Earlier today I read a blog post written by Orange County criminal lawyer Randy Collins discussing the role of jailhouse informants or snitches in helping prosecutors prove cases. It reminded me of just how difficult defending criminal cases can be when a client is locked up awaiting trial. The use of informants always had and always will have its place in proving crimes. Yet is seems more prevalent these days in Massachusetts, particularly in regard to murder prosecutions. There was a time when the fear of retaliation scared would be informants from helping prosecutors. Newly designed jails and segregated prison populations have contributed to quelling these fears and encouraging informants to cooperate. This post looks at some jailhouse informant issues I have encountered and how to defend against them.
We have all heard the expression innocent until proven guilty. We all know that the proof is on the district attorney to prove beyond a reasonable doubt that the defendant committed the crime charged. We are familiar with those historic words “cloaked with the presumption of innocence”. Yet any time someone is charged with the crime of rape of a child people run and hide from those constitutional protections and principles. Opinions are immediately formed. The defendant is now a pariah. Even judges overlook those bedrock ideologies. The only person someone this position can count on is his criminal defense lawyer.
The Massachusetts joint venture laws are perhaps the most confusing for jurors to appreciate and understand. A joint venturer is someone who aids or assists in the commission of a crime. This is the person or people who help the principle do the actual act. Helping someone escape or acting as a lookout can also be acts that impart responsibility as a joint venturer. It is the obligation of the district attorney to prove beyond a reasonable doubt that the joint venturer had the same intent as the principle; that he or she intended that the crime be committed. Mere knowledge that a crime is being committed or mere presence at the crime scene is not enough to satisfy the prosecution’s burden of establishing a joint venture. All of that is understandable but here is where the law becomes problematic. A jury can infer the mental state of the joint venturer based the circumstances of the case. So what does the district attorney do in cases where many people are caught and present at a crime scene? They charge them all with the crimes and let the jury make the determination as to each person’s intent. This is completely unfair, disingenuous and downright dangerous. The following recent Brockton cocaine trafficking arrest demonstrates my concerns.
There was once a time in Massachusetts when a witness who had already testified before a grand jury could simply invoke his privilege against self-incrimination and avoid having to testify in court. Then, in the mid 1990’s, when street gang violence was perhaps at its worst in Boston, things started to change. Prosecutors started to fight the trend of violent gang members who witnessed crimes refusing to testify. One way of doing this was to put the witness in the grand jury and lock him into his testimony. Many of these witnesses agreed to testify at this “closed” proceeding under the erroneous belief that they would never have to testify against the defendant in open court. I was often told that police officers and unscrupulous district attorneys would create this false sense of security. Then, when called to trial the witnesses would either feign memory loss or refuse to testify. This tactic was challenged in 1996 in the case of Commonwealth v. Martin, 423 Mass. 496 (1996).
This question is brought up in my office several times each month. Someone is arrested and charged with drug trafficking. They had very little or no drugs on them. Or, they were caught selling a small amount of a controlled substance. Small meaning substantially less than the threshold amount needed to prove trafficking. They get arrested and arraigned in court. They are shocked to find out that they have been charged with trafficking. How can they charge me with this? An article I read earlier today gives an example of this. Erik Owen, an Andover, Massachusetts resident was arrested on drug charges in Andover. As a result a location in a neighboring town was searched. There, the police found in excess of two hundred grams of heroin. This was certainly enough product to charge heroin trafficking. The cops also found a firearm and bullets. Owen was charged with trafficking heroin over two hundred grams.
Do you ever wonder why “routine” motor vehicle stops often seem to result in major drug busts? How is it that the cops just happened to pull someone over and suddenly find large quantities of drugs in the car, on the driver and in the possession of the passenger? Is it because of good police work? Is it luck? Or is it more likely a violation of your constitutional rights that if properly attacked can result in suppression of the drugs and a dismissal of your case? This post examines a western Massachusetts motor vehicle stop that resulted in three people being charged with felony possession with intent to distribute drugs and conspiracy.
Drug arrests are posted in media outlets throughout Massachusetts several times every day. The basis for these arrests is often the representation that surveillance of suspected drug dealers was conducted for weeks or months. Usually the suspects are driving cars. The cars are followed by the police and ultimately an arrest is made. What I find suspicious about these representations is that police observe a routine pattern of conduct that they see for a particular period of time. Then, all of the sudden, one day they decide to stop the suspect’s car. And guess what? That day the police find drugs in the car. This post looks at whether benign observations can legally lead to stops, searches, seizures and arrests without more.
Over the past several years a trend has developed enabling law enforcement to obtain search warrants for homes based on anonymous tips. Tipsters using apps that connect to local police departments provide information that the cops otherwise would not have had. The application is downloaded to smartphones and has several features geared towards improving public safety. Among these features are the ability to submit tips, ask questions, comment on police conduct or misconduct and access a local police department website. In a recent case in Peabody, Massachusetts a tipster used MyPD to complain to the police about suspected drug activity. In this case the investigation resulted in a search warrant execution and felony drug arrests of a juvenile and an adult. This post examines whether the police officer’s observations establish proper probable cause for the issuance of the search warrant.
Drug crimes arrests are made every day in Massachusetts and in virtually all cities and towns. No municipality is immune to the current drug problems plaguing this state. Newspaper articles of arrests and drug busts flood the internet daily in support of this statement. What many articles do not make clear however is what exactly happened. Rather, there is a tendency to post headlines only; i.e. that an arrest was made in a particular town for a particular charge. You don’t know how the arrest was made, why the arrest was made or just how strong the district attorney’s case is relative to the person being charged. Take for example the recent arrest of Brandon J. Sones and Michael Russell, two twenty-four year old men arrested in Marlborough and charged with a variety of Massachusetts drug crimes. Just how serious are these cases? What if anything will they be convicted of? What did they really do? Based on the press release alone this post takes a look at some thoughts I have in this case.
About six months ago the Massachusetts Legislature passed a law raising the age for adult prosecutions from seventeen to eighteen. The law had prospective application. There is however one school of thought that this law applies to cases that were pending at the time the law went into effect. Thus, a seventeen year old charged in adult court whose case was pending when the law passed could possibly have his case dismissed upon request. This is exactly what happened earlier this week when a Lowell criminal defense lawyer asked the judge to dismiss a breaking and entering case against her client. The crime was committed in July 2013. At that time the defendant was seventeen years old. He is now eighteen. The law became effective on September 18, 2013.