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.
Dismissal Before Complaint Issues
Recently, Attorney Shih successfully convinced a clerk magistrate to throw out a pending application for a criminal motor vehicle infraction against the client. Additionally, Attorney Shih prevented a second criminal assault & battery complaint from issuing, protecting the client from having any criminal charges whatsoever show up on her record.
New Blog Post Up on Research Resources
Based on Attorney Nathanson's 2016 presentation to the Massachusetts Association of Criminal Defense Lawyers, our new blog post provides creative ideas for mostly free online legal and scientific research.
Resources for Research
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.
Scientific and medical information can be found at: Pubmed (https://www.ncbi.nlm.nih.gov/pubmed/advanced) and Pubmed Central (full text) (https://www.ncbi.nlm.nih.gov/pmc/).
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
Post-Conviction Discovery Lecture
On March 24, 2017, Attorney Nathanson spoke at the Advanced Post-Conviction Litigation Seminar of the Massachusetts Association of Criminal Defense Lawyers. He spoke regarding post-conviction discovery, including the government's obligations to disclose exculpatory evidence under Brady v. Maryland as well as strategies for litigation under Mass. R. Crim. P. 30(c)(4).
Motion To Suppress Upheld by Appeals Court
Guilty Plea Vacated Due to Immigration Consequences
On January 5, 2017, Attorney Nathanson convinced a judge to vacate our client's guilty pleas to drug trafficking because his trial attorney failed to advise him that a plea to drug distribution would make him automatically deportable under Padilla v. Kentucky, 559 U.S. 356 (2010). Attention to immigration consequences is essential in defending a criminal case.
Freedom in Federal Court
On December 19, 2016, Attorney Nathanson and Attorney Shih secured the release of our client who had been serving a 15 year federal sentence for possession of a machine gun. Using the decision in Johnson v. United States, 135 S. Ct. 2551 (2015), the client’s sentence was reduced to time served with probation. They were able to convince the judge that, given the client's exemplary progress in prison and family support, he should be allowed to go directly home instead of a halfway house. Attorneys Nathanson and Shih helped the client create and practice what the judge called "one of the best allocutions I've ever heard."
Model Homicide Instructions
Cell Site Location Information
Criminal Law Update
Courts Should Use Reasonable Juvenile Standard
On March 21, Attorney Jellison submitted an amicus brief in a manslaughter case on behalf of the Committee for Public Counsel Services and the ACLU arguing that juvenile brain science should lead courts to evaluate juveniles' conduct under a reasonable juvenile standard. Read the brief here.
Habeas Corpus Lecture
Harvard Law School Lecture
Right to Counsel During Interrogation
In Commonwealth v. Celester, Attorney Wood, working with a team from Ropes & Gray, convinced the SJC that his client, charged with murder, had received ineffective assistance of counsel when his original attorney instructed him to give a statement to police without having done any investigation. Read the opinion.
Expanding the Right to Counsel
In a first-degree murder case, Attorney Wood convinced the Supreme Judicial Court that criminal defendants should have the right to effective assistance of counsel when making a statement to police, even before they are charged. Read the opinion here.
Troubling Double Jeopardy Ruling
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:
Public Trial Claims After Morganti and Alebord
Superior Courts struggle to reconcile Dyer and Lavoie
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.
Beyond Lavoie: Commonwealth v. Morganti and Commonwealth v. Alebord
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.