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William D. Kickham
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In Part One of my previous post on this subject, I discussed the Supreme Judicial Court’s recent ruling upholding the validity of a search warrant issued for the defendant’s computer, when the warrant was issued seven months previous to the computer’s seizure.  That case is  Commonwealth vs. Guastucci, SJC-12829, and the defendant was convicted of uploading and possessing child pornography on his computer.  A video of oral arguments before the SJC can be viewed by clicking here, courtesy of Suffolk University Law School.

Before going further, let’s define the legal standard that police and law enforcement must establish, in order for a judge to issue a search warrant.  Very briefly, it’s called “probable cause”.  Basically, this means that a judge must find that a substantial basis exists to believe that evidence of criminal activity may reasonably be expected to be located in the location searched “at the time the search warrant issues”  (Commonwealth v. Long, 482 Mass. 804, 809; 2019). Generally speaking, it is not overly difficult for police or a law enforcement agency to obtain a search warrant.   That being said, what made the Guastucci case notable was that the defendant didn’t deny any other elements of the crime he was charged with – it was his “staleness” argument over the search warrant that was at issue.   On appeal from his conviction, the defendant argued that the passage of seven months between the alleged upload of child pornography and the application for a search warrant rendered the warrant stale so that it lacked probable cause.

This legal argument failed. The SJC affirmed Defendant’s conviction of two counts of possession of child pornography, holding that the information in the search warrant was sufficient for a magistrate to have found probable cause, and that the information in the trooper’s application for a search warrant did not render the warrant so stale so that it lacked probable cause.

Search warrants have traditionally been the focal point of many an appellate court’s decisions in the area of criminal law.  This area of law is governed by the Fourth Amendment to the U.S. Constitution and here in Massachusetts by Article 14 of the Massachusetts Declarations of Rights, and is extremely important because it governs when and under what circumstances the government can search and/or seize items in your possession.  This is true whether those items are located in your home or on your person.

As a Massachusetts internet crimes attorney, I can assure readers that the fact that personal computers and smartphones are a now ubiquitous element of our everyday life, has elevated legal issues surrounding search warrants to a very high degree.  This fact was illustrated in a recent case on this legal topic decided by the Massachusetts Supreme Judicial Court, in Commonwealth vs. Guastucci, SJC-12829. Continue reading

I’ve written before about how the Obama-era regulations that defined and governed sex offenses under the federal law known as Title IX, were far too weighted against the accused.  “Title IX” prohibits discrimination on the basis of gender at colleges, universities and any educational institutions receiving federal funds.  The law is enforced by the U.S. Department of Education.

After an exhaustive review process overseen by US Education Secretary Betsy DeVos that spanned more than 2 ½ years and received more than 120,000 public comments, revisions and clarifications were made to the regulations  governing how colleges and universities respond to allegations of campus sexual assault and rape.  Colleges and universities across the U.S. must comply with the provisions of the new law by August 14.  If they don’t, they could lose tens of millions each in federal funds.

Some of the more important changes to the Title IX sex assault regulations include:

Here’s an update on how the Massachusetts District Courts are adapting to COVID-19:

Q.  Are all of the District Courts open during the COVID-19 crisis?

A:  Yes, all District Courts are open to conduct certain designated business and to conduct hearings in certain designated matters. As of July 13, some proceedings will take place in person. Other business is instead being addressed virtually by telephone, videoconference, email or comparable means. These are called “virtual hearings.”

A friend of mine and I were recently talking about our hope that the economy can be re-opened again – and soon.  One of the things he said to me was, “Yeah – I haven’t been able to hit the open road and hit the gas for a while.”  As a Massachusetts lawyer who represents clients who have been charged with, among other things,  motor vehicle offenses, I’m sure you can imagine what my response was.

Business shut-downs, stay-at-home orders, quarantines, and working remotely from home have all combined to create a kind of “mass cabin fever”.  That term, of course, originated from people being trapped in cabins during severe winter snowstorms.  Even under harsh winter conditions, people want to get outside after a few days.  But here it is, Memorial Day weekend — and we haven’t all been stuck inside for just a few days — it’s been a few months.  So the desire to hit the road is understandable – but if it’s done in a reckless, dangerous or illegal way, legal trouble could likely follow.  Criminal offenses for such operation include:

  • Operating After License Suspension or License Revocation

As I’ve blogged about recently, one very sad and troubling side-effect of the COVID-19 crisis, has been an increase in domestic violence.  As a Massachusetts domestic violence lawyer, I’ve seen this spike correlate with COVID-19.  It comes as no surprise:  People are under enormous psychological and financial pressure.   Kids are stuck at home, doubtless escalating those demands and pressure.  Even without kids to care for, couples feeling the prolonged stress can act it out in ways they would not have foreseen.  People are human.  And as I’ve said before, throw alcohol into the equation, and things can get out of control very, very quickly.  I’m posting this so that my readers can get a better idea of what constitutes “domestic violence” in Massachusetts, and what resources people can turn to if they feel it affects them, either as a victim or as someone who has been accused or arrested for this offense.

“Abuse” can be a wide-ranging term, but generally:

  • Physical abuse obviously includes hitting, punching, slapping, kicking, or attempting to strangle someone. In what might surprise some people, it can also include driving very recklessly for the purpose of intimidating a spouse, partner or family member.

A lot of consequences of the quarantine measures and stay-at-home orders flowing from the COVID-19 pandemic predictable were predictable:  Economic harm, educational impacts, hoarding at stores, transportation problems, etc.  But as a Massachusetts domestic violence lawyer, I can assure you that an even more disturbing impact awaited in this environment:  Domestic violence.  And it’s not surprising.  The number of phone calls I am getting from clients and potential clients that have been impacted by this not-so-unnatural phenomenon, has been unsettling, to say the least.

As I said, though, it’s not surprising:  Force people into their homes, limit their time outside, with almost no positive news but 24/7 broadcasts of the Apocalypse, doom and despair, and nerves are going to begin to fay.  Tempers are going to flare.  Frustrations are going to break through the surface.  Words are going to be exchanged.  Arguments are going to develop.  Add alcohol to this mix, and it’s downright combustible.  Notably, the Boston Globe recently published an editorial calling for all liquor stores in Massachusetts to be ordered closed until the current stay-at-home orders are lifted. Not a bad idea, in my professional view as a criminal defense lawyer.  All that it’s going to take is a phone call to the police from a next door neighbor or an apartment down the hall, and a series of very legally damaging events is going to take over, with very serious legal consequences.  You see, the subject of domestic violence is so much of a “hot button” issue, that no one in either law enforcement or the judicial system takes them lightly anymore.  Too many high-profile cases of domestic violence covered by the media have completely changed how police respond to these calls, and how District Attorneys’ offices and the courts deal with them. Continue reading

If you’ve been charged with a criminal offense in Massachusetts, and your case is currently pending, then yes, the current coronavirus or Covid-19 situation is definitely going to impact the timeline and management of your case.  It’s important that you understand how this pandemic has impacted the Trial Courts throughout Massachusetts.  What follows is a brief breakdown of how the courts in Massachusetts are handling this crisis, as of today’s date:

On March 17, 2020 the Massachusetts Supreme Judicial Court issued a standing order closing all courts for all non-emergency matters until at least April 6, 2020.  That guide can be found by clicking here.

From March 17 to April 6 2020:

While we’ve all been hearing about Coronavirus for the past two weeks or so, this past week has seen the most drastic and impacting of events surrounding this subject:

Seemingly, almost everything has been shut down around us: Important government offices & agencies, colleges & universities, grammar & high schools, sports games, businesses left & right.  Uncertainty seems to be the order of the day.

Unfortunately, regardless of this virus and the measures being taken to deal with it, many people will still face a variety of criminal law problems, both major and minor, during this period of uncertainty. As a result, our office has been receiving a lot of calls from existing and potential new clients, wanting to know both what the situation is with the court system, and wanting to know if they could still meet with me as their cases move forward, or if other legal problems suddenly develop. As for meeting with me, the answer is, yes. No one here has tested positive for this virus, and so long as clients that need to meet with me also have not tested positive for this virus, I am happy to meet with you at your home, as my website advertises, and obviously also speak with you by phone. No one who is facing a serious legal problem or issue should delay speaking with or meeting with an attorney due to this present issue. Continue reading

By now, most people have been exposed to what was the seemingly constant drumbeat of the recent Harvey Weinstein sex assault trial and convictions.  What’s interrupted this, of course, has been the media overkill on Coronavirus, but if that hadn’t diverted their attention, they’d still be pounding this drum.  For those of you who have forgotten the details, Weinstein faced several sex assault charges:  1) One count of first-degree criminal sexual act, two separate counts of rape and two counts of predatory sexual assault.  The charges were brought in state Supreme Court in New York.

Weinstein was convicted on two counts:   Committing a first-degree criminal sex act involving one woman, and of rape in the third degree concerning someone else.  He was acquitted of the charges of predatory sexual assault involving the two women and also acquitted of the one count of first-degree rape.

The charges and convictions were based on testimony by two actresses:  Miriam Haley and Jessica Mann, who wanted to perform in films that Weinstein’s company was producing.  Haley testified that in 2006 Weinstein forced oral sex on her, and Mann testified that Weinstein raped her in 2013, in the context of what she described as an abusive relationship.  Four other women, including actress Annabella Sciorra, also testified that Weinstein “sexually attacked” them, as part of his alleged attempts to use his influence in Hollywood in order to leverage sexual liaisons with current or aspiring actresses.

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