enter what is known as a Discovery phase, where prosecutors will be required to exchange certain information, including any exculpatory evidence (evidence that tends to exonerate the defendant,) with Obama’s defense attorney. As a Dedham, Massachusetts DUI/OUI defense lawyer, I can tell you that certain evidence will be key to determining the legal trajectory of this case. This includes whether or not Obama took a Breathalyzer test, what any blood alcohol content values were, how much time passed between Obama’s arrest and the administering of any Breathalyzer or blood alcohol content test, and whether or not the Breathalyzer machine was accurately maintained or calibrated. A number of pre-trial motions may be in order here, including Motions to Suppress, but as I’m not familiar with the details of the arrest and police report, it’s difficult to say precisely. Regardless, these charges show that knowing someone in high places won’t necessarily save someone from the long arm of the law. Aside from these immediate criminal charges that stem from Obama’s August 24 arrest on OUI charges, it’s clear that he’s going to have a number of immigration problems, and may be required to leave the country. I’ll leave that question to immigration law experts.

On February 6 2010, I posted a story about the arrest of a man on the Boston Common, after he had taken video of Boston police allegedly engaging in unnecessary use of force in arresting a man.

Simon Glick was walking along Tremont Street in Boston on October 1 2007, when he observed three uniformed Boston police officers using considerable force in arresting another man. Glick, now a practicing criminal defense attorney, was a law student at the time and suspected police brutality. His suspicions were reinforced upon hearing another observer shout “You are hurting him, stop!” at the officers. Glick video recorded the event with his cell phone. When the officers saw this they arrested him - for violating, they alleged, the Massachusetts wiretap law – Mass. Gen. Laws Ch. 272, § 99. The "wiretapping statute" criminalizes the "interception of wire and oral communications" and defines "interception" as the secret recording of the contents of a communication, without the permission of all parties to the communication (emphasis added.)

Massachusetts is known as a so-called “two-party consent” state, meaning both parties to a phone conversation or an otherwise private meeting must be informed of, and consent to, audio recording of the conversation, in order for that recording to be legally permissible. It was (and is) designed to prevent someone from secretly audio taping a phone conversation, or secretly audio taping a meeting being held. To almost no surprise among Massachusetts criminal defense lawyers, the criminal prosecution against Glick was later dismissed, particularly due to the fact that there was no "secret" recording of this event.

To his credit, Glick sued the Boston Police Department for violating his civil rights. The Boston Police argued that judgment should be entered in their favor, based upon the “doctrine of qualified immunity”, which essentially provides limited immunity to police officers in certain exigent, or emergency, situations. Last week, in Glick vs. Cunniffe, et. al., the U.S. Court of Appeals for the 1st Circuit ruled against the city. As a Boston Massachusetts police brutality lawyer, I could have told the city of Boston that it was wasting its time and money with this appeal. In fact, I predicted this legal outcome in my February 6 2010 post on this story. Quoting from the decision, the court’s three-judge panel wrote “We conclude that …Glick was exercising his clearly established First Amendment rights in filming the officers in a public space, that his … Fourth Amendment rights were violated by his arrest without probable cause. We (further) conclude that Glick’s recording was not ‘secret’ within the meaning of the Massachusetts wiretap statute, and therefore the officers lacked probable cause to arrest him.”

I don’t report on subjects like this to gratuitously criticize police departments or police officers. The vast majority of police officers that I know are decent, honest people, who mean to do the best job they can. But in almost any line of work, there are always those who abuse their positions of authority. And when that happens, the reputations of the majority of honorable police officers are lessened. That doesn’t do anyone any good – not the overall police department involved, not the wider police force affected, and certainly not the public they are paid to protect and serve. As a Dedham, Massachusetts criminal defense lawyer, I think a decision like this is actually good for police departments everywhere – because it reminds them of two things: 1) They are there to protect and serve the public – not abuse their legal rights and 2) Unethical police conduct will be punished by the courts. This is as it should be in any profession, across the board.

This will almost certainly result in the City of Boston having to pay out some serious money to Glick in damages. For the city, an unfortunate example of how this kind of conduct can bring serious financial consequences.