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Articles Posted in Criminal Defense

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Clearly, the United States Constitution guarantees the criminally accused the right to counsel. However, exactly when, and under which circumstances, that right first attaches is sometimes a point of contention.

Recently, Massachusetts’ highest court was called upon to revisit this issue as it concerned a defendant’s right to counsel regarding whether or not to submit to a breathalyzer test after being arrested for drunk driving.

In a previous case, the court had held that no such right exists, but the defendant pointed to a change in Massachusetts statutory law as a reason to change the common law as to this issue.

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People accused of crimes in the United States are afforded certain rights under the U.S. Constitution. Included within these rights are the Fourth Amendment right to be free from unreasonable searches and seizures, the Fifth Amendment right to remain silent to avoid self-incrimination, and the Sixth Amendment right to a speedy and public trial by an impartial jury.

Recently, the nation’s highest court was asked to consider whether the rights guaranteed under the Sixth Amendment also apply to the post-conviction or sentencing phase of a criminal prosecution.

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Many discussions between a person who has been criminally accused and his or her defense attorney begin with the assertion, “I was in the wrong place at the wrong time.” Perhaps never was this statement more true than in a recent case handed down by the United States Supreme Court.

In the case of Caetano v. Massachusetts, the defendant was identified by a store manager as a potential accomplice when police officers responded to an alleged shoplifting at a supermarket in Ashland, Massachusetts in 2011. The officers obtained consent to search the defendant’s purse, but they found no evidence of shoplifting. They did, however, find a stun gun and proceeded to arrest the defendant for violation of Mass. Gen. Laws, ch. 140, §131J, which prohibits possession of an electrical weapon.

According to the defendant, she kept the “stun gun” as a means of self-defense against an abusive ex-boyfriend, against whom she had obtained multiple restraining orders after he had beaten her so severely that she required hospitalization.

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In a case that is attracting nationwide media attention, the Federal Bureau of Investigation has demanded that Apple, Inc., provide technical assistance in the form of “unlocking” a cellular telephone (an iPhone, to be exact) in order to assist the FBI’s investigation into an alleged terrorist attack in San Bernardino, California, on December 2, 2015. Fourteen people died in the attack, which is believed to have been carried out by a married couple who may have been radicalized or have had ties to an international terrorist organization.

Although the couple was killed, federal officials were able to seize a phone that is believed to have belonged to them. Unfortunately, the FBI’s attempts to access the phone caused the phone to become “locked” instead. The federal agency then sought assistance from Apple, whom officials believed could help them hack into the phone and possibly retrieve information that would be useful in the ongoing investigation into the attack, including information about possible accomplices.

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In the civil court system, a case begins with the plaintiff filing a lawsuit against the defendant(s), setting forth the various claims under which the plaintiff seeks relief. As the case progresses, each side is afforded an opportunity to discover information about the strengths and weaknesses of the other’s case and, if desired, take depositions of the parties and the witnesses. It is usually a fairly straightforward process designed to encourage settlement whenever possible, although issues do occasionally arise.

In criminal court, however, the process of discovering the case of one’s opponent is considerably more difficult. To begin with, the Fifth Amendment protects the defendant from self-incrimination, so the Commonwealth’s discovery of the defendant’s case is very limited. Generally speaking, the defendant’s ability to discover the evidence, eyewitness statements, and other aspects of the Commonwealth’s case is much greater, but there can still be limitations.

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In a world in which it is possible for others, including police and other government officials, to monitor the vast majority of our communications with others via cellphones, computers, and other electronic devices, the line between legitimate state action designed to protect would-be victims of crimes and the rights of the criminally accused can sometimes get fuzzy.

So, too, can the question of what is a true threat to society or a specific individual and what is simply an exercise of one’s freedom of expression under the U.S. Constitution. Recently, the highest court in the land rendered an opinion in a case concerning some of these important issues.

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In the case of In the Matter of a Grand Jury Investigation, a certain law firm agreed to represent a client in April 2013. At the time, the client was under investigation by a grand jury, but an indictment had not yet been issued.

According to allegations by the Commonwealth, the client gave his cell phone to the law firm a couple of months later in connection with the firm’s representation of him. Nearly a year after the firm undertook its representation of the man, the Commonwealth sought judicial approval for a grand jury subpoena forcing the law firm to turn over the man’s phone. Continue reading

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People often react negatively to the experience of being arrested. There is a high level of embarrassment, a dread of impending confinement, and sometimes a significant level of pain as the arrest is effectuated. A recent case in the United States Court of Appeals for the First Circuit illustrates some of the issues that can arise during the arrest process.

The Facts of the Case

In June 2011, an arrest warrant was issued for the plaintiff on the grounds that he had failed to pay a traffic violation fine. In actuality, the plaintiff had paid the fine in question some time before, but a clerk had failed to record the payment. Unfortunately, however, this was not discovered by police until after the arrest had taken place. Continue reading

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According to the Executive Clemency Guidelines issued by Governor Deval L. Patrick earlier this year, “The grant of executive clemency is primarily to remove barriers often associated with a criminal record or sentence, therefore facilitating the reintegration of the petitioner into the community of the law abiding… [It] is warranted only in rare and exceptional circumstances.” Forty-three-year-old, Massachusetts-born actor Mark Wahlberg (known during his music career as “Marky Mark”) is seeking a gubernatorial pardon for crimes he committed in the late 1980s, hoping the Governor agrees with him that his circumstances are, in fact, exceptional.

Walhburg’s petition to the governor seeks relief from several crimes, including two counts of assault and battery by a dangerous weapon, possession of a controlled substance, and criminal contempt. At the time he committed the crimes, the actor was 16 years old and, he now says, under the influence of both narcotics and alcohol. Although he was a minor at the time, he was tried and convicted as an adult.

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We all have them, and most of us rely on them for much more than simply making a call. Cell phones have become a necessity of modern life, and we use them to communicate in many ways. We text. We surf the internet. We check our Facebook account. We read our email. In sum, we use them to run our lives and, in many cases, our businesses. Unfortunately, they can sometimes get us into serious trouble, including criminal charges.

So, What Happens to Your Cell Phone When You are Arrested?

In the recent case of Riley v. California, the United States Supreme Court addressed the increasingly common scenario in which a person who is arrested has a cell phone in his or her possession at the time of the arrest. In Riley, the defendant was arrested on weapons charges after being stopped for a traffic violation.

The arresting officer seized a cell phone from the defendant’s pants pocket and accessed information on the phone without seeking a warrant. Based upon information found on the phone, the defendant was implicated in a shooting. The defendant filed a motion to suppress the evidence gathered from his phone. The California trial court denied the motion, and the defendant was convicted. Continue reading