On September 19, 2017 the Massachusetts Supreme Judicial Court decided the case of Commonwealth v. Gerhardt, SJC – 11967. This dealt with the admissibility of field sobriety tests as they relate to operating a motor vehicle under the influence of, or OUI marijuana. The Court held that in these cases, the term “field sobriety tests” cannot be used in court, rather the tests can be called “roadside assessments”. The Supreme Judicial Court further held that the officer cannot conclude that the driver passed or failed the test. Finally, the Court in Gerhardt crafted a jury instruction addressing the value of the roadside assessments that strongly assists the defense in these cases. Continue Reading
According to a recent report, Alexander Bradley, one of Aaron Hernandez’s friends has testified before a Bristol County grand jury. Bradley is the “friend” whom Hernandez allegedly shot in the face in Florida this past February. Bradley is also the friend who was driving drunk with Hernandez in the car this past January. There are no criminal charges pending against Hernandez stemming from the Florida shooting.
Massachusetts Criminal Defense Lawyer, Grand Jury Proceedings
This article made me thing about the grand jury process in Massachusetts and how it works. As a Massachusetts Criminal Lawyer I frequently challenge the integrity of the grand jury process hoping to get cases dismissed. Often however I ignore the mechanics of these proceedings, something worthy of discussion. For the most part, people are summonsed at random each month to serve on a grand jury. Out of the total called to court twenty-three people sit for a period of months. The number of months during which they serve varies from county to county. The grand jury does not meet every day. The impaneled jurors are given an oath. They then elect someone to act as the foreperson of the grand jury. The foreperson is empowered to administer oaths to the witnesses who are to testify before the grand jury. In Massachusetts witnesses who appear before a grand jury can have an attorney present with them.
Initially at least the grand jury process is done in secret. The grand jurors hear evidence presented by the district attorney through witnesses. The evidence must satisfy the elements of the crime and establish the identify of the accused. The standard of proof necessary to return an indictment is “probable cause”, the lowest standard of proof in the American legal system for criminal matters. The indictment once returned may be held until the arrest of the defendant. To secure an indictment there must be the agreement of at least twelve of the grand jurors. The grand jury can also “no bill” a case. This means that it has not secured the necessary twelve votes to indict. Anyone held in custody while waiting for a grand jury to hear the case will be released immediately upon the grand jury issuing a “no bill”. The deliberation process is done privately. The district attorney or prosecutor cannot be present while the grand jury votes.
There are ways to challenge indictments. One is to show that the district attorney failed to present enough evidence to show that a crime was committed and that the crime was committed by the defendant. Challenges like this are brought by motion to dismiss or what is known in Massachusetts as a McCarthy motion. Another way to try to get a case dismissed involves a challenge to the integrity of the grand jury process. Here, if the defense can establish that the grand jurors were misled by a lying prosecutor, police officer or other witness a judge might be persuaded to dismiss the case. Cases that are dismissed due to grand jury proceeding inadequacies are often re-indicted. This gives the district attorney another opportunity to charge the defendant with this crime. To avoid this, an experienced criminal lawyer might not move to dismiss prior to trial but leave this issue open to ensure success on appeal if necessary.
The grand jury process in Massachusetts is fertile ground for litigation that might result in success for the accused. This makes your choice of a criminal defense lawyer critical.
Paul Souza, a Boston Police Fire Department lieutenant has been charged with OUI, Malicious Destruction to Property Over $250, Assault and Battery and Failure to Stop from a Police Officer stemming from his involvement in an incident in Braintree this past Friday. According to reports, Souza cut off a car that pulled out of a parking lot in front of him. Souza then confronted the driver, broke his window, shouted obscenities at him and fled. The victim followed Souza. He called the police. Souza then tried to evade the police who ultimately apprehended him. The police detected alcohol on Souza’s breath and indicated that he was uncooperative at the time of the stop. The case is pending in the Quincy District Court.
Quincy, Massachusetts OUI, Assault and Battery Lawyers
Cases like this are difficult for Massachusetts Criminal Defense Lawyers to defend successfully at trial. The district attorney would use Souza’s behavior as his or her best evidence of the OUI charge. They would argue that alcohol either triggered his violent behavior or prevented him from maintaining his composure. Trying to evade the police and being aggressive upon apprehension are also factors that would support their position. Given Souza’s rank it is unlikely that he has a criminal record. I would imagine that his lawyer will be successful in getting these charges continued without a finding. A consequence will probably include the 24D program and perhaps anger management counseling. I am willing to bet that this case does not go to trial.
Just before Thanksgiving Massachusetts Police set up a sobriety checkpoint in North Andover, Massachusetts. According to many reports Kenneth Howe, a forty five year old father of three was a passenger in a car being driven by a friend. The car was pulled over at the sobriety checkpoint. Howe might have had a marijuana cigarette in his possession that he was trying to extinguish. When asked to get out of the car he jumped out of a window, supposedly struck an officer and attempted to run away. He was quickly apprehended. Other reports suggest that Howe was dragged out of the car by a female trooper who claimed that Howe had assaulted her. A friend of Howe’s who was present at the time stated that up to twenty police officers descended on Howe. The lawyer for Howe’s family, Frances King commented that the “police acted like savage beasts” and that a witness overheard officers stating it was a “good thing we had flashlights”. Howe was taken to the police barracks in Andover where he collapsed during booking. He was taken to the Lawrence General Hospital where he was pronounced dead.
Almost every time I have a client who has been charged with Assault and Battery on a Police Officer the client comes into my office looking pretty beat up. There is no secret in Massachusetts Criminal Legal circles that this charge is filed anytime the police get overly aggressive with a suspect. Defense attorneys, judges and prosecutors know this and often the result of the case; i.e. a dismissal of this charge reflects this sentiment. The best thing defense attorneys can do in a case like this is go to the crime scene and look around for surveillance cameras. Post 9-11 many businesses and government structures such as schools, highways, bridges and even police vehicles have installed videotaping equipment to monitor suspicious activity. In this case, if there is video evidence of this incident I have no doubt that Attorney King will find it. She is an excellent attorney who knows firsthand how law enforcement officers operate.
I am more curious to see how the Essex County District Attorney’s Office handles this case. If Attorney King’s witnesses’ account of this event is accurate, what will Mr. Blodgett do? Twenty or even ten police officers beating a man to death at a sobriety checkpoint is nothing short of murder. How can these actions be justified? How injured was the female trooper? Did she go to the hospital? The law on self-defense in Massachusetts is clear. You can use no more force than is necessary to defend yourself. Was it necessary to use force sufficient to kill Howe? And would it not make more sense for an independent agency to investigate this case? After all, Mr. Blodgett’s office prosecutes cases that many of these officers have investigated. If ten or twenty civilians went to the aid of a female friend or colleague who claimed to have been struck by a stranger and beat him to death you can be assured that Mr. Blogdett would respond with indictments. One thing you can be sure of. If Jonathan Blodgett does not properly investigate this case, Frances King will.
Over the weekend Michael Farfard was stopped for speeding in Worcester County Massachusetts. Police then searched through his eighteen pack of Budweiser beer. In it they found over forty seven grams of cocaine. The charges: trafficking cocaine, OUI, 2nd offense, OUI drugs, using a motor vehicle during the commission of a felony and numerous motor vehicle crimes.
The drug trafficking charge is the most serious crime that Farfard must defend. The crime of trafficking over twenty eight grams of cocaine in Massachusetts carries a minimum mandatory five year state prison sentence. If there is a school zone violation involved then another two year mandatory sentence must be imposed. In the more rural Massachusetts counties you typically do see have as many school zone charges. In Suffolk County Massachusetts a large majority of drug cases have school zone violations as a component. This is primarily due to the population density in the county and the fact that there are hundreds of schools throughout the City of Boston and Suffolk County.
From this article it appears that the strength of the district attorney’s case will depend on the constitutionality of the search. The prosecution must show probable cause to stop Farfard’s vehicle. They must also show that the police had probable cause to search seize items in Farfard’s car. Even if they are able to show that the search and seizure was within constitutional limits they have to prove beyond a reasonable doubt that the cocaine was Farfard’s and that he intended to distribute the substance.
The Lynn Item reports today that a 28 year old Peabody man was arrested for drunk driving, fourth offense. The defendant, Robert Farley was held without bail pending a dangerousness hearing. It is alleged that Farley was driving 79 mph on Route 1 at 1:30 a.m. Police followed the car watching it weave between lanes and around cars without signaling. Once the police activated their lights Farley slowed but failed to stop for a lengthy distance. Once stopped the defendant appeared unsteady on his feet and swayed from side to side falling backwards towards the hood of his car. Police located an open container of alcohol and several empty beer cans in the car. Farley was in possession of illegal prescription drugs and was operating without a license or registration in his possession. Nearly 3 hours after his arrest Farley asked a trooper if he believed that he was still drunk. The trooper conducted several field sobriety tests at that time and related in essence that four of six administered had been failed. A police report indicated that the suspect had to be told five different times in the course of two minutes the location of where his car had been towed. Read Article, Lynn Item, December 30, 2008.
So how much trouble is Farley in? Well first, he is being held without bail pending a hearing on dangerousness. Dangerousness is governed by Massachusetts General Laws Chapter 276 Section 58A. That statute permits the prosecution to move a judge to detain an individual pending trial. The judge must hold the suspect in custody until a hearing can be scheduled. The statute permits the prosecution 3 days to prepare for the hearing. This means that if the prosecutor wants to move for detention based on dangerousness and they are not ready to proceed with a hearing the judge, upon their request, must hold you for as many as 3 days if this is the time necessary for the prosecution to prepare for the hearing. It appears that the prosecution is afraid that Farley, given his criminal history and relative youth is a risk to the public and that incarceration is in the community’s best interest while his case is pending. After the hearing the judge can impose virtually limitless terms for release, or he may simply decide to detain Farley pending trial.
This however is only the beginning for Farley. He must also defend the 4th offense drunk driving charges. If convicted of a 4th offense OUI you must serve at least 1 year in jail. There is a potential 5 year prison sentence if the case is indicted and tried in the superior court. There is also a 10 year loss of license and a hardship license will not be an option for at least 5 years and for up to 8 years.
Rarely does the prosecution have the right to appeal from a jury verdict. However, in Commonwealth v. Dery, Slip Opinion December 23, 2008 it looks like the prosecution did just that – – and lost its case in the process.
The defendant Zachary Dery was tried on September 13, 2007 for OUI and other traffic matters. The impanelment process commenced and due to the parties striking prospective jurors the panel was reduced to 5 members. The judge told the defendant that he could proceed with 5 jurors. The defendant consented to trial in that manner freely and willingly. No written waiver was filed and the prosecution never lodged an objection to this process. The defendant’s gamble paid off and he was acquitted of the OUI charges.
For some reason, not explained in the Court’s opinion the Commonwealth tried to have the case restored to the trial list claiming that 5 jurors cannot legally decide the case and that the defendant never signed a jury waiver in accordance with Massachusetts Rule of Criminal Procedure 19(b). The trial judge refused to allow the prosecution to retry the case and an appeal followed.
As to the constitutional argument, the Supreme Judicial Court held that a trial by a jury of less than six jurors survives constitutional scrutiny provided the defendant consents to this procedure. Contrary to the position of the prosecution, a five person jury trial is not a nullity. In another case also decided today that sentiment was explained. See Commonwealth v. Nicoll, Slip Opinion December 23, 2008. As to the failure to sign the jury waiver pursuant to Massachusetts Rule of Criminal Procedure 19(b) the Court held that the prosecution’s failure to object at the time of the waiver resulted in a forfeiture of its rights and that Rule 19(b) serves as a safeguard for the benefit of a criminal defendant. In addition, in this case Rule 19(b) might not have been applicable in that jeopardy, which is a prerequisite for Rule 19(b) had not yet attached.
The Boston Herald reports today that a Massachusetts State Trooper may have committed perjury while testifying at a drunk driving trial in the Quincy District Court. During cross-examination at a November 24th trial the trooper, Kathleen Carney denied that she was facing any potential disciplinary action. In fact, Trooper Carney was being investigated for allegations of brutality involving a 35 year old Quincy woman whom Carney had arrested in August of 2008. Boston Herald writer Jessica Van Sack reported that after a December 1, 2008 hearing Trooper Kathleen Carney was placed on restrictive duty pending a continuing investigation of the brutality charges.
The following day Carney appeared in the Quincy District Court again in connection with another drunk driving charge. The prosecution however refused to call her as a witness and the case was dismissed. At this time it appears that Norfolk County prosecutors will not call Carney to testify on any of their cases on which she is a potential witness.
Perjury in Massachusetts is a crime pursuant to Massachusetts General Laws Chapter 268 Section 1. In essence, anyone who lies in a judicial proceeding about a matter material to the issue in question is guilty of perjury. There is a potential 20 year prison sentence if you are convicted of this crime. The lie for the purposes of the perjury statute is material if it tends in a reasonable degree to affect some aspect or result of the inquiry. The lie or false testimony does not have to influence a pertinent determination. Rather, when viewed objectively the testimony must have a reasonable and natural tendency to do so. Massachusetts courts have held that falsehoods going to credibility of a witness may at times figure as material for purposes of the crime of perjury.
In cases where the prosecution relies exclusively on the testimony of a police officer there is nothing more devastating to the defense than a lying cop. Drunk driving cases are typically presented by placing one or two police officers on the stand. The officers will usually testify that some sort of erratic driving caught their eye causing them to effectuate a stop of the vehicle. When they approach the vehicle they smell alcohol and ask the suspect to perform some field sobriety tests. If the person fails in their opinion they are arrested and asked if they want to take a breathalyzer test. Many times this test is not taken by the suspect and the prosecution’s case rests solely on the officer’s observations. In those cases, the credibility of the officer is material to the success of the prosecution.
In many of my drunk driving cases my clients are simply not drunk or impaired by legal standards. The officers who make the arrests are not familiar with my client’s speech patterns, physically limitations or social habits. Thus, their objective observations even if truthful may be flawed. Simply put, they might be incorrect in their assessment of my client’s sobriety. On the other hand, if possible I will call people who were with my client at the time of the incident to offer testimony about his or her lack of impairment. Sometimes these witnesses share with the jury personal characteristics about the client that show why someone might incorrectly attribute intoxication to their inability to adequately perform field sobriety tests. When a case is handled fairly by the prosecution the jury can weigh the competing testimonies. Typically they are asked to decide whether to believe the police officer who probably has no dealings with the defendant or friends or family members who know whether or not the defendant was actually impaired. There is no place in justice for lying cops. In my opinion they are far more dangerous and criminal than the “drunk driver” who they have arrested. Kudos to the defense attorney who exposed Carney’s abuses and to the prosecutors who refuse to prosecute cases tainted by her arrests.
On November 23, 2008 a Westfield, Massachusetts 17 year old high school student was driving a car under the influence of alcohol. The result was an accident that killed a Westfield High School junior and injured 3 other teenagers. The driver now faces charges of motor vehicle homicide, operating a vehicle while under the influence of alcohol, operating to endanger and three counts of operating a vehicle under the influence of alcohol causing serious bodily injury. Reports suggest that the defendant was driving at a high rate of speed when he lost control of his vehicle on a curve and struck a tree. Charges are now pending in the Westfield District Court.