Criminal Newsletter

Attorney Redmond publishes newsletters on various areas of law.  Click on the link to view her most recent Criminal Law newsletter, winter 2011-2012.

NWLTR.Criminal Law – winter 2011-2012

$400,000+ Settlement!

Client lived in apartment that experienced floods, smoke, mold, and other extremely uninhabitable conditions. Attorney Redmond and co-counsel negotiated a large cash settlement for Client.

$150,000+ Settlement!

Client was being sexually harassed by a supervisor and a co-worker. Company did nothing to stop this hostile workplace environment. Ms. Redmond and co-counsel negotiated a settlement that allowed Client to remain at work with salary and benefits, plus get a monetary award.

CRIMINAL DEFENSE

What is a crime? It is a social harm that the law makes punishable. There are two basic kinds of crime- felonies and misdemeanors. How do they differ? A felony is punishable by death, or a year or more of imprisonment. Misdemeanors are less serious crimes punishable by fine, forfeiture, penalty, or a brief confinement somewhere other than prison, like county jail or house of correction.

Criminal lawsuits are initiated by the government, by a prosecutor, either federal or state. The standard of proof is “beyond a reasonable doubt.” That means the prosecutor must prove the case to the jury such that each juror is sure the defendant is guilty “to a moral certainty.” This differs from civil lawsuits wherein the standard of proof is “preponderance of the evidence,” or just tilt the scales 51% in your favor.

You have certain rights when accused of a crime. Among them are the right to remain silent, the right to a speedy trial, to confront the witnesses against you, to have the government provide a way for you to make witnesses come testify on your behalf, and the right to an attorney at all critical stages of your case. Most importantly, you have the right to be considered innocent until proven guilty by the government beyond a reasonable doubt. The criminal defense attorney’s job is to protect your rights while your case is open.

EMPLOYMENT DISCRIMINATION

Employment discrimination is a large area of employment law that encompasses discrimination against employees and job applicants based on their race, color, religion, creed, military duty,  national origin, ancestry, sex (gender), sexual orientation, age, handicap status, and genetic information (note that this list is not necessarily comprehensive). Illegal discrimination includes harassment that creates an intimidating, offensive, abusive or hostile work environment for employees, in violation of Massachusetts and Federal employment discrimination laws.

Discrimination occurs when employers (or unions or employment agencies) illegally single out employees or job applicants on the basis of their characteristics. Anti-discrimination laws and related regulations that deal with employment are enforced at the Federal level by the U.S. Equal Employment Opportunity Commission (EEOC), and in Massachusetts by the Massachusetts Fair Employment Practices Act, M.G.L. c.151B, (the Act), as well as other statutes. The Act’s protections apply when an employer has 6 or more employees. The Massachusetts legislature has specifically added a section to c.151B that outlaws sexual harassment. Note that the Massachusetts Fair Employment Practices Act covers discrimination based on sexual orientation, whereas there is no analogous federal protection.

According to the EEOC, employers cannot discriminate against employees or job applicants in any aspect of employment, including the following.

  • Hiring and firing
  • Benefits and perks
  • Testing
  • Retirement plans
  • Disability leave
  • Use of company facilities
  • Training and apprenticeship programs
  • Transfers, promotions, layoffs or recalls
  • Recruitment and job advertisements
  • Compensation, assignment or classification

If employers adversely single out employees for reasons that aren’t specifically prohibited by discrimination laws or related regulations, then employees are not protected from those types of employment discrimination. For example, if a boss fires an employee solely because of a general personality conflict that interferes with the working relationship, then it’s not likely to be employment discrimination. That’s because there is no specific “personality conflict” provision that makes it illegal under Massachusetts or Federal discrimination laws. But, if a boss fires an employee solely because the employee turned 40 years old, then it is likely be employment discrimination under Federal law. Age discrimination against employees who are 40 years old or more is outlawed by the Age Discrimination in Employment Act.

WRONGFUL DEATH – PERSONAL INJURY

Personal injury lawsuits are based on the negligence of the defendant. Wrongful death lawsuits can be negligence based also, but may arise from other types of unjust action on the part of the person or entity being sued. A personal injury suit is brought by the person injured for the resulting damages. Wrongful death suits are brought by the victim’s survivors, who claim entitlement to monetary damages as a result of the improper conduct of the defendant.

A wrongful death claim generally consists of four elements: (1) the death was caused, in whole or part, by the conduct of the defendant; (2) the defendant was negligent or strictly liable for the victim’s death; (3) there is a surviving spouse, children, beneficiaries or dependents; and (4) monetary damages have resulted from the victim’s death.

Personal injury law imposes a variety of duties on all individuals to exercise a reasonable degree of care and caution so as not to cause harm to others. For instance, individuals owe one another the duty to avoid negligent or intentionally wrongful actions, such as reckless speeding when children are present in a school zone. When one of these duties is breached and leads to injury, personal injury law sets the rules by which the victim can recover damages. Personal injury law also establishes the types of damages that can be collected in particular cases, while imposing a specific burden of proof on the plaintiff. The personal injury body of law is remarkably vast, and includes common types of lawsuits such as car accident claims, medical malpractice, defective products, and even dog bite cases.

However, personal injuries don’t even necessarily have to be physical-they could be psychological. Psychological personal injuries are typically caused by psychological trauma associated with life-threatening and/or disfiguring physical injuries, or as a result of witnessing trauma in others, or following personal escape from serious injury following a traumatic event. Before you can collect an award, your personal injury lawyer will have to prove that the defendant is liable. To prove liability, the attorney must also establish negligence.

If there is any failure on your part to exercise reasonable care to prevent injury or damage then there may be comparative (or contributory) negligence, where you and the other party both are at some degree of fault. If you win, you may receive money (an award) to compensate for medical costs, lost wages and lost future earnings as well as possibly for pain and suffering and punitive damages.

POLICE BRUTALITY

Police brutality is a civil rights violation that occurs when a police officer acts with excessive force by using an amount of force on a civilian that is more than necessary. Excessive force used by a law enforcement officer is a violation of a person’s rights under both the U.S. Constitution and the Massachusetts Declaration of Rights. Excessive force is not subject to a precise definition, but it is generally beyond the force a reasonable and prudent law enforcement officer would use under the circumstances. Among the legal remedies available to the victim are monetary damages and/ or injunctive relief. Money would compensate the victim for the harm that they have suffered. Injunctions order the other party to start doing something they have not been doing, or to stop doing something they have been doing.

Simon Glick Stands Up Against Police Brutality

Simon Glik had no idea he was about to get arrested by the Boston Police, then make legal history.

His route that evening in October, 2007, would take him down Tremont Street, next to the Boston Common. Then two things happened: Glik saw three Boston police officers arresting a teenager, and he heard someone yell, “You’re hurting him, stop!” Glik wanted to help, but he couldn’t stop the police. So he took out his cell phone. His cell phone had a camera and a video recorder. He began to videotape the arrest. After the police handcuffed the suspect, one of them turned to Glik and said, “I think you have taken enough pictures.” Glik responded, “I am recording this. I saw you punch him.”

Glik was handcuffed and arrested within minutes, he says. He was charged with violating the state’s wiretap laws, disturbing the peace, and aiding the escape of a prisoner. And of course, they seized his cell phone as evidence of his crimes.

In fact, we do have a solid First Amendment free speech right to videotape openly, especially to tape public officials doing their duty, like when police officers are effecting an arrest. Freedom of expression is particularly important regarding the government. It is the state that has the greatest incentive to be dictatorial and can wield the most effective power of suppression. This is most true of law enforcement. We give the police substantial discretion in the exercise of their duties. That carries a strong tendency to misuse. Absolute power corrupts absolutely. Relative power corrupts relatively. Either way, it’s corrupted power.

He wasn’t the only one the police decided to arrest for filming them during a particularly rough arrest. A year and a half later, in December 2008, Jon Surmacz was at a holiday party in Brighton when the police got rough breaking things up. Surmacz took out his cell phone and videotaped the police actions. Police confronted the 34 year old webmaster for Boston University, handcuffed and arrested him charging violation of the state’s wiretap laws.

Ultimately, both Glik’s and Surmacz’s District Court cases were dismissed/ plead out. But then Glik filed a civil suit against the police officers and the City of Boston. That case is still pending. Recently, the Appeals Court for the 1st Circuit ruled in Glik’s case that the police officers did not have qualified immunity. That means they can be sued as individual persons. Qualified immunity serves to safeguard your assets from lawsuits relating to your job working for the government.

Simon Glik, a 33 year old law student at the time of his arrest, became a criminal defense attorney. Jon Surmacz is a content producer at Boston.com.

Cameras don’t lie.

5 Basic Qualities Needed to Successfully Defend Criminal Cases

An attorney who defends people charged with drug crimes must possess at least these five important qualities:

  1. Determination to perform the work necessary to marshal a powerful defense for every client;
  2. Experience handling cases involving drug charges and the judgment necessary to identify the best defense strategy;
  3. Knowledge of the complex Federal and State laws, court decisions, and rules that apply to drug cases;
  4. The ability to effectively communicate with judges and prosecutors before trial, and if the matter proceeds to trial, the ability to effectively communicate with a jury;
  5. A strong belief in the rights guaranteed by the Federal and State Constitutions, including the right to be free from unreasonable searches and seizures, the presumption of innocence, and the right to remain silent and not help the government prove its case against you.

Knowledgeable attorneys experienced in drug defense law are best able to identify a winning defense strategy. In most drug cases, the defense attorney argues one of the following defenses: 1) insufficient evidence of possession or intent; 2) the police conducted an unreasonable search, seizure, or interrogation; 3) the police conducted and improper or inadequate investigation.

Oftentimes, when the police find drugs in a car, or in a house or apartment, they will charge everybody who is present with drug possession, or even with intent to distribute the drugs. The attorney’s knowledge of the law is crucial in these circumstances. Under both Federal and Massachusetts law, merely being in the presence of illegal drugs does not prove that a person possessed them.

In cases where a defendant is arrested with just a small amount of drugs in his possession, the prosecutor will often charge the defendant with the more serious offense of intent to distribute, if the drugs were contained in separate packets. However, under Massachusetts law, the quantity of drugs possessed must be very large before the Court will sustain a conviction for intent to distribute from this fact alone. This is very important because, where the prosecutor can prove intent to distribute drugs, the punishment is usually more severe. In fact, “mandatory minimum” sentences, where a defendant is not eligible for parole, are frequently handed down in cases involving distribution of drugs or intent to distribute drugs.

Challenging the legality of searches and seizures conducted by the police, with or without a search warrant, is one of the most complex areas of criminal defense law. If the police recover drugs by means of an illegal search, then the drugs must be excluded from evidence under the “exclusionary rule” of the Federal and Massachusetts Constitutions. Most drugs will be excluded if the defense attorney persuades the Court that the police search was conducted in an illegal manner. For this reason, it is of the utmost importance that the defense lawyer has superior knowledge and understanding of search and seizure law, and the ability to clearly explain to the judge why the evidence must be excluded. In many cases, the only defense available is to establish the illegality of the search.

A lawyer’s knowledge and experience defending drug cases is very important in helping her indentify improper or inadequate methods of investigation used by the police. For example, if the police allege they observed a drug transaction while conducting surveillance of someone or some location, the lawyer can cast doubt on the police testimony if there are no photographs or videotapes. The lawyer can show this to be a police failure to secure irrefutable evidence. When the police seize money or drugs, they often fail to test for fingerprints or DNA evidence. Failure to run those available tests can be grounds to doubt the testimony of police officers. If the police arrest a defendant who possesses drugs, then they fail to follow up with a search of the defendant’s home for evidence of drug dealing, the defense lawyer can use that to cast doubt on the police claim that the defendant intended to distribute those drugs.

When a drug case is not dismissed prior to trial due to lack of evidence or an illegal search and seizure, and the defendant does not take a plea, then the battlefield shifts to the trial court.

A trial attorney must carefully prepare a case for trial. To be effective at trial, a lawyer must be able to think quickly, to act decisively, and to perform under pressure in public. Not every lawyer has what it takes. Many lawyers are afraid to go to trial because they lack experience. This can lead to advising the client to plead guilty even if there are good grounds to believe a jury would return a verdict of not guilty.

Just be sure the lawyer you hire to defend you has the five basic qualities listed at the beginning of this article. That is the first step in getting a not guilty verdict.

The New CORI Law Makes it Better for You

The new CORI law1 takes effect in two stages; first stage by November 4, 2010, second stage by May 4, 2012.

In November, 2010, the Criminal History Systems Board (CHSB), the agency responsible for the collection, storage, dissemination and use of CORI, was renamed the Department of Criminal Justice Information Services. Its mission will remain the same. Other changes instituted in the first stage include a ban on questions about your criminal history on the initial written job application, unless the employer is required by state or federal law to investigate a job applicant’s criminal history. This section is popularly known as the “bans the box” provision. Also under the new law, certified volunteer agencies will be able to get CORI for paid staff, vendors, and contractors as well as volunteers.

A major new change as of May, 2012, is that CORI will be available on the internet, for a fee. Employers and landlords who have standard access to CORI will be allowed to see the following: all convictions for murder, manslaughter, and sex offenses; any felony convictions that happened within the last 10 years or for which the person was incarcerated; any misdemeanor convictions that happened within the last 5 years or for which the person was incarcerated; any open criminal cases will appear including those continued without a finding (CWOF). Please note- if any conviction appears under the above rules, then all prior convictions will appear, regardless of when the conviction happened.

Employers that require additional access to CORI because of a statutory, regulatory or accreditation requirement will have that access. This category includes schools, camps, banks, security guard companies, hospitals, day care centers, nursing homes, assisted living facilities, councils on aging, public housing authorities, security systems installers, amusement device operators, and insurance companies.

Sealed records will never appear on a CORI, and the CORI will not show that a sealed record exists. Beginning May, 2012, individuals may request that their criminal records be sealed according to the following schedule: misdemeanor- 5 years after the conviction or any period of incarceration, whichever is later; felony- 10 years after the conviction or any period of incarceration, whichever is later; sex offense- 15 years after the conviction or any period of incarceration, or after the obligation to register as a sex offender ceases, whichever is later. Sex offenders classified as Level 2 or Level 3 will not be eligible to have their convictions sealed. To be eligible for sealing, an applicant must not have a conviction for any crime during the above waiting periods.

Any member of the general public can get CORI information for a specific individual. Upon written request, they can access information about a particular conviction for a limited time: felony- convictions punishable by 5 years of imprisonment or any felony conviction, until 2 years after release from custody; misdemeanor- until 1 year after release from custody; any conviction
resulting in a prison sentence, throughout the period of incarceration, probation or parole.

You may obtain a copy of your entire CORI report. You may also request, free-of-charge every 90 days, a self-audit that identifies all organizations and individuals that have requested your CORI report. This self-audit will not include any requests for your CORI made by law enforcement or criminal justice agencies. More frequent audits may be requested for a fee. Interested in getting a copy of your CORI, or getting your criminal records sealed? You must contact the Massachusetts Office of the Commissioner of Probation (OCP) at 617-727-5300. Additional information is also available at the OCP web site at: http://www.mass.gov/courts/probation/forms.html.


1 M.G.L. c. 256, “An Act Reforming the Administrative Procedures Relative to Criminal Offender Record Information and Pre- and Post-Trial Supervised Released.” (See Senate, No. 2583) Approved by the Governor, August 6, 2010.