Articles Posted in Evidence Issues

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.

Courts – especially appellate courts – usually exist to apply the law, not advocate for specific changes in the law. Advocacy of that nature is typically the responsibility and territory of legislators, lobbyists and activists.

So it was with not a small amount of notice in the legal community in Massachusetts, that two Justices of the Supreme Judicial Court (SJC,) yesterday took the unusual step of advocating that the Massachusetts Legislature enact a change in a crime-fighting law that has existed since the late 1960’s. Enacted in 1968, this law is a wiretap law, which allows police and law enforcement investigators to use wiretaps only when the targets of the investigation are engaged in organized crime. In the case that was before the court for review, a man was recorded on tape admitting to a 2007 drive-by killing in Brockton. Prosecutors attempted to use the tape against the defendant at his Superior Court trial, but the tape recording was excluded from evidence by the trial judge, who ruled that the defendant’s activities did not fall under the definition of “being in connection with organized crime.” The Commonwealth appealed her ruling, and the SJC agreed to hear the case.

In a 7-0 ruling, The SJC stated that the language of the existing statute makes clear the specific type of criminals that police officials are allowed to surreptitiously tape record: Individuals in “a continuing conspiracy among highly organized and disciplined groups to engage in supplying illegal goods and services.” In the Tavares case, the court found that while this murder suspect (Tavares) and two other suspect under investigation by State Police were part of a “putative street gang,” Tavares did not qualify as being an “organized crime” figure. They concluded this because prosecutors did not introduce evidence that Tavares was part of what Massachusetts law describes as a “pecuniary enterprise, such as drug, gun, or contraband trafficking, or promoted some other unifying criminal purpose.”

In my previous post, I discussed a recent Massachusetts Supreme Judicial Court (SJC) ruling, concerning the admissibility of jail inmates’ recorded phone conversations. More accurately put, the decision concerns not so much the admissibility of these recordings in and of themselves, but in how the recordings must be obtained by prosecutors, before the recordings will be allowed as admissible. The court’s unanimous decision ruled that in prosecutors unilaterally drafting and presenting this subpoena to jail officials (a sheriff in this case,) and in obtaining these recordings in this manner without first obtaining a judge’s approval, prosecutors violated the Massachusetts Rules of Criminal Procedure by not obtaining prior court approval for the subpoena. Justice Margot Botsford, writing for the court, said that the requirement to seek prior court approval for pretrial subpoenas “seems especially appropriate in a case like this one, where the information sought recordings of the defendant’s telephone conversations are at least arguably confidential in some sense, whether entitled to constitutional protection or not.” The high court referred the case back to Middlesex Superior Court for a hearing to determine whether Odgren’s constitutional rights were violated in the first place, by the initial issuance of the subpoena for the recordings.

A central issue here, is leveling the playing field between prosecutors and defense attorneys on the issuance of pre-trial subpoenas. As a Boston criminal defense lawyer, I can assure you that this issue is always lurking beneath the surface, in courtrooms across the state. The reason is that historically, District Attorneys’ offices in Massachusetts had always claimed that they had the authority to unilaterally issue subpoenas for the pretrial production of evidence in a criminal case, without having to obtain a judge’s prior approval – whereas defense attorneys were required to obtain judicial approval for such subpoenas. Doesn’t sound too fair, does it? Notwithstanding, Middlesex County District Attorney Gerry Leone responded to the SJC ruling, by saying that prosecutors will continue to seek recordings of inmates’ phone conversations. “This decision clarifies the process that the commonwealth must follow to obtain communications made by incarcerated defendants who have previously been informed that their calls are being recorded,” Leone said. “It continues to be our position that this and other incarcerated defendants do not have an expectation of privacy regarding their jail calls. We will now move forward with the process the court has outlined to obtain those calls and are confident that we will prevail in these efforts.”

Odgren’s lawyer had argued that prosecutors were required to appear in front of a judge to request the tapes, and further that prosecutors needed to request specific days and times that were recorded, instead of large spans of recordings so they could try to “mine” the recordings for anything useful for the Commonwealth’s case. The court agreed, and as I read this opinion as a Norfolk County Massachusetts criminal defense attorney, it appears to me that the court may have left the door open to a future ruling that depriving a juvenile of any opportunity to communicate privately with his family about his case, might constitute a violation of constitutional rights. The other side to this argument, of course, (and not a completely illegitimate one,) is the fact that inmates, and those who are either visiting them personally and/or talking with them over the phone, are clearly informed beforehand that their conversations are being recorded.

In the constant tug-of-war between Massachusetts prosecutors’ offices and criminal defense attorneys over admissible evidence, the Massachusetts Supreme Judicial Court (SJC) yesterday issued a ruling against prosecutors, and in favor of defendants who are incarcerated and awaiting trial.

The case concerns a shocking event that occurred in January 2007, at Lincoln-Sudbury Regional High School, which I’ve blogged about previously (actually, it was my very first post on this blog). The defendant was a then-16 year old high school student by the name of John Odgren, now a guest of the Commonwealth at the Middlesex Jail in Cambridge (he was previously held at a juvenile facility in Plymouth, until he turned age 17). On January 19 2007, Odgren is accused of luring a fellow student into a boys bathroom in the high school – a student he didn’t even know and had apparently no history with – and plunging a 13-inch carving knife into his heart five times, killing him in a savage bloodbath. When the attack was finished, Odgren openly admitted to bystanders that he killed the boy. Witnesses reported that he even helped to try and stop the victim’s bleeding. His attorney does not dispute that Odgren committed this murder. His defense will be based on a legal principle known as “Lack of Criminal Responsibility,” which essentially means that the defendant lacked the mental capacity to understand the criminality of his act, or to conform his actions to the law. Reportedly, this defense will be based on Odgren’s assertion that he suffers from “Asperberger’s Syndrome” – a type of autism that can allegedly cause uncontrolled, violent behavior.

Prosecutors aren’t buying this claim, and to prove that Odgren does not suffer from any such mental disorder, Middlesex County District Attorney Gerald Leone’s office tried to obtain tape recordings of Odgren’s phone calls to family and friends outside the jail, as well as recordings of his conversations with visitors inside the jail (visitors are separated from inmates by a glass pane, and the inmate must communicate with such visitors through a phone). Inmates and visitors are advised in writing that all such conversations will be tape-recorded. The District Attorney wanted tapes of Odgren’s conversations, presumably to use them as evidence at trial to try to prove that he relates in a perfectly normal manner to other people – that he does not suffer from a mental disease or defect. If a jury were to hear recordings of conversations that Odgren has had with friends, family and visitors while in jail – in which he displayed no discernible evidence of a failure to understand his actions or exhibited no other evidence of mental illness – that would present a formidable problem for the defense.