Legal Overviews

9:41 PM February 7, 2018

Dangerous Weapons

By |February 7, 2018|Court System, Criminal Justice, Legal Overviews|0 Comments|

Massachusetts laws are often written in colorful or archaic language. One such example concerns the offense of “Carrying a Dangerous Weapon” (M.G.L. ch. 269 §10).

Subsection (b) of this law deals with non-firearm weapons, and begins by enumerating a long list of weapons that are inherently dangerous, including a:

“stiletto, dagger or a device or case which enables a knife with a locking blade to be drawn at a locked position, any ballistic knife . . . dirk knife, any knife having a double-edged blade, or a switch knife . . . or a slung shot, blowgun, blackjack, metallic knuckles or knuckles of any substance which could be put to the same use with the same or similar effect as metallic knuckles, nunchaku, zoobow, also known as klackers or kung fu sticks, or any similar weapon consisting of two sticks of wood, plastic or metal connected at one end by a length of rope, chain, wire or leather, a shuriken or any similar pointed starlike object intended to injure a person when thrown . . . or a manrikigusari or similar length of chain having weighted ends”

This interesting list (klackers anyone?) lays out the weapons that, if found on the arrestee, are prohibited per se, as their dangerousness is self evident.

That begs the question… what if someone is arrested while carrying a weapon NOT on the list? The law accounts for that by outlining penalties for those who are arrested “armed with a . . . dangerous weapon other than those herein mentioned.” The key phrase of this provision is “dangerous weapon.” When a word or phrase, in this case “dangerous weapon,” is not explicitly defined by law, the courts construe it according to its common law definition, which is based on customary usage and prior court interpretation.

The Massachusetts Appeals Court tackled the “dangerous weapon” question in Commonwealth v. Turner, 59 Mass App. Ct. 825 (2003). In that case, an individual was arrested on a warrant, found with a folding knife in his back pants pocket, and charged with Carrying a Dangerous Weapon. At the time of the arrest, the defendant was not alleged to have been using or brandishing the knife; it was folded and in his back pocket.

The court broke down the term “dangerous weapon” into two subsets: (1) those that are inherently dangerous and (2) those that are “dangerous as used.”

Inherently dangerous weapons, are those that are “designed and constructed to produce death or great bodily harm.” This definition, in essence, serves as a catch-all for such weapons that, while not specified in the above list, are to be treated as if they were.

Weapons that are “dangerous as used,” was defined to encompass items that “become dangerous weapons because they are used in a dangerous fashion.” As an example, think of a large plumber’s wrench. The wrench itself is not designed to produce death or bodily harm, but it could certainly be used to that effect. If a plumber was arrested while using the wrench for its intended purpose, he ought not be charged with carrying a dangerous weapon. However, if this plumber was instead swinging the wrench around in a threatening manner, he could be.

In Turner, the court held that a folding knife, closed and secured in the individual’s back pocket, was not “dangerous as used” because the defendant did not use item in a manner “capable of causing serious harm or even the apprehension of serious harm.”

Long story short, while the charge of Carrying a Dangerous Weapon may initially appear hard to beat if a weapon is recovered pursuant to arrest, there are avenues available to mount a robust defense. Every case is unique and turns on the underlying facts and circumstances. Careful analysis of the facts and law is what skilled lawyers do, and I am happy to be of service.

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.

5:32 PM November 11, 2014

Overview of the Massachusetts Court System

By |November 11, 2014|Court System, Legal Overviews|0 Comments|

The Massachusetts court system is vast and can be confusing, especially for litigants going it alone, or pro se. Although we may think ourselves expert DIY-ers, attempting to navigate the courts without an attorney is akin to navigating Boston Harbor without a chart… you might make it, but the chance of running aground on submerged hazards is high.

Trial Courts

District Courts are the rough-and-tumble bedrock of the court system; there are 62 of them in cities and towns throughout the Commonwealth. In Boston, the various neighborhood district courts (e.g. Dorchester, Charlestown, East Boston) fall under the umbrella of the Boston Municipal Court Department. Boston Municipal Court (BMC) refers to the Edward W. Brooke courthouse which hears matters arising within the city’s downtown core. District Courts hear a wide range of matters, including civil, criminal, and juvenile. Criminal cases involve the Commonwealth as the plaintiff and the accused as the defendant. Criminal cases heard in District Court are limited to misdemeanors and felonies that carry maximum penalties of no more than five (5) years in prison. Civil cases involve disputes between individuals, businesses and/or public entities such as cities or towns. District Court civil cases are limited to those where recovery is not likely to exceed $25,000.00. When a case proceeds to trial, the “finder of fact” will either be a jury or a judge; when a jury is waived and the judge decides the case, that is called a bench trial. Whether to proceed with a jury trial or bench trial is yet another decision for which an attorney’s input is crucial, as each approach has its advantages and pitfalls. The District Courts also have Small Claims Sessions for civil matters up to $7,000.00. Small claims are heard by a clerk-magistrate, as opposed to a judge, and are geared towards pro se litigants. District court criminal, civil and small claims proceedings are open to the public, however, Juvenile proceedings are closed to the public due to the sensitive nature of the issues raised therein. Some District courts have special sessions for veterans, homeless, and substance abuse matters.

Superior Courts hear cases that exceed the District Courts’ limits, including criminal felonies punishable by prison sentences over 5 years and civil matters over $25,000.00. By this very fact, the Superior Courts are a little less hectic than the District Courts, and tend to involve larger, more complex cases. There are 20 superior courts in Massachusetts, and most are designated by the county in which they sit rather than the city or town. For example, in Taunton, you will find the Taunton District Court, and right next to it, the Bristol Superior Court. Many of the Superior Courts throughout the Commonwealth are beautiful, impressive structures, the type of buildings that inspire a reverence for the power of the law. The Superior Court has its own set of procedures which must be strictly complied with. Procedural missteps made by pro se litigants can very well doom otherwise good cases.

Probate & Family Courts hear matters such as: divorce, paternity, child support, custody, visitation, adoption, wills, estates, trusts, and guardianships. This is a specialized court with its own intricate set of procedures. While many litigants believe that they can handle such matters pro se, they often fail to protect their interests, and only seek out an attorney after they have received an adverse decision. The Probate & Family Courts are generally some of the oldest in the Commonwealth, and can be brutal, archaic, unpleasant places for all parties involved. In these crowded and chaotic settings, a lawyer will help you navigate the bureaucracy and expedite your case.

Other Specialized Trial Courts include the Land Court which hears matters regarding property disputes, foreclosures and local zoning issues. There is also a Housing Court which deals with residential housing matters, such as evictions, disputes between tenants and landlords, and residential code enforcement.

Appeals Courts

The Appeals Court is where you can challenge an adverse decision rendered at the Trial Court (District, Superior, Probate, Land, Housing, etc.) in both criminal and civil matters. Once a final decision is rendered at the trial level, any party may chose to appeal. Unlike a trial court case, the Appeals Court does not re-litigate the facts, hear from witnesses, or allow the introduction of new evidence. Instead, the Appeals Court examines the record from the Trial Court to determine whether a legal error influenced the judgment there. The lawyer’s role in the appeals process is to submit a written brief and make an oral argument as to why an error at the trial level worked an injustice on his/her client. Appeals are inherently risky, as judges of the Appeals Court extend substantial deference to their Trial Court colleagues. If, however, the Appeals Court finds there was a legal error at the Trial Court, it will most likely remand the case, which means to send it back to the Trial Court with specific instructions on certain points of law.

The Supreme Judicial Court (SJC) is the Commonwealth’s highest appellate court, and was established in 1692. The SJC hears both appeals from the Appeals Court, and appeals docketed in the Appeals Court but not yet heard. In the latter instance, the SJC has the authority to take the case from the Appeals Court and hear it itself; the SJC does this when a case involves a particularly important question, usually regarding constitutional law or public policy.

Final Thoughts: This has been a basic, non-exhaustive overview of the Massachusetts State court system. I have not touched on the Federal courts or State agencies with hearing power, such as the Commission Against Discrimination. I have limited this discussion for both brevity and the fact that for most people facing legal difficulty, the District and Superior Courts are where it’s at. As a trial attorney, I work within the courts for you. Don’t go it alone!