First degree murder in Massachusetts can be proved by the district attorney through one of three theories. One is by deliberate premeditation. To prevail under this theory the prosecution must show an intent to kill and that the decision to do so followed a period of reflection. The second way is through the felony murder rule. There, the prosecutor can secure a conviction by showing that the victim was killed during the commission of a felony that is punishable by a life prison sentence. The third way is with extreme atrocity or cruelty. Under this theory the jury must find that one of seven specific factors existed at the time of the killing.
In almost every case involving child pornography prosecutors in Massachusetts are faced with what should be a difficult decision: to charge possession of child pornography or to charge distribution of child pornography. Let’s look at some common facts. Rarely, if ever is a defendant caught with one image or a few images. This is because child pornographic materials are accessed through file share programs. The files that people receive though peer to peer networks usually contain scores if not hundreds of images. Under Massachusetts law this permits the prosecution to charge the more severe felony, distribution of child pornography. And usually, the prosecution does just that, it charges distribution. However the charge of possession, a lesser included felony is typically charged as well. This post examines why that is done and some thoughts on defending these cases.
In 2012 the United States Supreme Court decided the case of Miller v. Alabama, 132 S.Ct. 2455 (2012). There, two fourteen year olds were convicted of murder and sentenced to life without parole, a mandatory sentence under their state law sentencing schemes. The Supreme Court held that sentencing laws that mandate life without the possibility of parole for juvenile offenders violates the Eighth Amendment to the United States Constitution. This is so because such laws do not permit the judge from considering age, maturity, family environment, appreciation for their actions and other circumstances attendant to their youth and the crime they committed. Exactly what that would mean to juveniles serving sentences of life without parole in Massachusetts was not made clear until Christmas Eve 2013 when the Massachusetts Supreme Judicial Court rendered its opinion in Commonwealth v. Brown, 466 Mass. 676 (2013).
At least once a week I get a call from a perspective client who wants to discuss a criminal case that he or she thinks is a classic case of entrapment. While the facts are always different a common theme underlies every story. An undercover police officer is involved in some sort of investigation. The officer is playing the part of a criminal or someone engaged in some sort of wrongdoing. My client takes the bait and enters into discussions and interaction with the officer. Then, either just prior to, or at the time of the consummation of the crime an arrest is made. My client claims to be the victim of entrapment. He’s right isn’t he? After all, he did not know that the person he dealt with was a cop. Shouldn’t they dismiss my case? Nope. This is not entrapment. It might be an underhanded police tactic. It might be a waste of the taxpayer’s money. But it is not entrapment.
Several times each week someone calls my office with this question. The answer varies from case to case. The consequence of defaulting from your obligations in the Massachusetts criminal courts is extremely fact specific. Much depends on when you defaulted and why you defaulted. Some situations are considered quite serious. Others are not. This post summarizes the most common scenarios people face when defaulting. No matter what category or example seems to fit your case it is important to consult with a lawyer if you are in default. There is probably a warrant out for your arrest and you will need a criminal defense lawyer to protect your rights.
This process used to be so easy. Simply draft a subpoena identifying the materials you wanted and have it served on the keeper of the records for the entity in possession of the materials. Some lawyers had summons direct delivery to their law office. Others had it delivered to the clerk’s office where the case was pending. Sometimes the criminal defense lawyer would get a call from one of the assistant clerks telling him that the documents were delivered and available for photocopying. Some clerks might tell the lawyer that the material was too voluminous for the clerk’s office to keep so the lawyer was instructed by the clerk to keep it himself. If the material was not delivered the defense lawyer would ask for the judge to order compliance with the subpoena. The keeper of the records would then have to produce the material or appear, usually with counsel, and state why the records could not be produced.
Until 2006 the criminal law discovery process in Massachusetts created, at least in some cases, a level playing field. The prosecution was obligated, with limited exception, to surrender all of its evidence to the defense. This duty required disclosure of all known witnesses, their statements, evidence of which the district attorney had knowledge, all exculpatory evidence and more. The defense on the other hand was required to do no more than provide the district attorney with a list of witnesses it would call at trial along with their addresses and dates of birth. The only exception to this involved the use of expert witnesses whose opinions and the basis therefore had to be disclosed in a manner that gave the prosecution adequate notice of their anticipated testimony.
One of the crimes most frequently defended by Massachusetts criminal lawyers is the case of domestic assault and battery. The statute prohibiting the conduct is Massachusetts General Laws Chapter 265 Section 13A. Not many people are aware that the crime of assault and battery in Massachusetts is a misdemeanor, punishable by up to two and one half years in the house of correction and a one thousand dollar fine. The term “domestic” does not change the actual criminal charge. Rather, it is a description commonly used by lawyers and lay people alike in reference to someone in a relationship causing physical harm to the other person in that relationship. Massachusetts judges and district attorneys for some reason seem to view assault and battery cases of this nature as being more serious than other assaultive conduct; i.e. a fist fight. For this very reason anyone charged with hitting or threatening a domestic partner should not go into court without a lawyer.
Why Are These Cases Taken So Seriously in Massachusetts?
The answer to this question is simple. The risk of harm to the victim coupled with the consequences facing the accused trigger great scrutiny of these cases. As to the victim, the prosecution and judges want to make sure that they are safe. Domestic issues are emotional issues and rationality often takes a backseat to reason and logic when emotions are tested. Ensuring that the complainant is safe from further attack is the first order of business. On the other hand, someone needs to protect the accused to make sure that his or her rights are protected as well. Domestic assault and battery allegations prompt the issuance of restraining orders. A violation of a restraining order can in some instances be a felony. For instance, an assault and battery in violation of a restraining order is a felony that can result in a five-year prison sentence. This again is reason enough for anyone charged with this crime to be represented by a lawyer.
What if I Didn’t Do Anything and the Complainant is Lying?
The sensitivity and volatility of domestic assault and battery cases usually leads judges, at least initially, to side with the complainant. No judge wants to see his or her name in the paper with an accusation that they did nothing to protect a “victim” in a domestic case. So, absent effective representation they will render harsh judgments against the accused in the form of restraining orders, pretrial detention and stiff sentences. An experienced criminal defense lawyer, properly prepared, will be able to demonstrate to the judge in appropriate circumstances that the accusations are lies. This can be done by getting witnesses to appear in court to refute the charges, show a pattern of lies in restraining order affidavits, reveal illicit motives for the duplicitous complaints and more. There is always a reason for making a false complaint of domestic abuse and a skilled defense lawyer will demonstrate this to the judge or jury. Aggressive defenses in these matters are often necessary and a quick start on your defense can save you the trouble of trying to vacate restrictions on your life at a later time.
Why Do People Lie In Domestic Abuse Cases?
There are many reasons people lie in domestic assault and battery cases. Sometimes people want to control their partner. If the complainant fears that the accused is planning to leave them a restraining order or complaint of domestic abuse gives them control during the pendency of the case. They can lie and tell the judge that the defendant violated the restraining order if the defendant does not do as they demand. Sometimes people wrongly believe that an accusation of domestic abuse will give them the upper hand in a divorce or child custody proceeding. Other times, abusing the courts with false claims of abuse is a way of “getting even” with a cheating spouse. Other times it is done out of pure evil. A good criminal defense lawyer will work with you to expose the “victim’s” illicit motives and get you a proper result in court.
In late November of this year the Massachusetts Supreme Judicial Court decided the case of Commonwealth v. Humberto H. The issue on appeal was 1) whether there existed sufficient evidence to sustain the complaint and 2) whether the judge had to arraign the defendant prior to dismissing the complaint.
Here is a brief history of the proceedings. The defendant was charged with possession with the intent to distribute marijuana. Prior to arraignment he moved to dismiss the complaint on the grounds that there was an absence of probable cause sufficient to sustain the charges. The judge agreed with the defense that the case should be dismissed. However, he believed that the defendant needed to be arraigned for him to do so. The defendant was thus arraigned after which the case was dismissed. The government appealed the judge’s ruling.
The court found as facts the following:
In January of 2011 the defendant entered his high school late. Upon his entry authorities smelled a strong odor of marijuana on him. The defendant was then confronted and subsequently searched. Found in his possession were five bags of marijuana that the police believed he possessed for the purpose of distribution. The initial arraignment was continued in order to give the defense the opportunity to file a motion to dismiss prior to arraignment. The motion was filed and allowed but only after the accused was arraigned.
In its opinion the court found dismissal of the complaint proper. The mere presence of five bags of marijuana without more fails to support probable cause to believe that the defendant possessed the intent to distribute. The weight of the drug was minimal. Its street value was nominal at best. There were no drug distribution paraphernalia in the possession of the accused and he made no admissions supporting the issuance of the complaint. This aspect of the Humberto H. opinion was not novel. Rather, it was corroborative of established case law requiring the prosecution to show more than the presence of multiple packages of drugs to support a complaint alleging the intent to distribute.
The next issue decided by the Court made new law in Massachusetts. Now, at least in the juvenile courts judges can dismiss cases prior to arraignment. The rationale for the decision is interesting. The Court voiced concern that once arraigned the juvenile will have a court record showing involvement with the system. This is a permanent record that can be accessed by certain designated authorities. At subsequent proceedings, particularly bail hearings, prosecutors often argue that the defendant has “multiple entries” on his record regardless of how those matters were disposed. In conferring this new right to juvenile defendants the Court further held that this issue has been addressed in other cases without having been definitively decided and the time is now ripe for settling this issue. Finally, this issue was believed to be one of public importance that required a resolution.
Here is what remains unresolved. Is this opinion going to be made applicable to adult cases? I believe it will. Right now, some judges will dismiss complaints in the adult court on motions prior to arraignment. Others will not. I imagine we will now see a trend where these motions are allowed prior to arraignment. I also expect this matter to be litigated in the appellate courts shortly as well.
Late last week Julie Manganis of the Salem News reported that Joseph Ferrante, a retired Peabody, Massachusetts police officer has been charged with Possession of Child Pornography and Distribution of Child Pornography. Both charges are felonies in Massachusetts.
In September of the year a Massachusetts State Trooper got onto a file-sharing website and obtained information that a Comcast customer was viewing child pornography. The officer subpoenaed the Comcast information and learned that the IP address was registered to Ferrante. With that a search warrant was secured and served on Ferrante’s home last Monday. Ferrante was questioned during the execution of the warrant and admitted that he had viewed the illicit material but denied storing it on his computer. A preliminary search revealed the existence of evidence of the crime on the computer. A more thorough search of the computer will be conducted over the next several months.
Essex County Sex Crimes Lawyer
Being a criminal defense lawyer I have concerns about the representations that Ferrante actually admitted to having committed these very serious crimes. As a former cop he has to know that anything he says will be used to prosecute him. He also has to know that proving these cases is extremely difficult, unless of course the suspect confesses to the crime. Computers in private residences are rarely secured. Family members, guests, friends, etc. regularly go onto a household computer. Thus, proving that the subscriber is the guilty party is difficult. A successful prosecution becomes even more difficult if the IP address is not secured. Anyone within the range of the wireless mechanism can access the Internet if it is not secured. This makes it appear that the subscriber is using the Internet when in fact it is somebody else. This happens more than you may think, particularly in restraining order violation cases where the defendant is being set up by the “victim”. Assuming Ferrante knew any of this you have to wonder why he would admit guilt to the police. Or did he?
I have defended many Child Pornography cases in Massachusetts and on only one occasion did the prosecution attempt to proceed without a confession. In all of these cases the link to the defendant that made the case provable was the defendant’s confession. Again, this shows that nothing good can come from talking to the police. You have a constitutional right to remain silent. It was given to you for a reason. Use it. If you have any doubt call a criminal lawyer. I can assure that the advice will be the same. Keep your mouth shut.