Criminal Defense

December 12, 2016

U.S. Supreme Court Clarifies Rules Applying to Double Jeopardy Clause Cases: Bravo-Fernandez v. United States

For most people, the most notable component of the Fifth Amendment to the United States Constitution is the right to remain silent (“[not] compelled in any criminal case to be a witness against himself”). However, another important part of the Fifth Amendment is the so-called Double Jeopardy Clause.

Under the double jeopardy provisions of the amendment, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” While this seems like a straightforward rule, many issues have arisen over the years as to exactly how this part of the amendment is to be enforced in certain situations.

Recently, the nation’s high court revisited the provision in light of a jury’s conviction as to one offense but acquittal as to related offenses in a case involving bribery of a public official.

August 18, 2016

Massachusetts Revisits Issue of Pre-Breathalyzer Right to Counsel – Commonwealth v. Neary-French

By John C. Manoog III

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.

June 21, 2016

No Constitutional Right to “Speedy Trial” After Guilty Plea Has Been Entered – Betterman v. Montana

By John C. Manoog III

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.

March 24, 2016

United States Supreme Court Reverses Conviction in Massachusetts Stun Gun Possession Case – Caetano v. Massachusetts

By John C. Manoog III

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.

March 3, 2016

Terrorists, Cellphones, and the Right to Privacy – Should a Private Company be Required to Hacks Into Its Own Phones in the Interest of National Security?

By John C. Manoog III

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.

January 6, 2016

Massachusetts High Court Affirms Trial Court Order Requiring Commonwealth to Disclose Witness’ History of Cooperation in Other Cases – Commonwealth v. Forlizzi

By John C. Manoog III

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.

June 12, 2015

United States Supreme Court Rejects “Reasonable Person” Standard for Determining Criminal Responsibility for Threatening Another – Elonis v. United States

By John C. Manoog III

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.

January 21, 2015

Law Firm Did Not Have to Hand Over Client’s Cell Phone – In the Matter of a Grand Jury Investigation

By John C. Manoog III

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

January 7, 2015

Clerical Error Results in Police Arresting Man Who Had Already Paid Fine, Scuffle Ensues and Defendant Is Arrested on Additional Charges – Hunt v. Massi

By John C. Manoog III

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

December 17, 2014

Hollywood Actor Seeks Pardon for Massachusetts Felony Convictions in 1988

By John C. Manoog III

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.