Lecture: Felony Murder after Brown

After drafting an amicus brief on behalf of MACDL with Foley Hoag partner Neil Austin which helped convince the Massachusetts SJC to abandon the 150 year old felony murder rule in Commonwealth v. Brown, Attorney Wood gave a lecture on March 16, 2018, at the annual MACDL Advanced Post-Conviction Seminar, at Wilmer Hale in Boston, explaining the consequences of this ground-breaking decision. An outline of Attorney Wood's lecture is available here.

Speedy Trial Amicus

Attorney Wood along with a team from Goodwin Procter, LLP including Attorney Willie Jay, recently filed an amicus brief in the SJC. On behalf of MACDL, they argued that the defendants were entitled to dismissal because the prosecution was not ready to try the cases within one year. The defendants caused no delay and yet the prosecution tries to blame them for not objecting to the scheduling of routine pretrial conferences. The prosecution's argument is nonsense both as a matter of law and as a matter of policy. Read the brief here.

No Suspicionless Border Searches

We were pleased to partner with the Constitutional Accountability Center to file an amicus brief in support of the ACLU's challenge to suspicionless border searches of electronic devices in Alasaad v. Duke. The briefs are here. The government should not have unchecked power to trawl through our electronic devices. It is an invitation to profiling and other abuses.

Disappointing Decision on Pretextual Stops

We are disappointed in the SJC’s ruling today that pretextual traffic stops are permissible. The opinion expresses concern about the problem of racial profiling and “driving while black.” But in deciding the issues, it emphasizes the difficulties faced by judges asked to decide that a stop was pretextual. In contrast, the opinion gives short shrift to the real world difficulties faced by people who are subjected to pretextual stops. Pretextual stops lead to not just inconvenience, but embarrassment, missed appointments, lost pay, lost jobs, and even lost lives. A judge’s supposed difficulty in deciding whether a stop was pretextual should not outweigh the difficulties of the people of the Commonwealth. 

Article 26 is more protective than the Eighth Amendment

We were troubled by a misstatement in a recent SJC opinion which asserted that Massachusetts' art. 26 protection against cruel or unusual punishments had never been ruled to be more protective than the Eighth Amendment. It just isn't true. So, we (along with Attorney Merritt Schnipper) filed this amicus brief on behalf of the Massachusetts Association of Criminal Defense Lawyers, asking the SJC to remove this misstatement. Many of us feared that this was a beachhead in an attempted rollback on constitutional protections.

Botched Title IX Case Leads to Yale Settlement

We read with interest about this case from Connecticut in which Yale was forced to settle a claim that it wrongfully expelled a student who was the subject of a false sexual assault claim. The case involved personal vendettas, student group politics, and and an unfair disciplinary process. Even when well-intentioned, these hearings can quickly go off the rails. If you are the subject of a Title IX complaint, you need counsel!

OUI Dismissed: A Big Deal to Our Client

Recently, Attorney Ward successfully obtained the dismissal of an OUI case. She did so by pushing the case to a quick trial and being ready to try the case when the Commonwealth was not. As a result, our client can return to driving for work and avoid other potentially serious consequences from a criminal conviction. We always strive to understand what our client's objectives are and formulate a plan to achieve them through preparation, skill and zealousness.

Criminal Justice Reform: What Happened?

The Massachusetts House of Representatives has passed its own criminal justice reform bill. What happens now? In short, negotiations. The Senate and House versions have some substantive differences that need to be negotiated and agreed upon in a conference committee. That process will likely run into next year. We can expect some very positive developments at the end of the process: expanded expungement for some criminal records, repeal of mandatory minimum sentences for some drug crimes, and the reform of the use of solitary confinement or segregation. These are all data-driven "smart on crime" reforms that are likely to benefit society as a whole, not just offenders. 

Massachusetts Criminal Justice Reform: What’s in the Bill?

The Massachusetts Senate passed a major criminal justice reform bill on October 27, 2017 and the legislation is now before our House of Representatives. Broadly speaking, the Senate bill represents a victory for the “smart on crime” approach that has swept state legislatures in recent years, even in the most conservative states. The fact is that you cannot arrest or prosecute your way out of social problems. The “tough on crime” approach has failed, proving instead to be disproportionate, destroying poor communities and communities of color, and seriously burdening taxpayers with the high fiscal and social cost of unnecessary incarceration.

Title IX Sexual Assault Investigation Policy Changes

Recent Department of Education policy changes under Title IX require that students accused of sexual misconduct be informed of the allegations in writing. They also allow for a higher standard of proof such as clear and convincing evidence, do not require that investigations be completed in 60 days, and allow for mediation. While all of these changes might seem obvious and non-controversial to those familiar with basic notions of due process in the American criminal justice system, they are important steps forward in the evolution of disciplinary procedures designed to adjudicate sexual assault allegations fairly and reliably on college campuses.

Commonwealth v. Timothy Brown: Felony Murder Limited

On September 20, 2017, the Supreme Judicial Court, in a four-judge concurring opinion in Commonwealth v. Timothy Brown, abolished the current Massachusetts doctrine of felony murder and replaced it with a new doctrine that requires the prosecution to prove actual malice. As Attorney Nathanson commented in the Boston Globe (here or here), felony murder law was "the ultimate technicality" because murder requires proof of malice, but felony murder replaced that with simply the intent to commit a felony. That rule did violence to some of our most basic principles of criminal justice: (a) that the government must prove all the elements of the crime, including intent, (b) that the defendant is presumed innocent, rather than essentially presuming his guilt of murder from his commission of some other offense, and (c) most importantly punishment - here, life imprisonment without parole - must fit the defendant's culpability or blameworthiness, rather than punishing him for unintended consequences from accidents or out-of-control compatriots.

SJC Should Outlaw Traffic Stops That Are Pretexts

Attorney Malm convinced the Supreme Judicial Court to take one of his cases in which he raised the important issue of whether or how police authority should be limited when a traffic stop for an observed civil traffic infraction is clearly a pretext to engage in an investigation of other activity. The Court has asked for amicus briefs on the issue. We hope to have supporting briefs from important civil rights and professional groups. Pretextual traffic stops enable racial profiling, and undermine public respect for the rule of law. The briefs and the Court's amicus invitation can be found here.

Trial, Juvenile, and SORB Representation

Wood & Nathanson represents individuals in many areas related to criminal charges. Recently Wood & Nathanson attorneys became members of the Committee for Public Counsel Services panels for trial representation, juvenile delinquency appeals, and sex offender registry board representation. Attorney Shih will represent adult criminal defendants in Suffolk County trial courts, Attorney Ward will represent people before the SORB, and Attorney Jellison will represent juveniles in appeals from delinquency trials.

Abolish Felony Murder

On April 18, 2017, Attorney Wood and a team from Foley Hoag, LLP filed an amicus brief in the Supreme Judicial Court arguing for the abolition of the felony murder rule. The rule, which holds defendants strictly liable for any death that occurs as a result of a felony they commit, divorces moral culpability from criminal liability. The result in Massachusetts can be life without parole for unintended or accidental killings. The rule is disproportionate, unfair, and should be abandoned. Read the brief here.

Innocence Network Conference

On March 23-26, Attorney Wood accompanied his client Nat Cosenza to the 2017 National Innocence Network Conference in San Diego. The conference gave exonerees a chance to connect to one another for support and to share their experiences so that attorneys and others in the innocence community could better understand how wrongful convictions occur, how to prevent them, and the challenges that exonerees face even after regaining their freedom. An article about Nat's experience at the conference can be found here.