Boston Criminal Attorney Blog

The Massachusetts Supreme Judicial Court (SJC) keeps churning out some interesting decisions, this one on the subject of the privacy, or lack thereof, that inmates and detainees in Massachusetts prisons can expect in their telephone conversations.

In a 4-3 ruling, the SJC ruled earlier this month that both prison inmates, and detainees (persons who have been arrested but not yet tried,) have "no objectively reasonable expectation of privacy" in their phone conversations. The ruling means that prosecutors and grand juries may access the recordings of those phone calls. The ruling applies to all kinds of detainees and inmates, from those accused of assault and battery to those convicted of sexual assault, rape and drug offenses.

The majority opinion, written by Justice Roderick L. Ireland, ruled that due to the fact that inmates and detainees are informed when they are first incarcerated that their calls are being recorded, "no privacy interest exists in the recorded conversations such that they cannot be obtained by a grand jury subpoena." The decision affirms a contempt order issued previously against Suffolk County Sheriff Andrea Cabral by Suffolk Superior Court Judge Thomas E. Connolly. Cabral had previously declined to provide a grand jury with telephone recordings of a particular pretrial detainee, even though she had received a subpoena for them. According to the decision, Cabral supported turning over the tapes to the grand jury, but was concerned that an unrelated Superior Court decision "called into question the propriety of compliance with grand jury subpoenas seeking recordings of pretrial detainees' and inmates' telephone calls." It was through her act of refusing to turn over the calls, that she sought a clarifying opinion from the SJC. And she got it.

Predictably, law enforcement officials supported the decision, arguing that it will help prosecutors capture crucial information in order to secure convictions of suspected criminals. Prisoners’ rights advocates, equally predictably, termed the decision a major departure from previous case law in this area. Principally, they feel that the ruling will disproportionately impact poorer detainees, who cannot afford bail, and hence have no other access to a phone.

Notably, the decision was graced by a stinging dissent from Chief Justice Margaret H. Marshall, who accused the majority of enacting "sweeping" and "erroneous" changes to existing case law. She felt that the state's Declaration of Rights does and should apply to recorded prisoner phone calls. She also expressed concern that the ruling will unfairly impact low-income detainees, who typically cannot post bail.

As a Norfolk County Massachusetts criminal defense lawyer, I think prisoners' rights must always be viewed through the prism of the constitutional presumption of innocence. However, emphasizing the indispensable prior warning given to all pre-trial detainees and convicted inmates, that their phone calls are being recorded while they are in custody, I think the the ruling is a reasoned one. Were that warning not clearly made, I would join Chief Justice Marshall in her dissent.

Striking down a city ordinance that I am sure was well-meaning and not malignant in its intent, the Massachusetts Supreme Judicial Court (SJC) yesterday ruled unconstitutional a city of Lowell ordinance making it a crime of youths under the age of 17 to be on city streets after 11:00 PM unless accompanied by an adult.

This case was a classic civil liberties challenge to government oversight of public conduct that, in itself, is benign. The municipal ordinance was passed by the city of Lowell in 1994, after that city was wracked by years of youthful violence and youth gang activity. Many such crimes involved Massachusetts drug offenses, including murder. In fact, only two months prior to passage of the ordinance, a 16-year-old was beaten to death in a gang-related slaying. The curfew banned persons under the age of 17 from being on the city’s streets unless accompanied by a parent or a guardian. The law provided several exceptions, including for youths who held night-time jobs, were on the sidewalk next to their homes, or were participating in certain recreational or religious activities. Individuals who were convicted of violating the curfew could be fined up to $300. They could also be deemed a delinquent and placed on probation. If they violated the terms of their probation, the law stated that they could be committed to the custody of the Department of Youth Services (DYS) until the age of 18.

For the years 1998 through 2002, city police arrested and arraigned an average of 60 juveniles a year for criminal violations of the curfew, according to statistics provided by the Asian American Legal Defense and Education Fund, an organization that helped support the legal challenge that overturned this law. That averages to about 12 arrests per year, or one per month. It should be noted that the Asian American Legal Defense and Education Fund became involved in this issue, due to the large concentration of Cambodian youths and families living in Lowell. Lowell Police have asserted for years that Cambodian youth gangs are numerous and dangerous in Lowell, and the facts have supported that claim. Cecilia Chen, a lawyer for the Asian American Legal Defense Fund, commented that the curfew upset Lowell’s large Cambodian community and claimed that police in that city engaged in racial profiling. “It assumes that youth are up to no good by simply being out at night,’’ she said.

The problem is, a lot of youths out on the streets late at night, are up to no good. Incidents involving assault and battery , sexual assault and rape were not infrequent in that city (as is true with other crime-plagued communities in Massachusetts). Kenneth E. Lavallee, Lowell police superintendent, said taking away from police the power of arrest deprives officers of a critical tool, especially for suspicious or repeat violators. “This whole ordinance was enacted to protect children, to keep them safe and keep them out of an environment where harm could come to them,’’ he said. “This wasn’t done to infringe upon anybody’s rights.’’

I believe him – and I believe that the intent behind this ordinance was entirely benign and laudable – to decrease violent crime in that violence-plagued city – crime that was visibly being committed by youthful offenders. However, as a Massachusetts criminal defense lawyer, I could have told the drafters of this ordinance that the problem was in the overbroad nature of the way the law was drafted. It simply went too far in criminalizing conduct that in and of itself was not criminal, and overreaching in restricting individual liberties; in this case, the right to walk on a public street.

Writing this opinion for the court, Justice Robert J. Cordy wrote, “The criminal processes and punishments provided in the ordinance . . . contradict well-established goals of rehabilitating, not incarcerating, juvenile offenders.’’ Essentially, the court found that the right to travel is a fundamental civil liberty, and any law that restricts that right must pass stringent constitutional tests, which this law did not. Importantly, however, the court left intact civil penalties for violators of that ordinance. Civil penalties impose fines, instead of subjecting the violator to arrest or detention. With some exceptions, the law will still allow police to fine juveniles who are found on the streets unaccompanied by an adult from 11 p.m. to 5 a.m. The fine for that violation is $50, and a written notice sent to the youth’s parents or guardians.

This ruling was important because, in an effort to battle youth crime committed at night, several Massachusetts cities and towns had enacted similar juvenile curfews, and this ruling is the first time a Massachusetts state court has ruled on whether such curfews are legal. (Other Massachusetts communities enacting curfews to curb crime, have included Lynn, Holyoke, and Chicopee).

Lawyers who successfully challenged this law plan to meet in the near future with Middlesex County District Attorney Gerard T. Leone Jr., as well as Lowell city lawyers, to discuss revising the statute. In my opinion as a Boston criminal defense attorney, they will re-write the ordinance to just keep the civil penalty – and I think that’s a good idea. I’d have only one recommendation: Put the fine at $100.00.

In a breakthrough ruling for police and prosecutors, the state's highest court has ruled that the Massachusetts Declaration of Rights (embodied in the state Constitution,) permits police to secretly break into a suspect’s car for the purpose of covertly installing a GPS tracking device.

Not only is the ruling a major boost to police investigators, but the Supreme Judicial Court’s (SJC) ruling was unanimous – which is somewhat of a rarity at the SJC. The decision, written by Justice Judith Cowin, upheld the drug trafficking conviction of one Everett H. Connolly, of Cape Cod. Connolly was convicted of a drug trafficking charge after he was tracked by State Police and found to be in possession of an amount of cocaine weighing 124 grams. The State Police were able to track Connolly, because in 2004, while in his vehicle, Connolly sold crack cocaine to an undercover police officer in Harwich. Police did not arrest Connolly in that undercover operation, but instead applied to a judge for a warrant to place a GPS tracking device in his van, to track his movements further. On Aug. 31, 2004, State Police installed the GPS device inside Connolly’s van while it was parked at his apartment complex.

When Connolly returned from driving to New York – where police had learned he obtained his cocaine – State Police tracked him on Route 6, stopped him and seized the van. Inside, they found the cocaine. After trial on the drug possession and trafficking charges, Connolly was sentenced to 12 to 15 years in state prison by Barnstable Superior Court Judge Gary Nickerson. On appeal, the court ruled that police use of GPS devices as an investigative tool – even when secretly breaking into a vehicle in order to install the device – does not violate the ban on unreasonable searches and seizures found in the Massachusetts Constitution. The ruling, however, requires that two conditions must exist before a GPS device could be secretly placed in someone’s vehicle: “The Commonwealth must establish, before a magistrate… that GPS monitoring of the vehicle will produce evidence’’ that a crime has been committed, or will be committed in the near future; and 2) The tracking units can only be installed for 15 days. By contrast, in most other matters, search warrants remain in effect for just seven days.

Judges, especially on an Appeals Court or the Supreme Court, can often arrive at the same decision through different legal reasoning, and this case was no different: Three of the SJC justices – Justices Ralph Gants, Robert Cordy and Margot Botsford –affirmed Cowin's conclusion. But they said the SJC must address the issue through the prism of privacy rights of the individual to be free from constant government monitoring, and not from a property interest (i.e., the vehicle as personal property belonging to the suspect.) Speaking for these three justices, Justice Ralph Gants wrote, “Our constitutional analysis should focus on the privacy interest at risk from contemporaneous GPS monitoring, not simply the property interest. Only then will we be able to establish a constitutional jurisprudence that can adapt to changes in the technology of real-time monitoring, and that can better balance the legitimate needs of law enforcement with the legitimate privacy concerns of our citizens."

So, police and prosecutors’ tools are rapidly expanding into the digital age and the 21st century. Some people see this as “Big Brother” becoming a reality and feel that when the police can secretly track your movements through covert placement of an electronic tracking device, as a society we aren’t far away from an Orwellian world. Some people think this is a wise decision, giving police and prosecutors the modern tools they need to keep dangerous people off the streets. As a Boston criminal defense attorney, I understand civil libertarians’ wariness of this ruling. However, as long as the ruling’s dual requirements are met that: 1) Police must obtain a warrant in advance of placing a GPS device by first convincing a judge or magistrate that a crime has been committed or will be committed; and 2) That the warrant (and hence use of the GPS device) are only valid for 15 days, then I think this ruling constitutes a fair balance between the competing legal interests involved.

Let’s hope that this turns out to be so.

I often wonder how people in some professions can sometimes do what they do, unavoidably exposed to what they must see as part of their work, and not give up entirely on the human race, the human condition. Beyond my own profession as a Massachusetts criminal defense lawyer, I’m thinking of two other professions: law enforcement and news reporting – because those two professions see the worst of what our world has to offer. Reading what follows, you will know what I mean.

Damian Merida is (almost was,) a 30 year-old Guatemalan. He immigrated to this country when he was young, after most of his ten brothers and sisters preceded him here, because they were living in a dirt-floor house inside a poverty-wracked village that had almost no food, medicine, employment, or future. As it had for so many others before his family, the United States beckoned as a place where a chance at making something of yourself, a chance at a decent life, still existed. He and his siblings settled in Lynn, Massachusetts. While he entered the country without legal approval – and while I can already hear the far-right’s cries of “He’s “an illegal” – he got what he deserved,” the fact remains that what I will describe was done to him, had no relation whatsoever to his being a legal or illegal immigrant. He could have had a file folder full of stamped and certified immigration papers on him, and this savagery would have happened anyway. (It’s also a fact that if any of the conservative right found themselves living in a dirt-floor hut in a dirt-poor country with no hope and no future, they’d enter this country any way they could, legally or illegally.)

On July 22, As Merida slept under a shade tree in Robert McManus Field in Lynn, a wide, grassy park about a mile from his house, a pack of children allegedly descended on the 30-year-old landscaper, and savagely beat him with a mix of bricks, bottles, sticks and rocks. The savage and inhuman attack has provoked questions and incited fear throughout this city and beyond, because according to the Lynn Police Department, Merida was targeted solely because of his ethnicity. His alleged attackers are six boys age 11 to 14; most were on championship sports teams, and one is an immigrant himself, from West Africa. Hate ran through their young veins – hate almost certainly inspired and cultivated by parents and older youths. Authorities are investigating whether this same group of boys was responsible for an attack in the Lynn area two weeks prior to the attack on Merida, on another man from Guatemala. Lynn police are urging the victim to come forward.

The Daily Item of Lynn has reported that the boys pleaded not guilty, and all but one is free pending trial. Lynn public schools suspended four of the boys indefinitely, which they reportedly have appealed. The oldest boy, age 14, is still in state custody. The sixth boy’s status is unclear. He reportedly attended St. Mary’s Junior-Senior High School last year but he did not re-enroll in the fall, according to school officials.

The boys face multiple assault charges, including armed assault with intent to murder, as well as a civil rights violation, due to the allegation that they allegedly targeted him because he was an immigrant. Acting Lynn Police Chief Kevin Coppinger reported that witnesses said the boys targeted Merida because he is Latino. Juvenile court proceedings in Massachusetts are private, and as a result, authorities would not confirm the boys’ names due to the fact that they are minors. This story goes from bad, to worse, to even worse: At least five of the six boys had won recognition in Lynn for participation in youth sports. Four were on Pop Warner football teams that were among the best in the state last year. One team was even praised in a ceremony last year at City Hall. Even worse? After the attack, the boys were allowed to play until the Merida family and others expressed outrage. One of the boys, a soccer star from West Africa, is still playing in a private league, according to his coach, who said he believes the boy is innocent. Not surprisingly, the coach would not provide his name.

Legally speaking, what are these boys facing, and what is the worst that could happen to them? Hold on to your seat: Under Massachusetts criminal law, the five boys who are under age 14 cannot be tried as adults, but rather only as juveniles. If found guilty, in all likelihood the worst legal punishment they would face would be that they could be committed to the Department of Youth Services until they reach 18 years of age. After that, they would be free. The 14-year-old could be held at DYS until he turns age 21. I’m told The Essex County District Attorney’s office is reviewing whether to try this youth as an adult. As a Boston criminal defense lawyer, I'd be stunned if they didn't.

Merida spent weeks in Massachusetts General Hospital, his face unrecognizable to friends and relatives, his body broken. Once strong, Merida has been transferred to Tewksbury Hospital, where he is learning to walk and feed himself. Family members say he has permanent brain damage and will never live and work on his own. Sometimes he suffers from long crying fits. His family is suddenly tens of thousands of dollars in debt. His family is trying to raise money to pay for his medical bills through Sovereign Bank.

Not only is this case a frightening, troubling reminder of the savagery that our culture is gradually succumbing to – fed by the rapid increase in violence in media of all sort and the decline of civil life in this country – it is also a call to reform the juvenile justice system in Massachusetts. I’ve blogged before about the injustices that can result from the present prohibitions on trying youthful offenders under age 14 as adults – and this case is Exhibit A.

This sickening, tragic event is right out of a horror movie - “Lord of the Flies” comes most appropriately to mind – and think about this: If any or all of these boys under 14 is found guilty, the worst punishment they could receive would be to be placed in DYS custody until they are 18. That’s it. Can you imagine trying to explain that result to the family of Damian Merida?

It’s stories like today’s, which would make anyone outside of the profession of criminal law or law enforcement, pause to wonder what it is inside people that causes them to sometimes act the way they do. Not me. As a Massachusetts criminal defense lawyer, I’ve seen it all. Yet today’s post is no less unfortunate than those that have preceded it.

The Worcester County District Attorney’s office reported yesterday (Labor Day,) that two Fitchburg area teenagers were killed in a fight that began over a parking space in a driveway outside a party. The Worcester district attorney reports that Nelson Geraldino, 18, was stabbed multiple times and that Pedro Genoa, 17, was shot in the abdomen and suffered other injuries in the early Sunday morning fracas in Fitchburg. Genoa's 18-year-old brother, Ronny Genoa, was also hospitalized with multiple gunshot wounds. Three suspects have been arrested: Two brothers who were injured in the fatal confrontation, Orville Carrion, 22 and Jose Carrion, 27, have been charged with murder and are being held without bail. Genoa's 18-year-old brother, Ronny Genoa, was also hospitalized with multiple gunshot wounds, and has been charged with assault with intent to murder and mayhem. Mayhem, as my website explains, is an aggravated form of assault and battery. This charge essentially alleges that the defendant either did or had the intent to dismember the victim or otherwise inflict grevious bodily injury, such as slashing someone’s face or amputating an appendage (ear, finger, foot, etc.) A knife or blade is commonly involved with such a charge.

Based upon my experience as a Massachusetts murder defense lawyer, I smell either alcohol or some other drugs involved here – in the sense that they caused this fight to escalate to murder, not in the sense that this was necessarily a drug deal gone bad (as can often be the case.) This case may have been a variant of road rage, a crime increasing in frequency. My advice to anyone involved in such a situation: Keep your head calm and your wits about you. Getting cut off in traffic, or losing a parking space to an inconsiderate boor, is nowhere near worth risking your life and freedom for.

This case is an interesting example of the importance of prosecutors – and defense counsel - taking care to watch what they say in their closing arguments to a jury, and of how a case can go awry in the last minutes of trying it.

In Berkshire Superior Court last year, a jury handed down a guilty verdict in a rape, assault and battery, and kidnapping case. Regrettably, rape cases are tried frequently in Massachusetts, and this case didn’t seem like any major exception. Except that in this case, the prosecutor went a little too far in his closing arguments. Non-lawyers usually don’t know this, but attorneys in criminal (and civil, for that matter) cases cannot just say’ anything they want’ to a jury, in their opening and closing arguments. Rather, opening and closing arguments must be limited to the evidence and the facts, and avoid inferential or suggestive comments to the jury. (Forget what you usually see on TV.) Sometimes, that line can be a hard one for a trial judge to find, but this case serves to better illustrate where that line is, in criminal cases.

In a ruling issued by the Massachusetts Appeals Court on September 1, the court vacated (meaning, disallowed) the rape ,assault and battery, and kidnapping convictions against one David E. Garcia, who was convicted in 2008 for the May 2006 rape, kidnapping, and assault and battery of his girlfriend, who at the time was 22. Because of a lengthy criminal history, Garcia was sentenced to 10 to 12 years in state prison. That’s one long stretch in a pretty unpleasant place. In trial testimony, the woman told the court that Garcia raped her after an argument over his allegedly cheating on her with another woman. The victim testified that Garcia would not let her leave his home, nor would he let her use the phone, at varying times hitting her and punching her during the ordeal. According to testimony, Garcia did not bring her home until the next day. (In case you’re wondering, the defendant’s act of not allowing the victim to leave the house is what constituted the kidnapping charge and conviction. Again, forget what you think you know about “kidnapping” from TV shows and movies, where only strangers "kidnap" someone.) Garcia acknowledged all of the above, but claimed that the sex was consensual.

The Appeals Court’s ruling concluded that the trial jury was tainted by the prosecutor’s call in his closing arguments to “vindicate’’ the victim, among other comments he also made to the jury. According to the Appeals Court’s ruling, at one point in the case, the prosecutor indicated the woman had been “revictimized’’ by having to recount her story to police and in court, saying “Talk about revictimization - how many times did she have to tell that story?’’ The prosecutor further told the jury that “your guilty verdicts today will acknowledge and affirm that what [the victim] said, what she did, how she acted, how she reacted, will be accepted and understood.’’

Citing case law in this area, the Appeals Court ruled “The prosecutor’s closing argument, ‘was the equivalent of an exhortation that the jury had a duty to the victims to render verdicts of guilty.’ ’’ Additionally, the court ruled that the trial judge did not take strong enough action, after those comments were objected to by defense counsel, to warn jurors that they must refrain from allowing emotions or sympathy enter into their deliberations. That will likely put a lot of trial judges on alert to pay careful attention to attorneys’ oral arguments to a jury.

A few prosecutors I’ve spoken with feel that this ruling too tightly constrains what they can and can’t say to a jury. As a Massachusetts criminal defense lawyer, I can understand that frustration, but the more both sides – prosecution and defense – stick to the facts and the evidence in their arguments to a jury, the more likely it is that a just verdict will result.