Articles Posted in Criminal Appeals

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Fans of the hit podcast Serial will be interested to learn that Adnan Syed, the man whose murder conviction is the focus of the show, has been granted a new trial. Last week, Maryland’s second-highest court upheld a lower-court’s ruling that—due to deficient counsel in his original trial—Syed deserves a new trial.

The appeals court’s three-judge panel said on Thursday that his legal counsel’s “deficient performance prejudiced Syed’s defense.” They went on to say that if the defense team had managed to contact even one witness with an alibi that could “have raised a reasonable doubt in the mind of at least one juror,” the outcome may have been different. A Boston criminal defense attorney can help you determine how to proceed if you’ve been charged with a crime.

Multiple Inconsistencies

The first season of Serial followed the investigation into the murder conviction of Adnan Syed. About 18 years ago, Syed was convicted of murdering his former girlfriend, Hae Min Lee. But the show’s host, Sarah Koenig, uncovered multiple inconsistencies in the case against Syed. For example, a woman by the name of Asia McLean should have been contacted as an alibi witness; she reported having seen Syed at the same time Lee’s murder was alleged to have occurred. However, not only was McLean not contacted by the defense team, her testimony never appeared in court.

Although Thursday’s ruling upholds a previous decision to retry Syed’s case in Maryland’s circuit court, there is a good possibility that prosecutors will appeal.

In addition to failing to contact McLean, Syed’s defense team neglected to question evidence used to trace Syed to the crime scene, including the reliability of a cell phone tower that placed him at the site where Lee’s body was found in a shallow grave.

Failure to Present an Alibi Witness

Syed’s lawyers argued that his former counsel provided ineffective assistance, primarily based on the fact that Asia McLean—who said Syed was at the library at the time of the murder—was never presented as an alibi witness. Had the jury been given this information, it is possible that a reasonable doubt may have been raised in the mind of at least one juror. Judge Martin Welch agreed, saying that Syed’s previous counsel “fell below the standard of reasonable professional judgment.”

Prosecutors have 30 days within which to appeal this decision or proceed with the new trial. Whether Syed is granted bail while awaiting his new trial has not yet been determined. A MA defense attorney can help you protect your rights if you’ve been charged with murder or any other crime. Continue reading

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There are a number of areas in which attorneys and their clients  come to disagreements. After all, in most cases, being the party in a criminal or civil law suit, particularly as a defendant, is a high stress endeavor.

Over the years, we have discussed a number of these areas such as lack of communication, the thought that the attorney is not knowledgeable  or simply has the bedside manner of a venomous snake.

We have also discussed the fact that some folks have a different view of reality than the rest of us. Sometimes communication can improve this.

Sometimes not.

Many clients present with challenges which pre-date the issues in an ongoing legal action. Take veterans, for example. Many vets have had to survive living through whist can only be regarded as Hell. How do they do it?

I was discussing’s this with a colleague, Attorney Sarah J. Briones a lawyer whom I greatly respect earlier today. She observed that sometimes, in order to survive, military personnel have to learn to shut out certain aspects of what the rest of us might consider reality. This is not to say they are insane or anything like that, but the perspective they have had to adopt in order to survive might not work during events like lawsuits, prosecutions or divorce.

Unfortunately, this is part of the price they pay in their service to the country and the rest of us. More unfortunate is that, while we pay some lip service of appreciation to them, we fail to understand and take into account this different perspective. We fail to help them truly adjust.

the results re often unfortunate.

Once that happens, they find themselves in an arena in which even people who never had the military experience fail to truly understand. I have said before that, as attorneys, it is part of our job to help the clients through their little path through criminal law odyssey.

I thought that it might help to address what types of expectations folks seem to  have of their newly acquired experienced attorney.

Attorney Sam’s Take On Expectations Of Lawyers

When you hire a physician, you expect a certain degree of expertise. However, most folks realize that, good as the doctor might be, he or she is probably not a wizard or witch. There are limits as to what the doctor can do.

The same is true with attorneys, no matter how experienced he or she is. There are various rules, procedures and laws which govern a great deal of what we do. Many of these may be seen as unfair by you. Fair or unfair, however, they must be dealt with as realities.

Because they are realities.

“But, Sam, we hire you to work around those rules. For example, I am sure you have represented clients who were guilty as charged before. They pay you to try to ‘get them off’.

Yes, but the surrounding details of the procedure do not change. In other words, I cannot say, “Judge, my client is not guilty. We don’t need a trial. He told me he is not guilty. That’s good enough. Dismiss the case.”

“No, but you try to suppress evidence and such.”

 

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In response to the historic 1966 case of Miranda v. Arizona, the Supreme Court declared that any person taken into police custody must be informed of the right not to make self-incriminating statements under the Fifth Amendment. In Miranda v. Arizona, Ernesto Arturo Miranda was convicted on charges of rape, kidnapping and armed robbery based on a confession he made while being interrogated by police. Had he known his Fifth Amendment rights, Miranda would likely not have confessed to the crimes in question. As such, our “right to remain silent,” and associated rights are commonly referred to as the Miranda Rights.

The Four ‘Miranda Rights’

If you are placed in police custody, you must be read your Miranda Rights prior to being questioned. These rights are as follows:

  • You have the right to remain silent.
  • Anything you say can and will be used against you in a court of law.
  • You have the right to an attorney.
  • If you cannot afford an attorney, one will be appointed for you.

Occasionally police will fail to read the Miranda Rights to a suspect in custody. Whether they just forgot, or chose to do so, is irrelevant. If you are questioned without receiving your Miranda rights, any confession you make will likely be considered involuntary, and thus inadmissible in your case. In addition, any evidence obtained by way of the involuntary statement may also be thrown out. A MA defense attorney can help you determine how to proceed if you’ve been charged with a crime.

An Unlawful Confession

Consider the following scenario. Stephanie is arrested on suspicion that she was involved in a hit and run accident. Before being read her Miranda rights, Stephanie is questioned. She breaks down in tears, saying she only fled the scene because her friend – who had a bag of illegal prescription pills – told her to keep driving. Stephanie also confesses that they threw the bag of pills out of the car window after the accident. The police, in turn, find the bag of drugs and submit as evidence in court.

If Stephanie has a good defense attorney, the attorney will challenge her confession, saying that Stephanie would never have confessed if she had known her right to remain silent. The judge is likely to find the confession unlawful, which means that both the confession and the drugs discovered as a result of the confession will probably be thrown out. A Boston criminal defense attorney can help you protect your rights if you are facing charges for any type of crime.

Fifth Amendment

Miranda rights are essentially an extension of our Fifth Amendment rights. They are intended to ensure that any suspect knows his or her rights and, if choosing to waive those rights, does so voluntarily. The following is the text of the Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Continue reading

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If you have been convicted of a crime, your conviction is a public record. What does that mean? Well, for starters, potential employers and landlords can do a criminal background search, and they may deny you employment or housing when they see the conviction. What many people don’t know, however, is that anyone can walk into a court clerk’s office and perform a criminal record search on a particular individual.

And it’s getting even easier than that. In the past, a person had to physically walk into a court clerk’s office to perform such a search. Since the birth of the internet, however, any average Joe can use the services of an online criminal background search firm while sitting in his pajamas sipping coffee. Private, for-profit companies gather conviction records from myriad sources, then use them to create databases which can be accessed by any paying customer with a curiosity about someone’s record, or lack thereof.

So, What Shows Up?

If someone performs a criminal background check on an individual, the following information may be revealed:

  • Warrants
  • Arrests
  • Misdemeanor convictions
  • Felony convictions
  • Court records, including judgments, dockets, and orders
  • Sex offenses
  • Records of incarceration

Thanks to the Fair Credit Reporting Act (FCRA), civil suits and arrests will not show up in a criminal background search after the passing of seven years. However, criminal convictions may remain on the report indefinitely. A MA criminal defense attorney can help you protect your rights if you’ve been charged with a  crime.

Can My Record be Sealed?

The only way a criminal record can be hidden from public view is through the process of expungement, also known as sealing. When a judge “seals” a criminal conviction, not only is the record no longer public, the individual can answer “No” on any application asking if they have ever been convicted of a crime. That being said, certain individuals and organizations – such as prosecutors and law enforcement agencies – can still view expunged records. And expungement isn’t always an option.

In order to have your record sealed, you and your offense must meet certain requirements. In most cases, it must have been your first offense, a relatively minor offense, you must have completed your sentence, and a period of time must have passed since completing your sentence. To qualify for expungement, your case must meet one of the requirements below:

  • Your case was dismissed (you were found not guilty, or the case ended without a conviction).
  • Five years have passed since you finished serving your sentence for a misdemeanor offense, and you have not re-offended.
  • 10 years have passed since you finished serving your sentence for a felony offense, you have not re-offended, and your conviction was not for “crimes” against the public, violations of the State Ethics Act, certain sex offenses, and certain firearms offenses
  • Your conviction was for first-offense misdemeanor drug possession (at the judge’s discretion, these cases may be sealed immediately)

A Boston defense lawyer can help you determine if you qualify for expungement. Continue reading

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A criminal conviction in Massachusetts doesn’t necessarily mean the end of a case. If you feel that you’ve been wrongfully convicted of a crime, you may have a few more options. Depending on the circumstances surrounding your wrongful conviction, you may be able to move for a new trial with a new jury. But a judge will only grant a new trial if serious errors or injustices occurred during the original trial. More likely, you will request an appeal of the decision.

In an appeal, the defendant challenges his or her conviction, or the associated sentence. It is possible for the sentence to be challenged by itself, and not the underlying conviction. The appeal is heard by a higher court known as an appellate court. If successful, the appellate court will change the decision of the lower court. In certain cases, an appeal can end a case in its entirety, but generally an appeal simply takes the case back a few stages.

What if the Intermediate Appellate Court Upholds My Conviction?

The appeal process can seem to drag on forever. In most situations, the defendant will first appeal to an intermediate appellate court. If that court upholds the conviction, the defendant can then appeal to the highest court in the state. If still unsuccessful, the defendant can appeal to the U.S. Supreme Court. That is to say, if the higher court approves the request to review the case. A MA criminal defense attorney can help if you wish to file an appeal.

Appeals are generally reviewed only when the request is based on a legal claim made by the defendant during the trial. For example, if a defendant claimed that he was getting ineffective assistance from his counsel during the trial, his request is more likely to be reviewed than if he had stayed silent about his concerns until the trial had concluded.

And errors during the trial don’t guarantee a successful appeal. In order for an appellate court to reverse a conviction or reduce a sentence, the legal error must have likely contributed to the defendant’s guilty verdict. If the defendant’s constitutional rights were violated, however, the conviction may be reversed even if the violation didn’t impact the outcome. A Boston criminal defense attorney can help you determine how to proceed if you’ve been charged with any type of crime.

Can I Appeal if I Plead Guilty?

Yes. But your options are seriously limited. Guilty pleas are intended to be final. In rare situations, a conditional guilty plea may be granted with the ability to appeal a specific issue. In other cases, you may file a petition for something called a writ of habeas corpus. Habeas corpus presents an argument as to why a guilty plea should be withdrawn. For example, what if Bob plead guilty to an assault charge because he thought it was the best option? But new evidence shows that Bob actually acted in self defense? Bob may be able to file a petition for a writ of habeas corpus, with the hope that his conviction will be overturned. If the judge denies the request, he can appeal. Continue reading

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Steven Avery, subject of the popular Netflix show “Making a Murderer,” was denied a new trial by a Wisconsin judge last week. Avery maintains his innocence in the 2005 murder of 25-year-old photographer Teresa Halbach. Despite the finding of new evidence in his case, the judge ruled that there simply wasn’t enough new information to sway the result in Avery’s favor. That being said, the judge was unaware of some key developments in the case. As such, Avery’s attorney has said that they are not giving up.

In June, Avery’s lawyer, Kathleen Zellner, filed a motion seeking a new trial. The motion, which consisted of more than 1,000 pages, claims that his conviction was based on false testimony.

The six-page decision to deny the motion, made by Sheboygan County Judge Angela Sutkiewicz, held that the motion not meet the standard for a new trial. Sutkierwicz went on to explain that the new evidence was too ambiguous to make a difference.

But Zellner has vowed to keep fighting. “We are filing an amended petition because we have additional test results and witness affidavits. The scientific testing is not completed,” she said. “We remain optimistic that Mr. Avery’s conviction will be vacated.”

Motion for New Trial vs. Appeal

In order for a convicted defendant to be granted a new trial, he or she must show that there is a reasonable probability that new evidence is strong enough to change the outcome. A motion for a new trial and an appeal are two entirely different things. For a new trial to be granted, there must be new evidence or evidence of injustice, such as juror misconduct. The following circumstances may warrant the granting of a new trial:

  • Jury misconduct
  • Court errors
  • Misconduct or prejudice on the part of the prosecution
  • Discovery of new evidence
  • Loss or destruction of trial record
  • Ineffective counsel

If any of the above scenarios exist, a new trial may be granted. In Avery’s case, the motion was requested on the basis of new evidence, but the judge didn’t consider the evidence to be compelling enough to grant the motion. If the court does not agree to vacate the past ruling in Avery’s case, he will have to file an appeal, which may or may not be successful.

Where a new trial provides the opportunity to have your case heard again by a new jury, an appeal is an opportunity to have a higher court review your original case for certain mistakes. It is not a new trial, and you cannot present new evidence. A MA criminal defense attorney can help you protect your rights if you feel that you have been wrongly convicted of a crime. Continue reading

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The fall of 2017 will be a time of major decision making for the U.S. Supreme Court and its new Justice Neil Gorsuch. The Court will be deciding on a number of cases, but its focus on the following cases and criminal law issues is of particular interest to attorneys nationwide. A Boston criminal defense attorney can help you protect your rights if you’ve been charged with any type of crime.

Cell Phone Searches

Is cell phone location data simply routing information, or does it constitute conversational content? That is the big question in United States v. Carpenter, the case in which law enforcement officers used cell site data to incriminate Timothy Carpenter. The officers didn’t get a warrant before obtaining this information, and they used it to link Carpenter to locations at which several robberies had occurred. If cell phone location data is only a form of routing information, it is not protected by the Fourth Amendment. If, however, the Supreme Court decides that this information is a form of conversational content, it is protected by the Fourth Amendment, making law enforcement’s actions in the above case unconstitutional.

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Dominick Cristino is a free man. Nearly two years since he was sentenced to up to two-and-a-half years in prison for stalking Milford’s police chief, the MA man’s convictions have been vacated. In addition to physically following the police chief he was convicted of stalking, Cristino also posted various “threatening comments” on Facebook. He was released in April, pending his appeal, and three Appeals Court judges made that release permanent last Friday.

Prosecutors alleged that Cristino’s comments were “true threats” and thus, not constitutionally-protected remarks. Initially,  Cristino’s motion for a required finding of not guilty was denied by Superior Court Judge Daniel M. Wrenn. He ruled that “there was clear evidence to establish that these were true threats rather than protected speech under the First Amendment.” But the appeals court disagreed.

“We conclude that the statements made by the defendant that were the basis for his convictions were constitutionally protected speech, and therefore could not be the basis for conviction,” ruled the court. They went on to say that the First Amendment protects political remarks made about public officials. In fact, these types of comments are at the First Amendment’s core. A MA defense lawyer can help you determine how to proceed if you are facing stalking charges.

Cristino’s Facebook posts were highly critical of both heads of the Milford police department, accusing them of everything from alcohol abuse and inappropriate relationships with criminals, to outright corruption. Cristino also painted critical messages on his truck, posted signs on his property, and followed the police chief throughout town, often driving past establishments frequented by the police chiefs.

While the Appeals Court did say that Cristino’s comments could be considered threats on their own, together they do not constitute stalking. “True threats” are direct threats of physical harm, actions, or words, that reasonably cause the victim to fear for his or her safety.

In an unpublished decision, the Appeals Court panel wrote the following:

“Having reviewed the Facebook postings that were the grounds for the defendant’s convictions and having considered the context of the videos, we conclude that they did not constitute threats of the kinds of unlawful acts of violence that render speech unprotected.”

“Rather, the defendant’s posts ‘primarily discuss issues of public concern,’ as they are clearly directed at exposing what the defendant considered to be shortcomings in the chief’s and deputy chief’s ability to properly perform their public positions,” ruled the court. “In accusing the chief and deputy chief of drinking on the job, spending time with known local criminals, and generally being corrupt, the defendant’s videos were obviously attacking their capacity to effectively serve as police officers.”

What are the Penalties for Stalking in MA?

Stalking crimes are punished harshly in MA. If you have been convicted of stalking, you may be facing the following penalties:

  • First offense: Up to five years in prison, and a fine of up to $1,000
  • Second offense: Up to 10 years in prison

As with all criminal offenses, experienced legal counsel is essential to a positive outcome. A Boston defense attorney can help you determine how to protect your rights if you’ve been charged with stalking. We often think of a stalker as a man who follows his female victim home at night and lurks outside her window. Although this is one example of stalking, this criminal act can take many forms and affects both men and women. Stalking can include physical following, emails, phone calls, and social media posts. And it’s quite common; about 6.6 million people are stalked in the U.S. annually. Continue reading

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According to the American Civil Liberties Union (ACLU), more than 20,000 drug cases are on their way to dismissal following the criminal actions of Annie Dookhan, a former MA state chemist. In 2013, Dookhan pleaded guilty to 27 counts, including tampering with evidence, perjury, and obstruction of justice. The disgraced chemist was called Superwoman by her co-workers because she completed tasks so quickly, but there was a criminal element to her speed. Dookhan was found to have returned positive results for drugs she never even tested. She also forged signatures and mishandled samples.

Thousands of drug convictions have been tainted by Dookhan’s actions. In January, district attorneys were ordered to complete a monumental task; they needed to compile lists of individuals who – they believed – could be re-prosecuted, and another list of those whose cases should be dismissed. On Tuesday, lawyers counted 21,587 cases likely to be dismissed. Only a few hundred will be re-prosecuted.

“From numbers that we’re initially getting, about 95 percent of these tainted drug convictions will be dismissed,” said Carl Williams, a lawyer with the A.C.L.U. of Massachusetts. “And that is a victory for regular people, for people who’ve been tarnished by these drug convictions.”

More than 7,800 cases in Suffolk County, which encompasses Boston, are expected to be dismissed. For many of these people, the damage is irreversible; those locked up for months or years have lost jobs, housing, and relationships. Families have suffered. Some people have even been deported. A MA personal injury lawyer can help you recover damages if your life was negatively impacted by Dookhan’s negligence and criminal behavior.

Wrongful Convictions

Compensating people for wrongful convictions is not only the right thing to do, it shows the public that the government is willing to make amends for its mistakes. The following statement is taken from the website of the Innocence Project, an organization that seeks to exonerate the wrongfully convicted: “Conceding that no system is perfect, the government’s public recognition of the harm inflicted upon a wrongfully convicted person helps to foster his healing process, while assuring the public that the government – regardless of fault – is willing to take ownership of its wrongs or errors.”

Most states, including Massachusetts, have a compensation statute, which compensates a wrongfully-convicted person for each year spent behind bars. When the compensation amounts were last updated under George W. Bush, the recommended amount was up to $50,000 per year. Based on inflation, that amount should now be approximately $63,000 per year. A Boston injury lawyer can help you determine how to move forward if you’ve been wrongfully convicted of a crime.

As a result of her actions, Dookhan was sentenced to three to five years imprisonment, and she was granted parole in 2016. Was justice served? Thousands of people’s lives have changed, and will continue to change as a result of the former chemist’s actions. Continue reading

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In 2012, former drug lab chemist Annie Dookhan was caught tampering with evidence and falsifying test results in thousands of criminal drug cases. For her crime, Dookhan spent three years behind bars. But what about the falsified tests? More than 24,000 drug convictions may have been involved in the tampering scandal. What happens to those individuals? On Wednesday the highest court in Massachusetts rejected a proposal to dismiss all 24,000 convictions, with the exception of those directly impacted by Dookhan’s crime.

As many defendants continue to wait for an opportunity to challenge their convictions, this week the Supreme Judicial Court ruled against ordering the dismissal of all 24,000 cases. In addition, the court declined the prosecutors’ recommendation to take no new action. In lieu of a blanket dismissal, the high court is implementing a three-phase system to handle the cases. If you have been charged with a drug crime, contact a Boston defense lawyer today.

Three-Phase System

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