On May 16, 2018, the Supreme Judicial Court adopted the arguments of Attorney Jellison in Commonwealth v. Lazlo L., ruling that continued prosecution of eleven year old children is repugnant to the purposes of the legislature in enacting criminal justice reforms limiting such prosecutions. The prosecution of children is not just cruel, it is empirically bad policy. The prosecution of children has been demonstrated to increase the likelihood of later criminal justice involvement. Further, children this young are precisely those people who are most likely to mature and change. Children should be treated as children.
Amicus Brief: Not Guilty of Accessory to Murder
On May 1, 2019, the Supreme Judicial Court ordered a not guilty verdict for a defendant charged with accessory to murder. On behalf of MACDL and CPCS, Attorney Jellison authored an amicus brief in support of the defendant who was represented by Attorney Jin Ho King of MRDK Law. The witness refused give a phone number, which he had a right to do, and gave evasive answers. He was just scared and wanted to distance himself. The SJC adopted our argument that he didn't provide the killer with a defense or mislead police.
DNA Testing for People on Sex Offender Registry
Attorney Shih just filed a brief on behalf of the Boston Bar Association arguing that people required to register as sex offenders should be permitted to ask for DNA testing to prove their innocence. SORB registration is a significant restraint on liberty and gives them standing to request testing. Read the brief here.
SJC Avoids Adopting "Reasonable Juvenile" Standard
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.
Chris Post to receive MACDL President's Award
We are excited and proud to announce that Attorney Chris Post will be receiving the President’s Award from the Massachusetts Association of Criminal Defense Lawyers. MACDL will be recognizing Attorney Post along with nine other attorneys who were instrumental in the SJC’s recent decision to vacate thousands of drug convictions tainted by the misconduct of chemist Sonia Farak.
Juvenile Murder Defendants Deserve Individualized Sentencing
On October 22, Attorney Shih filed an amicus brief on behalf of the Boston Bar Association arguing that the automatic imposition of life with the possibility of parole on juveniles without an individualized sentencing hearing violates Art. 26 by precluding consideration of the distinctive characteristics of youth. Given the Supreme Judicial Court’s recent decisions in Lutskov and Perez II, as well as improved scientific understandings of juvenile brain development, “[i]t is a natural progression for this Court to find that art. 26 prohibits the non-discretionary imposition of life with parole for juvenile second-degree murder defendants.” Shih, who also authored the BBA’s brief in Lutskov, said, “We hope the Court will take this moment to recognize recent scientific and legal developments that have improved our understandings of the distinctive characteristics of youth and continue to expand the notion of justice accordingly, to provide the protections constitutionally necessary to ensure that these distinctions are appropriately incorporated into sentencing for juveniles.” Read the brief here.
Courts Should Use Reasonable Juvenile Standard
Attorney Jellison recently filed an amicus brief in the case of Michelle Carter, a juvenile convicted of manslaughter for texts sent to her boyfriend. The brief argues that juvenile conduct should be judged by a “reasonable juvenile” standard, not a “reasonable adult” standard. Read the brief here.
Another Win Before Sex Offender Registry Board
In a recent administrative decision and after a hearing before the Sex Offender Registry Board, Associate Claire Ward convinced the SORB to reduce the classification of her client from a level 3 (highest risk level) to a level 1 (low risk), and as a result her client’s information, including sensitive personal details like their full name, date of birth, offense, home and work addresses, and photo, will not be disseminated on the internet. This is the second such win for Attorney Ward and her clients in the past three months.
Appellate Win in Eviction Case
In the appeal of an eviction case, Attorney Jellison helped develop issues and write a brief with a team of lawyers working through the Volunteer Lawyers Project. The Appellate Division of the District Court held that the district court judge abused his discretion when he failed to grant a continuance so that the elderly and disabled tenant could obtain counsel and present defenses. The tenant will now have the opportunity for a new hearing.
Sex Offender Registry Board Win
Recently, Attorney Claire Ward succeeded in reducing her elderly client's Sex Offender Registry Board level from Level 3 to Level 1 (the lowest level). Her client, aging and in poor health, had not offended in decades and poses no threat to anyone. Attorney Ward convinced the SORB that the public could be protected without subjecting her client to the barriers to living safely and without discrimination that are posed by public notification.
Consequences of a Conviction Lecture
Attorney Claire Ward is presenting on collateral consequences on Thursday, May 10, 2018 at Massachusetts Continuing Legal Education. People charged with crime face so many penalties beyond probation and jail time but many people have no idea how a conviction can really impact their lives. A good attorney will help you anticipate and try to avoid some of these consequences.
No Juvenile Mandatory Minimums
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.
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!
Check out our Twitter and Facebook feeds
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.
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.