Criminal Justice

5:24 PM November 6, 2017

Bail: What you need to know.

By |November 6, 2017|Constitutional Law, Court System, Criminal Justice, Legal Overviews|0 Comments|

Bail is a very important matter for those facing criminal charges. At arraignment, the Commonwealth, though the Assistant District Attorney, will often request bail. The Defense Attorney will also make a bail request, and then the judge must decide how much bail, if any, to impose.

A recent decision by the Supreme Judicial Court (SJC) has outlined the factors to be considered in setting bail. The most important development from this new ruling, Brangan v. Commonwealth 477 Mass. 691 (2017), is that a Defendant’s dangerousness is NOT a factor to be considered in setting bail.

If the Commonwealth is moving to hold someone without bail, it must hold a dangerousness hearing, which is a separate event from the arraignment; at such a hearing, both parties may introduce evidence, including witness testimony, regarding the Defendant’s alleged dangerousness. The Commonwealth bears the burden of showing that no less restrictive conditions of release (such as GPS monitoring or stay away orders) would mitigate the Defendant’s dangerousness to either specific individuals or to the community at large. Such hearings are largely reserved for particularly heinous crimes.

If dangerousness is off limits at arraignment, then what elements CAN factor in to a bail determination? The most important is the Defendant’s record of defaults. A default occurs when an individual fails to show up for court without justification. If a Defendant has a history of defaults, judges will often impose some bail to assure his/her presence at future court dates. Other factors that judges may consider include: the nature and circumstances of the offense charged, the Defendant’s record of convictions, family ties, length of residence in the community, character, and financial resources.

The Brangan decision further outlines the manner in which a Defendant’s financial resources may be considered. At the broadest level, the court must give each Defendant an individualized bail determination that takes his/her financial resources into account. This is particularly important to poor and indigent Defendants. As the SJC explained:

A bail that is set without any regard to whether a defendant is a pauper or a plutocrat runs the risk of being excessive and unfair. A $250 cash bail will have little impact on the well-to do, for whom it is less than the cost of a night’s stay in a downtown Boston hotel, but it will probably result in detention for a homeless person whose entire earthly belongings can be carried in a cart. What would be a reasonable bail in the case of one defendant may be excessive in the case of another.” Brangan at 700.

That said, the court is NOT under any obligation to set a bail that the Defendant can afford to post. The test instead is based on reasonableness; the amount of bail set must be no higher than that which would secure the Defendant’s appearance. Judges are required to detail in writing all factors they have considered in setting bail.

If the bail set by the court is not affordable, resulting in the Defendant being held in custody, he/she is entitled to a bail review hearing. For bails set in the District Courts, bail review hearings occur in the Superior Court; for bails set at the Superior Court, bail review occurs at the SJC in front of a single justice.

While Massachusetts maintains a presumption favoring release on personal recognizance, it is very important to have an attorney make a strong bail argument at arraignment.

12:29 AM August 17, 2017

On Civil Disobedience

By |August 17, 2017|1st Amendment, Constitutional Law, Criminal Justice, Legal Overviews|0 Comments|

A quick word to friends who are considering engaging in civil disobedience. Be prepared! If you disobey police orders, you are subject to arrest.

The police have broad power to enforce public order. During a protest, instigators are subject to arrest for “public order offenses” such as affray and disturbing the peace. Though the Boston Police tend not to arrest people in en-masse, if you repeatedly disobey an officer’s order, you will probably be arrested. (Note, State Police and Federal law enforcement agencies tend to be more aggressive).

More on resisting arrest… the Massachusetts Model Jury Instructions state:

“A person commits the crime of resisting arrest if he knowingly prevents or attempts to prevent a police officer . . . from effecting an arrest of [himself] or another by using or threatening to use physical force or violence against the police officer or another […]”

This language means you can get arrested for resisting yourself or attempting to help another resist. Also, the language allows arrest upon the “threat” of use of physical force. Individuals who do in fact use physical force against an officer will likely also be charged with Assault and Battery on a Police Officer (ABPO). Note: even the slightest application of force can be the basis for an ABPO charge.

After arrest, comes booking at the police station. At this point, most people are released, either on their personal recognizance to show up in court or by paying bail. Again, the police set this initial bail, and if a lot of people are being arrested, you may have to wait hours to be booked.

Upon release, you will be given a time to appear in court. That’s when to contact me! The sooner you have an advocate working on your case, the better.

That short of this is, if you are contemplating arrest, have someone to call who will post your bail! Write down that number and keep it on your body; assume your phone will be inaccessible.

To those advocating for justice and radical equality, thank you! As you take to the streets, be smart in your tactics.

5:37 PM April 14, 2016

Sealing Criminal Records (CORI) in Massachusetts

By |April 14, 2016|Court System, Criminal Justice|0 Comments|

Nobody’s perfect; if you’ve been charged with a crime, the charge, regardless of the outcome of the case, is likely a part of your criminal record, known in Massachusetts as your CORI (criminal offender record information). Such information is routinely used by prospective employers and landlords; if you have a criminal record, you may be disqualified for jobs or housing, despite your credentials.

Thankfully, the Commonwealth of Massachusetts has made it easier for individuals to have their criminal records sealed. Before getting into an overview of the process of sealing one’s record, it’s important to make a few key distinctions. First, sealing is different from expungement; the latter, in effect an erasure of your record, is not available in Massachusetts. Instead, when your case is sealed, a prospective employer who has requested your CORI report will see that you have no record. There are exceptions to this rule; sealed cased ARE visible to criminal justice agencies, such as police, probation, and courts, and certain State agencies such as the Department of Early Education, DCF and DYS. Sealing only applies to criminal cases, instances in which you have been charged with a misdemeanor or felony, not civil actions such as restraining orders. Finally, sealing only applies to your court and/or probation records; it has no effect on the underlying police report, which remains public information, though this is not included in a CORI.

Sealing Procedure

The method by which you may seal your criminal record depends on how your case was resolved:

If you were NOT convicted (found not guilty, case dismissed, acquitted, continued without a finding) then you may petition the court directly to have the case sealed. The mere fact that you were not convicted is not enough to justify a sealing of the record; instead you must show “good cause,” namely that the presence of the criminal charge on your record would cause you “specific harm.” Such harm could include you being disadvantaged in applying for jobs or housing. It is also important to show the court that you have made significant lifestyle changes since you were charged with the crime, such as drug treatment, anger management, etc. You may begin the sealing process at the conclusion of your case by filing a Petition to Seal Record [PDF] with the court, along with supporting documentation. A judge will review your Petition and either deny it or schedule a hearing. At the hearing, you (or your attorney) will make an oral argument supporting your particular “good cause” for sealing the record. The judge will then rule by completing a Findings and Order of Court on Petition to Seal Record(s) [PDF] form. Review this form before beginning the process; it enumerates the specific factors the judge will consider and thus should serve as a template for your “good cause” argument. Appeals are permitted. Finally, it is worth noting that these procedures also apply to individuals who WERE convicted of first time drug possession but who have otherwise complied with court orders.

If you WERE convicted (found guilty), then the procedure for sealing you records is different, namely you must wait before petitioning to seal. If you were convicted of a misdemeanor, you must wait five years and if you were convicted of a felony, you must wait ten years. The clock starts ticking on the latter of either: a) the date you were found guilty (if you were not sentenced to prison), or b) the date you were released from incarceration. Post-conviction probation does not affect these times. If you are convicted of any other crime during the 5 or 10 year wait period, the clock is reset; subsequent non-convictions have no effect on the wait periods. After the requisite time has elapsed, you must submit your Petition [PDF] to the Office of the Commissioner of Probation. Thanks to recent changes at the Probation Department, the wait time for these petitions to be processed has been reduced from months to days. The Commissioner of Probation will also entertain petitions from individuals who have been convicted of a offense that has since been decriminalized, such as the possession of under 1 oz. of marijuana; in such cases, there is no waiting period.

– – – – –

Regardless of your particular circumstances, it is advisable to have an attorney’s assistance when attempting to seal your records. If you are looking to seal your criminal record, contact me now; I will help you prepare and make your strongest argument so that you can get back to your life!

9:00 PM February 9, 2015

Crimes of Moral Turpitude, J-1 and J-2 Visas, and Deportation.

By |February 9, 2015|Criminal Justice, Immigration Law|0 Comments|

In addition to snow, the Metro Boston area has a lot of other assets, such as the fact that we are home to many of America’s top educational institutions. Beyond the academy, we have robust aerospace, defense, robotics and biotechnology industries. Our unique education to employment pipeline fosters innovation and attracts talent worldwide.

Many of our foreign students, scholars and researchers are residing here under the State Department’s J-1 work-study visa program; in fact, there are over 5,000 foreign students and researchers currently in the Commonwealth, most in the Boston area. Many of these J-1 visa holders are here with their spouses and children, who themselves may be granted J-2 visas. J-2 visa holders are afforded the privilege to study and seek employment themselves.

However, privileges come with responsibilities, and J-1 and J-2 visa holders have a heightened responsibility to steer clear of trouble with the law; if they are convicted of certain crimes, they can face deportation. These offenses include: “crimes involving moral turpitude” (more on that in a moment), drug charges, firearms violations and domestic violence. A “conviction” includes not just a guilty finding, but also the popular plea disposition of “continued without a finding” (CWOF). Thus while a CWOF may be a good outcome for a citizen-defendant, such a disposition could subject J-1 and J-2 visa holders to visa revocation and deportation.

**Crimes of moral turpitude, an excellent legal term if ever there was one, include an array of “inherently wrong” offenses, such as: murder, aggravated assault, rape, robbery, arson and fraud. It should come as no surprise that foreign guests who run afoul of the law in these areas should expect a swift reaction from immigration officials.

One category of deportable offense that presents the greatest pitfall to otherwise law abiding J-1 and J-2 visa holders is domestic violence. As domestic violence has come out of the shadows, and the stigma around it has been diminished, authorities in the United States have been taking an increasingly tough stance against offenders. Thus, many local police departments have adopted “mandatory arrest” policies.

Mandatory arrest policies generally state that if police can locate an alleged domestic abuser when responding to a 911 call, that person will be arrested. These policies are gender-neutral and strictly enforced, even over the other party’s objections. Such aggressive police responses may come as a surprise to J-1 and J-2 visa holders. In many countries, police responding to domestic calls act either as mediators, helping diffuse the situation, or protectors, removing the alleged victim from the household. In others yet, the police don’t even get involved. Thus domestic disputes amongst J-1 and J-2 visa holders, or allegations against such an individual, could spell big legal trouble.

If you are a J-1 or J-2 visa holder facing criminal charges, speak with a lawyer! The potential immigration consequences of a conviction can be drastic, and knowledge of the “worst case scenario” will help shape your defense. Don’t go it alone, especially if you are unfamiliar with the customs of our legal and law enforcement institutions.

  • SJC Marijuana Ruling
    Permalink SJC Marijuana RulingGallery

    SJC Rules that Smell of Unburnt Marijuana DOES NOT Justify Warrantless Searches of Cars.

4:46 PM July 10, 2014

SJC Rules that Smell of Unburnt Marijuana DOES NOT Justify Warrantless Searches of Cars.

By |July 10, 2014|Criminal Justice, Marijuana Law|0 Comments|

The Supreme Judicial Court just released an important decision regarding the police’s ability to conduct warrantless searches of automobiles based on the smell of marijuana.

Some background: In 2008, Massachusetts voters decriminalized the possession of one ounce or less of marijuana. This meant that if you were caught with an oz. or less, you would be subject only to a $100 fine and would face no criminal charges. As a matter of Constitutional law, in order for police to conduct a warrantless search of a vehicle, they must have reasonable suspicion of criminal activity. In 2011, the SJC ruled that the smell of burnt marijuana alone was not sufficient to justify a warrantless search of a car. There, the SJC reasoned:

Given our conclusion that [the decriminalization law] has changed the status of possessing one ounce or less of marijuana from a crime to a civil violation, without at least some other additional fact to bolster a reasonable suspicion of actual criminal activity, the odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity to justify an exit order.
. . .
[FN25] It is no longer reasonable for the smell of burnt marijuana alone to lead an officer to suspect that criminal activity is afoot, even if the odor is present in a so-called “high crime” neighborhood.

Commonwealth v. Cruz, 459 Mass. 459, 472, 945 N.E.2d 899, 910, 2011 Mass. LEXIS 171, 27 (Mass. 2011)

Whereas the Cruz case dealt with the smell of burnt marijuana, it left unresolved the question of what police could do regarding the smell of unburnt marijuana. That question was resolved yesterday in Commonwealth v. Matthew W. Overmyer. There, the defendant was involved in an accident and responding officers noticed a strong smell of unburnt marijuana in his car. The defendant admitted that he had some marijuana in the glove compartment, and gave the police access to it. However, after the police removed that marijuana, they still detected a strong odor of marijuana in the car. After applying some pressure on the defendant, he admitted that there was more marijuana in the car. Police commenced a search of the car and found a backpack containing large freezer bags containing smaller baggies of marijuana. As a result, the defendant was charged with possession with intent to distribute.

The case quickly made its way to the SJC; the Commonwealth sought the Court’s opinion as to whether the smell of unburnt marijuana was sufficient to trigger a “reasonable suspicion of criminal activity” thereby justifying warrantless auto searches. The Court held that it was not:

Although the odor of unburnt, rather than burnt, marijuana could be more consistent with the presence of larger quantities, it does not follow that such an odor reliably predicts the presence of a criminal amount of the substance, that is, more that one ounce, as would be necessary to constitute probable cause.

Commonwealth v. Matthew W. Overmyer

Thus the SJC held that the strength of the odor of marijuana was too subjective an indicia alone for an officer to determine whether a criminal (over 1 oz.) amount was present.

“We are not confident, at least on this record, that a human nose can discern reliably the presence of a criminal amount of marijuana, as distinct from an amount subject only to a civil fine. In the absence of reliability, a neutral magistrate would not issue a search warrant, and therefore a warrantless search is not justified based solely on the smell of marijuana, weather burnt or unburnt.”

Commonwealth v. Matthew W. Overmyer

This ruling is a victory for advocates of marijuana law reform. Given the SJC’s rulings subsequent to the 2008 decriminalization measure, this attorney predicts that legalization, as in Colorado and Washington, will soon render the 1 oz. rule moot.

Full Decision: Commonwealth v. Overmyer [PDF]

2:43 PM July 1, 2014

Sullivan Courthouse/Jail Empty at Last

By |July 1, 2014|Criminal Justice|0 Comments|

Ever wonder why the Cambridge District Court is located in Medford?

Until 2008, the Cambridge District Court, Middlesex Superior Court, Middlesex District Attorney’s office and Middlesex county jail were all located in East Cambridge at the Edward Sullivan Courthouse. The building is well known locally for its distinctive red stripe on the 17th floor; the courts and DA’s offices were located below the stripe, and the jail was located “above the red.”

However, the building, dating from 1971, suffered from a whole host of problems common to such brutalist style structures from that era, including asbestos, malfunctioning elevators, inadequate HVAC and inoperable windows. The building was deemed “sick,” and the cost of repair untenable.

In 2008, the courts and DA vacated the property; the District court is now in Medford, and the Superior Court and DA’s offices are in Woburn. However, from 2008 until this past weekend, the jail remained in use.

Jail, as opposed to prison, holds defendants who have yet to be tried and convicted. Whereas the jail had been constructed to hold 160 detainees, for years it had been severely overcrowded, often housing over 400. Without functioning air conditioning, conditions “above the red” were dirty and dangerous, especially at the height of summer.

This past weekend, all the detainees were moved to an expanded facility at the Billerica House of Corrections. The final closure of the Sullivan Courthouse promises more humane treatment for those, innocent until proven guilty, awaiting trial.

2:29 PM April 24, 2014

Federal Clemency Initiative

By |April 24, 2014|Criminal Justice|0 Comments|

In an effort to reduce the Federal prison population, the Department of Justice has begun a clemency initiative. This initiative offers non-violent offenders, who had been sentenced to long prison terms as part of the “war on drugs,” the opportunity to seek early release.

This initiative began late last year, when President Obama granted commutations to prisoners facing life imprisonment for offenses such as “conspiracy to possess with intent to distribute cocaine.”

To be considered under the program, inmates must meet the following criteria:

1) currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today;

2) non-violent, low-level offenders without significant ties to large scale criminal organizations, gangs or cartels;

3) served at least 10 years of their prison sentence;

4) do not have a significant criminal history;

5) have demonstrated good conduct in prison; and

6) have no history of violence prior to or during their current term of imprisonment.

These factors make the purpose of the program self-evident; non-violent offenders with otherwise clean records, who were sentenced under mandatory minimums or other harsh drug laws, may now seek to have those sentences commuted.

If you or a loved one need assistance under this new program, please be in touch.

2:47 PM January 31, 2014

Veterans Treatment Court at the BMC

By |January 31, 2014|Criminal Justice|0 Comments|

The Boston Municipal Court (BMC) has recently established a special veterans treatment court session. The purpose of this new offering is to “incorporate rehabilitative and treatment services for veterans by providing them with the tools and services to help them overcome substance abuse issues, alcoholism, mental health issues and emotional disabilities.” If you have spent time in Boston, you are probably aware that many of our area’s homeless are veterans; sadly, mental health issues often land these individuals in court.

The veterans program at the BMC is modeled after a pilot program started in 2012 at the Dedham District Court, which has proved to be successful. In fact, late last year, the first group of veterans to participate in the program “graduated” after completing the approximately 18-month treatment and community integration program. The idea of such special court sessions for veterans is relatively new; the first was established in 2008 in Buffalo, NY, and since then has spread to over 35 states.

Should the program at the BMC prove to be successful, as in Dedham, it is likely to be adopted by other courts throughout the Commonwealth. This program is a positive addition to the current court system, which struggles to address the underlying factors that entangle many in the criminal justice system. As we owe a particular debt of gratitude to our veterans, this new court could not be more timely. Perhaps the rehabilitative services extended to veterans will one day be available to all criminal defendants who are willing and ready for change.

More information: