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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:

I’ve written previously in this blog about how unfair the federal Department of Education’s “guidelines” to colleges & universities has been over the past few years, regarding how colleges should conduct investigations and hearings on matters involving accusations of student sexual misconduct.  This system, known as “Title IX Investigations”  is tremendously unfair, and weighted in favor of the accuser.  Title IX is a federal law that was originally intended to be an anti-discrimination law, but it has expanded over the years to include not only claims of  sexual discrimination, but also sexual “harassment” as well as sexual “assault” – both of which are currently defined under extremely broad, all-inclusive terms.  Colleges and universities that receive federal funds  – which include the vast majority of universities in the U.S. risk losing enormous sums of money in federal funding – tens of millions per year at many schools – if they do not adhere to Title IX regulations.

These guideline notices were sent out to all colleges & universities across the country under the Obama administration. Known in the university community as “The Dear Colleague Letter” when it was sent to colleges across the country, it was effectively a threat, however veiled it tried to be.   The main thrust of this letter:  Colleges & universities were reminded that if they did not adhere to U.S. Department of Education guidelines on sexual misconduct investigations, they could potentially lose federal funds.  That’s massive amounts of federal funds given to individual schools, annually, all across the U.S.  The letter’s translation:  “Do what we at the U.S. Department of Education say regarding these campus sexual assault hearings guidelines, or we’ll yank all the millions in federal funds that you so love.”  In response, schools across the country complied with the “suggested guidelines”, and constructed archaic investigative and disciplinary procedures that overwhelmingly favored accusers over the accused.  These new protocols were given added life in the wake of the #MeToo ‘movement’, and the net result is that many college students accused of “sexual misconduct” have been railroaded off campus, with a school disciplinary record that will effectively haunt that student at whatever school they might attempt to transfer to. Continue reading

Now that summer is here and people are again flocking to Cape Cod & the Islands, a lot of people have been looking at news on actor Kevin Spacey.  As most everyone who knows this name knows, Spacey (real name:  Kevin Fowler), was charged last January in Nantucket District Court on Massachusetts Indecent Assault & Battery charges, accused of sexually assaulting an 18 year-old boy in the summer of 2016.  Spacey, of course, has pleaded not guilty, and recently, his attorneys have ramped up their legal defense, asking a judge to order that the alleged victim produce his cell phone to determine if relevant messages & data were deleted after the alleged incident.   The judge has granted the defense’s motion, and that phone will now be forensically scoured to determine if any data was deleted between the date of the alleged incident, to present.

Thus, more than a few people have asked me whether or not I think Spacey is going to seek a trial in this matter to seek a Not Guilty verdict, or possibly plead the case out to a less serious offense (such as ‘simple’ assault & battery), to avoid risking a conviction – and the publicity that would go with that.

Right now, it appears to me that Spacey may well elect to go to trial on this case.  The reasons that I sense this are primarily legal.  (However, Spacey put out a rather strange video on YouTube last December, in which he spoke in the voice of his now-famous “House of Cards” character, Frank Underwood, inferring that he would never admit to a crim he didn’t commit.  Regardless of this video, as a Massachusetts sex crimes defense lawyer, I think there are good reasons why Spacey should consider seeking a trial in this case (vs. “pleading it down”, to avoid both the public spectacle  of a trial, and the possibility of a guilty finding and potential jail time.)  Most of these reasons relate to evidence – specifically its veracity and admissibility.

My previous post on this subject discussed new regulations proposed by U.S. Education Secretary Betsy Devos, for use by colleges and universities that investigate allegations of sexual abuse, sexual assault or sexual harassment by students. Under the proposal, fewer allegations would be considered “sexual harassment”, and colleges and universities would be responsible for investigating only incidents that are related to campus programs and activities, that were reported to school authorities. Importantly, schools would be allowed to apply a higher legal standard when weighing evidence, than the lower standard of “preponderance of the evidence” that was encouraged by the Obama administration. I thoroughly endorse this change, as the correct evidentiary standard to apply when considering such serious criminal allegations, is, as anyone who has ever watched a crime show on TV or read a legal thriller is aware, “Beyond a Reasonable Doubt.”  Keeping that higher standard of evidence is critical when such serious accusations of sex crimes are leveled at a student.

Another major change in the proposed federal regulations, allows defense attorneys representing accused students, to cross-examine accusers and witnesses. As a Boston sex crimes defense attorney, I was stunned that the Obama administration would ever suggest the elimination of this central procedural safeguard. How anyone could ever claim to argue that any investigative process could ever reflect due process, or be substantively fair in any way without allowing the accuser to be cross-examined, is beyond me. This procedural right is central to any investigative or adjudicative process to ferret out the truth of any given criminal charges, and that this fundamental right was ever abandoned, was an outrage.  Shamefully, but not surprisingly, the association representing university presidents, the American Council on Education, has issued statements actually criticizing the restoration of this fundamental procedural safeguard when investigating or prosecuting accusations of criminal conduct. One excerpt of their comments: “[Restoring the process of cross-examination] goes too far in incorporating legal concepts into a school disciplinary setting. This would permit one student to hire a highly paid legal pit bull to grill another student in a campus disciplinary hearing. We are not courts. I’m not sure we should try to act like courts.” Continue reading

U.S. Secretary of Education Betsy Devos earlier today released a long-awaited series of formal proposals for how colleges and universities respond to accusations of “sexual assault” and conduct investigations into such incidents. The proposed revisions would update “guidance recommendations” previously put in place buy the Obama administration, and predictably, Democrats and “#MeToo activists”, howled their opposition, claiming the proposal would allow, perhaps even encourage, sexual assailants to prey on college campuses everywhere as well as allow schools to evade civil liability.

This is no surprise, as these “women’s rights activists” will never cease at their un-reasoned exercises in hyperbole and extremism, when ever anyone has the audacity to disagree with their imbalanced ideas of legal due process and, even, basic fair play. The proposed regulations originate from a 1972 federal law called Title IX, which was initially passed to prevent sex discrimination at colleges and universities that receive federal funding. Most of the law’s focus is on universities, but it also applies to and any other schools that receive federal monies.   The Obama administration had previously issued “guidance” to schools, which wildly favored accusers and nearly stripped accused students of almost any meaningful legal protections provided by the U.S. constitution.  Obama’s Education Department was able to accomplish this end-run around procedure, because their recommendations to schools were made outside the normally-required formal rule-making process.  The result?  Those “guidance recommendations” threw out almost any meaningful substantive and procedural legal rights for anyone accused of sexual assault — and furthermore, under the Obama “guidelines” – the definition of “sexual assault” was broadened so wide as to subject almost anyone to such an accusation.  Predictably, before reading any further, left-leaning feminist activists will interpret this post to be “anti-women” – or, to employ the prevailing lexicon they so favor, “misogynist”.  Not, neither this post, not any of my opinions, are “anti-women”:  They are pro-due process; they are pro-fairness; they are in favor of determining the truth in any given circumstance – not conducting a kangaroo court to satisfy the loudest protect group of the moment.

Employing the Obama administration’s “guidelines” (vs. formal rules), allowed Obama’s Education Department to essentially manufacture new proceedings that had no basis in any relevant statute or Supreme Court opinion.  Again, these “guidelines” – which despite being called “guidelines”, almost every campus in America adopted given the fact that over 95% of them are bastions of liberal thought, were the ultimate in an end-run around appropriate federal protocol. They were the product of militant feminist “activists”, who never cease in their proclamations of victim-hood and “oppression” – even in an era when women occupy, justifiably and with good reason, some of the most powerful positions in the country – in law, in government, in commerce & business, in medicine, in academia, and more.  These activists simply never cease their drumbeat of trying to convince people that every woman, everywhere, is oppressed, abused economically, and sexually pursued and harassed, wherever they go.  Odd – I don’t see that in any of the women I know, of a variety of ages, professions and backgrounds – and I’ve asked many women I know for their opinions on this subject.  Yet we’re told by militant feminists that this conduct is ubiquitous; omnipresent; everywhere, universal; constant.  Really?  As a Massachusetts criminal defense attorney who is in the courts every day, this sounds more to me like the dying breaths of once-active organizations like the National Organization for Women, which given all the advancements made in women’s interests, are now largely irrelevant, but to avoid a natural death, continue to declare otherwise through such dramatic claims of “oppression, everywhere”

Today’s post concerns Massachusetts sex assault accusations and charges – and I want to be very judicious and careful in what I’m going to say here. Sex assault and rape charges are very serious, and should therefore should not be dismissed lightly. As part of this reality, more than a few people can sometimes ask me, “Why do you defend people who are accused of sex assaults?” My answer is usually easy:  “Because they may be innocent, and they are entitled to a legal defense.”

Before going any further, I’m going to say something very sincerely, and I want my readers to know that I mean it 100 per cent: I have all the sympathy, and indeed, empathy, for anyone who advances a credible, believable claim of sexual abuse, indecent assault & battery, or rape by another person.  Man or woman. Young or old.  Of any background whatsoever.  But when such accusations are made, and the accused’s life, liberty and welfare are on the line, such accusations must be supported by persuasive, compelling testimony.   Just because someone is accused of sexual assault or rape, does not automatically mean that they are guilty of having done so.  Over many years in my career as a Massachusetts sex crimes defense attorney, I can’t (and obviously never would, due to attorney-client privilege issues), tell you of how many clients I have defended who have been accused of some type of sex offense – and yet they were entirely innocent of those crimes. Continue reading

In my previous two posts on this topic, I discussed how seemingly every day, more and more accusations of sexual “assault” are being leveled at people in public life (as well as private.) Many of these events are reported to be years, if not decades, old, and reflect highly questionable allegations.  Worse, it has been observed by more than one responsible journalist that if anyone dares to question the veracity of an accuser, or seeks to merely provide context to these accusations, that person is savagely attacked in the public square: Pilloried for having the audacity to inject perspective into this latest “debate” within a society that is addicted to controversy – the “Rage of the Day” or Crisis du Jour.”

Exhibit ‘A’ on this point: Actor Matt Damon. Damon had the utter audacity to opine in a recent interview that there are major differences between touching someone’s buttocks, and rape or attempted rape. Obviously, he was not speaking as an attorney because he isn’t one – and to me as a Massachusetts sex charges attorney, that made his comments all the more valuable, because he was commenting from a common-sense perspective. Damon wasn’t speaking from political correctness – and that what is made his comments so important. He noted how, prior to this current, frenzied climate of accusations of sexual assault, reason and probity would have otherwise prevailed – reason and probity that are now all but gone. He urged a return to healthy skepticism and careful investigation of such accusations, while not losing sight of needed context. Continue reading

In my previous post on this important subject, I talked about the literal explosion recently, in accusations and allegations of “sexual assault” being made against a wide variety of individuals – against the famous and anonymous alike.  I’m writing about this because I’ve been receiving a considerable number of phone calls recently – from both men and women alike – worried that they, too, might be accused of “sexual assault” – for the most minor of events.  For things that, frankly, strain belief that someone would make such a serious allegation.

This explosion of “sexual assault” allegations have followed the ‘shocking’ news that a physically unattractive Hollywood producer – Harvey Weinstein – had a “casting couch,” and pressured certain actresses for sex if they wanted to appear in his films.  To begin with, to my knowledge, the actions that Weinstein are reported to have engaged in – pressuring actresses to socialize with him and/or have sex with him if they wanted to see their careers advance in the film industry – can indeed be classified as boorish and tasteless.  If the allegations are true, Weinstein can indeed be called a social loser for having to resort to economic and career pressure to obtain sex.  But such suggestions by do not legally constitute “sexual assault.”  Far less do they constitute “rape.” Continue reading

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