n Commonwealth v. Michelle Carter, the Supreme Judicial Court declined to decide whether all legal standards involving a "reasonable person" should be applied against children by assessing what a reasonable juvenile of the same age would have done in the same circumstances. Trial attorneys should continue to request a reasonable juvenile instruction in any appropriate case and in bench trials should argue for the judge to apply a reasonable juvenile standard in closing. Given what we know about those age 18-25, trial attorneys should also consider asking for a reasonable person of the same age instruction and putting in an expert to explain brain science in the emerging adult population.
On May 31, 2016, Justice Richard Tucker granted Attorney Wood’s motion for new trial in Commonwealth v. Cosenza, a 2000 armed burglary case in which the trial judge had excluded the eyewitness expert testimony of Dr. Steven Penrod. Attorney Wood has been fighting for Mr. Cosenza for more than a decade.
Opposing the government's attempt to disqualify counsel for former Sen. Brian Joyce, Attorney Wood, on behalf of MACDL, co-signed this brief written by Jack Falvey and a team from Goodwin Procter in in the federal criminal fraud case of former state senator Brian Joyce.
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.
Attorney Meredith Shih filed an amicus brief on behalf of the Boston Bar Association arguing that the SJC should not permit adult mandatory minimums for juveniles. There must be an individualized sentencing hearing that takes account of the constitutionally significant differences between juveniles and adults.
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.
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.
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!
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.
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.
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.
Below you will find links to some great (and free) resources for creative and effective legal writing.
First, always use your public library! Most provide free access to excellent online academic databases including Academic OneFile.
Sign up for notifications regarding the latest law-related neuroscience publications here: http://www.lawneuro.org/listserv.php.
Keep abreast of current and developing issues at the Supreme Court using Cert Pool (http://certpool.com) and Seton Hall's law review focusing on splits of opinion among the federal courts of appeal (http://scholarship.shu.edu/circuit_review/).
Great resources for full text historical legal writings and original documents include The Internet Archive (https://archive.org/details/texts), Project Gutenberg (https://www.gutenberg.org) and Yale University's Avalon Project (http://avalon.law.yale.edu/default.asp). Others include:
- Federalist Papers: http://thomas.loc.gov/home/histdox/fedpapers.html
- Collections of the Founders: http://founders.archives.gov/
- Historical legal dictionaries: https://repository.library.georgetown.edu/handle/10822/559416
And great general purpose research tools include:
- Massachusetts Trial Court Libraries: http://www.mass.gov/courts/case-legal-res/law-lib/libraries/services/
- Google Scholar: https://scholar.google.com/
- Stanford University's guide to low or no cost legal research: https://law.stanford.edu/robert-crown-law-library/research-resources/brief-guide-lowno-cost-online-american-legal-research/
- American Bar Association's free journal search: https://www.americanbar.org/groups/departments_offices/legal_technology_resources/resources/free_journal_search.html
Attorney Nathanson was recently interviewed by Massachusetts Lawyers Weekly regarding the First Circuit's troubling decision in United States v. Szypt. In that case, the First Circuit had allowed a defendant to be prosecuted a second time even though the lower court had entered a not guilty finding after the defendant won his first appeal. The First Circuit said its ruling in the first appeal was not intended to order an acquittal, even though that is what the lower court actually ordered. The MLW article quotes Attorney Nathanson:
Many people have inquired how to proceed with public trial claims after the SJC's decisions in Commonwealth v. Morganti, 467 Mass. 96 (2014), and Commonwealth v. Alebord, 467 Mass. 106 (2014).
An alarming pattern seems to have emerged over the past two months as three different superior court judges have denied new trial motions alleging violation of the Sixth Amendment right to a public trial, despite conceding that right was violated and neither the defendants nor their trial counsel knowingly waived the right. In Commonwealth v. Kenneally (SUCR2001-10462, Brassard) (Jan. 30, 2013), Commonwealth v. McNeil (PLCR2000-03965, Chin) (Feb. 21, 2013), and Commonwealth v. Weaver (SUCR2003-11293, Hines) (Feb. 22, 2013), superior court judges all adopted remarkably similar reasoning to reject these claims.
The SJC has agreed to hear two cases involving the violation of defendants' federal constitutional right to a public trial. In these cases, the SJC should address a crucial question: whether a defendant is entitled to relief for the violation of his right to a public trial where he did not raise the issue at any point prior to or during his direct appeal.
On January 11, 2013, the SJC held in Commonwealth v. Lavoie, 464 Mass. 83 (2013), that an attorney may knowingly waive his client's federal constitutional right to a public trial without the client's knowledge or consent. It would appear that Lavoie applies only in those situations where counsel (1) knows the public has been excluded from jury selection AND (2) makes a conscious decision to waive the public trial right.
In Commonwealth v. Felton (Essex Co.) and Commonwealth v. White (Norfolk Co.), two superior court judges granted new trials in major felony cases based on violations of the right to a public trial during jury selection. These cases appear to indicate a growing recognition among trial judges that where the defense demonstrates a violation of the right to a public trial during jury selection and the Commonwealth fails to establish a knowing waiver of the right, reversal of the conviction is required.
In the past week, two superior court judges issued a pair of decisions that reveal some very exciting developments concerning the Sixth Amendment right to a public trial. The cases are Commonwealth v. Perez, ESCR 2005-00947 (Whitehead, J.) and Commonwealth v. Morganti, PLCR 1998-00940 (Giles, J) (Memorandum of Decision, December 15, 2011). (More accurately, Judge Whitehead issued his Perez decision about a year ago (Memorandum of Decision and Order, December 2, 2010), but last week, he reaffirmed it after a request for reconsideration in light of recent appellate court decisions.)
In Commonwealth v. Dyer (October 13, 2011), the SJC held that a defendant convicted of murder had waived a claim that his right to a public trial had been violated because neither the defendant nor his counsel raised a contemporaneous objection when juror voir dire was held in the judge's chambers. Moreover, the SJC held that because the defendant had waived the claim, he was not entitled to the benefit of structural error analysis, but rather was limited to the traditional standard of review for waived claims under GL Ch. 278 Section 33E - whether the error raised a substantial likelihood of a miscarriage of justice.