Articles Posted in Criminal Appeals

Finally, there is some judicial pushback on what my various Attorney Sam’s Take comments has been screaming about.

At least, perhaps it is a start.

Maybe.

It involves an appeal from the prosecution’s side.

It failed.

Boston’s Supreme Judicial Court, the state’s highest court, ruled last Friday that judges cannot be forced to disclose to ethics investigators what the were thinking when making their rulings.  This is being heralded as a new kind of privilege, namely, a “judicial deliberative privilege”.

 The court was apparently unanimous in the ruling in which the court found that judges must not fear that the issues, laws, and personal views that underlie their rulings will be displayed to the public.

 The court ruled:

“We conclude that although holding judges accountable for acts of bias in contravention of the Code of Judicial Conduct is essential, it must be accomplished without violating the protection afforded the deliberative processes of judges fundamental to ensuring that they may act without fear or favor in exercising their constitutional responsibility to be both impartial and independent…In so concluding, we formally recognize a judicial deliberative privilege that guards against intrusions into such processes – a protection we have implicitly understood as necessary to the finality, integrity, and quality of judicial decisions.”

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As you have learned from reading this daily Boston Criminal Lawyer Blog, criminal laws are getting more and more complex. Changes in the laws take place all the time. This is but one of the reasons that I urge you to retain the advice and aid of an experienced criminal defense attorney when you find yourself an unwilling guest in the Halls of Justice…or, better yet, before you even enter the door.

Let’s take a crime of possession for example. In Massachusetts, not so long ago, the Commonwealth could present evidence that a gun is operable or that illegal drugs are present simply by submitting a certification from and expert into evidence. Nobody had to testify. Just the paper saying either the gun was operable or that what the police believed was cocaine was, indeed, cocaine.

Have you ever tried to cross examine a piece of paper? It is very difficult to do.

Finally, the courts ruled that a witness needs to testify to authenticate the document and answer questions about it. This is because a criminal defendant has the right to confront witnesses against him or her. How do you confront a piece of paper? Let alone the hearsay objections…!

This was a pretty major change in the law and has shaken up a number of criminal prosecutions. One such case was Commonwealth v. Barbosa, and it was handed down by Boston’s Supreme Judicial Court on Tuesday. In that case, the defendant was convicted of possession of a variety of things he was not supposed to have. He had a gun, he had ammunition and he had marihuana. Of course, what he did not have was a license to have any of it. The defendant appealed arguing, among other things, that the Commonwealth should not have been able to rely on simply submitting the certificate on the gun without a live witness. Further, the defendant argued that the fact that the Commonwealth was allowed to do so deprived him of his right to a fair trial. In other words, it was not a “harmless error”.

The SJC agreed.

Citing the earlier holding in Melendez-Diaz v. Massachusetts, the court held that because of the import of the certificate of examination, the evidence that showed the gun was operable, to the overall prosecution, this could not be considered “harmless” and so the conviction for the gun possession had to be reversed.

Attorney Sam’s Take On The Need For Experienced Criminal Defense Attorneys

Let’s take a scenario.
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Let’s first look at a recent United States Supreme Court case in point.

On January 18, 2012, the Court rendered its decision in Maples v. Thomas. The case wasa criminal appeal from a gentleman who had been found guilty of murder and sentenced to death in Alabama state court. Later, he sought post conviction relief in state court under Alabama Rule 32, alleging, among other things, that his trial attorneys failed to give him the effective assistance that is guaranteed by the Sixth Amendment.

Part of the problem was that this petitioner had missed the deadline before which such an appeal could be filed. Under the local law, his rights for such an appeal were therefore waived. The question became whether the facts of this particular case were enough “cause” to excuse this procedural default in state court.

Last week, the Court held that he had shown such cause as he had been abandoned by his lawyer and left unrepresented during the time he would have had to file. The Court further found that he lacked any knowledge of such deadlines on his own.

Attorney Sam’s Take On Incompetent Counsel

Being prosecuted for a crime, whether you are guilty or innocent, is hell. Nothing is going to change that. However, it is the belief of this Boston criminal lawyer that one thing that can make the experience more palpable is to have a defense attorney in whom you have faith and feel comfortable with.

“What if my case has been pending for awhile? Isn’t it too late to switch?”

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In my last blog, we discussed Boston’s Supreme Judicial Court’s new ruling in the case of Commonwealth v. Tremblay. I used this case to cap off about a week of blogs concerning Massachusetts search and seizure issues.

Through my experience as a Boston criminal lawyer, I have seen how the playing ground is not even between the prosecution and the defense. Some of it is necessary and perhaps even desirable. However, the government’s advantage goes much further than that point.

The reality is that the government has the power and the resources to coerce, cajole, wiretap and virtually anything else it deems necessary in order to build a case against someone. During this time, the suspect may not even know that anyone even suspects wrongdoing on his part. The problem is that, accept it or not, some people are actually not guilty of the things of which they are suspected. And, in the course of the investigation, friends, family and neighbors, not to mention associates, are often squeezed for the “right ” information…whether or not said information is the actual truth.

And then comes the investigative cherry on top…the suspect’s statement. As we have discussed, a suspect does not have to talk to law enforcement. However, people are scared when approached by investigators. And when those officers keep pressing the suspect with assurances like, “Hey, we only want to know your side of things, then you can go home. We know you are a good kid”…it gets pretty hard sometimes to refuse to “cooperate”.

In Tremblaly, the issue was whether or not the statement given to law enforcement was voluntary. In the case, the officers encouraged the suspect to speak by agreeing to take the statement “off the record”.

“Off the record” does not exist in such a situation. Police officers are not news reporters.

To make matters worse, lying to suspects is generally regarded as “good police work”. However, should the suspect return the favor…that would be the felony charge of Intimidation Of A Witness.

People often respond, “That’s not fair” when I explain this to them. I explain that the usual definitions of fairness, logic and justice often do not count all that much in a pending criminal matter.

The question is, will there ever come a time when we, or the appeals courts, will say “Enough is enough!”

Maybe.

At least this Boston criminal lawyer is hoping it will be said in a meaningful manner.

Attorney Sam’s Take On Judicial Warnings

The United States Supreme Court has held that, in order for a statement by a defendant to be admissible, the statement has to be knowing, intelligent, and voluntary. Instantly throwing what we usually consider intelligent, what does this mean? Is the law much different in Massachusetts? Does the highest Massachusetts court think there should be limits on police behavior when it comes to “voluntary” statements?

Kinda-sorta.
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Attorney Sam’s Take On Massachusetts Criminal Appeals

Your worse fears have been realized, The jury’s foreman has announced that the jury panel has found you guilty as charged.

Your Boston Criminal Lawyer turns to you and murmurs that it is “not over yet” and that he will be filing an appeal this very day.

Sounds great. Only one question. Does that mean its argued right now? Can you wait out the appeal process outside the walls of punishment? Most of all…will the Appeals Court recognize the jury’s tragic mistake?

Ok, more than one question.

Well, the answers to these questions tend to vary from case to case.

As I began to explain last Thursday, the job of the various appeals courts differ from that of the trial court.

The trial you just went through was to determine the facts. Presumably, the Commonwealth was successful at proving you guilty beyond a reasonable doubt. Both your Boston criminal lawyer and the prosecutor put before the jury various arguments and pieces of evidence. The person in charge of what evidence/arguments actually got before the jury was the Judge.

The jury has reached its verdict on you. One way to look at it is that it is now time for the appeals court to pass judgment on His Honor.

No, that appeal is not going to be argued today. Nor tomorrow. Not for several months at least in fact.
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Luis Melendez-Diaz (hereinafter, the “Petitioner”) has been convicted of being a Massachusetts drug dealer. This took place quite awhile ago. However, his case did not end after trial. There was an appeal. The appeal went on to change the face of Massachusetts criminal trial procedure…to a point.

You see, the Petitioner had a set of his drug convictions overturned by the United States Supreme Court in 2009 when it ruled that a criminal defendant’s right to confront accusing witnesses included certain expert witnesses. These were who prepared paperwork regarding testing such things as guns and drugs. Previously, the Commonwealth simply threw a copy of said experts’ reports in front of the jury and called it a day as to what said reports said (i.e., “Yes, it was indeed heroin”, “The gun really was an operable gun”, etc.).

In its ruling, the Court said that a defendant facing such evidence against him or her had the right to cross-examine a human being, not simply be left with said human’s paperwork. As you might imagine, it is very hard to cross-examine a piece of paper.

In the Petitioner’s first trial in Boston, prosecutors simply filed paperwork saying tests on powder seized from the Petitioner showed they were cocaine. After the successful criminal appeal, the Petitioner was tried a second time and acquitted in February.

The ruling created what became known as the “Mendez-Diaz Rule” and caused a number of cases to be challenged by convicted defendants.

However, all good things must end. Even in criminal justice.

You see, while this may have made more business for Boston criminal lawyers, it also presented a problem for the prosecutors and courts. Over-crowding issues aside, the courts were not ready to simply open the floodgates and allow everybody out of prison.

The Supreme Judicial Court has now put limits on the ruling. In a unanimous decision, the Supreme Judicial Court has left intact other of the Petitioner’s convictions for drug dealing as well as the 10-year prison sentence that came with them.

The SJC has now set a limit for the retroactive reach of Melendez-Diaz. This new ruling affects the Petitioner’s earlier convictions. The SJC said it will limit the reach of the Melendez-Diaz case to convictions after June 25, 2009, unless cases older than that have not yet been reviewed by an appeals court.

The Petitioner was arrested in February 2004 in the case this effects. He was convicted in 2005, and had his conviction upheld on appeal in 2007 and in 2008. The US Supreme Court issued its ruling on June 25, 2009. The mathematical result?

The Petitioner does not profit from his famous case a second time.

“We see no fundamental injustice or unfairness in applying Melendez-Diaz as a new rule with prospective effect,” Justice Robert Cordy wrote for the unanimous SJC.

Attorney Sam’s Take On Criminal Appeals And Supreme Court Rulings

When we discuss the criminal justice system in this daily blog, we generally refer to the part before any appeal. If a defendant is acquitted, then there is no appeal. If there is a conviction, however, most criminal defendants appeal the matter.
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The Massachusetts Supreme Judicial Court in Boston has ruled in favor of the prosecution. The type of case? Operating under the influence.

As you may know, when one is pulled over by police, and suspected of being under the influence of drugs or alcohol, one is offered the opportunity to try their luck in a variety of mini-contests. These would include various field sobriety tests as well as the breathalyzer machine.

The SJC has now ruled that the Commonwealth need not call a technician to testify that the breathalyzer used was working properly at the time in question.

The matter originated with a Greenfield woman who had been convicted of drunk driving. Her Massachusetts drunk driving attorney argued that, since the certification of the breathalyzer was introduced into evidence, that the defendant had the right to cross-examine a live witness with regard to said certification. The purpose, of course, would be to call into question how closely the machine had been inspected so that the jury could decide for itself whether they believed the machine was working properly.

After all, the United States Constitution’s Sixth Amendment indicates that a criminal defendant has the right to confront and cross-examine adverse witnesses. The defense argued that the certificate is testimony in itself and one cannot cross-examine a piece of paper. Thus, the preparer of said certificate should be called to testify by the Commonwealth.
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