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Can a Massachusetts prosecutor use a defendant’s refusal to take a breathalyzer test as evidence of drunk driving? The short answer is no, but understanding why this is the answer is a bit more complicated.

Everyone is familiar with the Fifth Amendment to the United States Constitution’s provision that no person “shall be compelled in any criminal case to be a witness against himself.” We’ve all heard someone – maybe on a TV show or maybe even in person – ‘plead the fifth’ by refusing to answer questions in some formal, legal setting.

What fewer people may know is that the Massachusetts Constitution’s protections against self-incrimination are even broader those contained in the Fifth Amendment. Under the Massachusetts Constitution, in addition to being entitled to refuse to be “a witness against himself,” a defendant also has the right not to “be compelled to . . . furnish evidence against himself.” While the difference in language is slight, its implications in drunk driving cases is very significant

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Massachusetts is often considered an immigrant-friendly state, but according to the General Laws, only citizens of the United States can obtain admission to the Massachusetts Bar. The three statutes governing admission are G.L. c. 221, §§ 37, 38A, and 39. Section 37 and 39 both specifically require applicants to be citizens of the United States to petition for admission. Section 38A allows non-citizens to petition for admission, but directs the Board of Bar Examiners to not recommend admission until the applicant demonstrates that they have become a citizen of the United States. All three statutes are unconstitutional.

In Application of Griffiths, 413 U.S. 717 (1973), the Supreme Court of the United States ruled that a state cannot prohibit bar admission based solely on the non-citizenship of a lawful permanent resident. Lower courts have clarified the limited scope of the holding. Soon after Griffiths was issued, the Supreme Courts of Wyoming and Washington invalidated similar rules that barred lawful permanent residents from applying for admission. See Mansfield v. State Board of Law Examiners, 601 P.2d 174 (Wyo. 1979); Nielsen v. Washington State Bar Association, 585 P.2d 1191 (Wash. 1978) (en banc). The Sixth Circuit, on the other hand has noted that while a state can no longer require that a bar applicant be a citizen, “Citizenship continues, however, to be a requirement for admission by motion.” Bashir v. Supreme Court of Ohio, 652 F.2d 641, 642 (6th Cir. 1981) (per curiam). Recently, a number of other courts have considered whether the state can prohibit a visa-holding applicant or an undocumented applicant from being admitted to the bar.

In LeClerc v. Webb, 419 F.3d 405 (5th Cir. 2005), the Fifth Circuit Court of Appeals upheld a Louisiana rule requiring that every applicant to the bar be a citizen of the United States or a “resident alien” thereof. The Fifth Circuit held that “nonimmigrant aliens,” meaning those who hold a visa instead of a green card, are not suspect class and therefore legislation classifying them are subject only to rational basis review. See id. at 418-19. The Fifth Circuit held the exclusion constitutionally permissible because the classification was rationally related to the state’s interest in assuring “continuity and accountability in legal representation.” See id. at 421.

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Last month, the Massachusetts Supreme Judicial Court heard oral arguments for Bridgeman v. District Attorney for Suffolk County for the second time. Once more, the Committee for Public Counsel Services (“CPCS”) and the American Civil Liberties Union (“ACLU”) both argued that the only fair conclusion to the Dookhan drug scandal is to provide a global remedy for those convicted of drug crimes based on tainted evidence.

The Dookhan scandal first came to light in 2011. Annie Dookhan, a former drug-lab chemist, admitted to falsifying drug evidence in as many as 24,000 cases. Dookhan pleaded guilty to tampering with evidence and obstruction of justice. She served just over two years in prison before being paroled. Her actions, however, still affect the lives of thousands of people convicted of drug offenses. Even if they are out of jail, Dookhan defendants still face consequences related to their convictions.

CPCS and the ACLU aim to convince the high court to provide a “global remedy” to Dookhan defendants. A global remedy could come in the form of blanket dismissals for all drug convictions where Dookhan served as the chemist on record. The District Attorneys for the Counties of Suffolk, Essex, Bristol, Middlesex, Norfolk, Plymouth, and the Cape and the Islands argue that blanket dismissals would be too extreme. CPCS hoped for a global remedy when the case was before the court in 2015, but the ruling fell short. After one more year of litigation, the court may finally acquiesce to the proposal and offer a global remedy to Dookhan defendants.

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In Rass Corporation v. The Travelers Companies, Inc., 2015-P-0358 (Mass. App. Ct. 2016), the Massachusetts Appeals Court reviewed a case brought by a sauce company, Rass, against its insurance carrier, Travelers, for breach of contractual duties to defend, indemnify, and settle an underlying action brought against Rass. The underlying action alleged Rass committed the torts of trade disparagement, misappropriation of trade secrets, and defamation. Rass’s insurance policy only provided coverage for the trade disparagement and defamation claims. It was uncontested on appeal that misappropriation of trade secrets was not covered under the policy, and therefore, Travelers had no duty to contribute or indemnify Rass for whatever portion of damages arose out of that claim.

Before trial in the underlying action, Rass’s attorney recommended a settlement range of $100,000 to $150,000 to settle all claims. During negotiations, Travelers offered to contribute $20,000 to the settlement on the condition that Rass waive its right to seek indemnification. Rass rejected the offer and settled the case for $175,000 without any contribution from Travelers. Rass then filed a complaint in Superior Court alleging Travelers had breached its contract and committed unfair and deceptive acts under chapter 93A.

When a partial-coverage lawsuit proceeds to a final judgment, the trial judge or jury determine the portion of damages allocated for each claim. The insurance company then must indemnify in the amount for each covered claim, while the defendant is left to pay the damages that arise from uncovered claims. Because Rass settled before going to trial, the Superior Court had determine Traveler’s obligation to indemnify by inquiring “how the parties to the settlement viewed the relative merits of the plaintiff’s claims at the time of the settlement and whether, if the insured settled without the carrier’s approval, the settlement amount was reasonable.” Windt, INSURANCE CLAIMS & DISPUTES § 6:31 (6th ed. 2013). Here, the Superior Court found that $140,000 of the $175,000 settlement arose from the covered claims. The Superior Court further found that Travelers had breached its contractual duties by failing to contribute $140,000 to the settlement and concluded that that failure constituted an unfair and unreasonable act in violation of chapter 93A. The Appeals Court affirmed the entirety of the trial court’s judgment, including the apportionment of settlement funds to the covered claim and the finding of a 93A violation.

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When a person commits a crime and causes property to be damaged, destroyed, or lost, the issue of restitution may become relevant. Restitution comes into play when, as part of his punishment for the crime he committed, a defendant is ordered to pay the former owner of the property that he damaged or destroyed the value of that property. A problem can arise, however, when the defendant is too poor to be able to repay the former owner in full.

The problem is that, if a person who is ordered to pay restitution fails to pay it, he may be jailed as a result of that failure, and a poor person is far more likely than a person of means to have trouble paying restitution.  Is it not unfair – and unjust – to jail someone simply because he is too poor to pay restitution, when a wealthier person would be allowed to remain free?

The Supreme Judicial Court addressed that question head on in a recent landmark decision: Commonwealth v. Henry, 475 Mass. 117 (2016). To be sure, previous cases had held that, in deciding whether to order restitution, the judge should consider whether the defendant is financially able to pay the amount ordered, but Henry is the first case in which the Supreme Judicial Court laid down a specific procedure that must be followed by judges in such circumstances. The Court wrote as follows:

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This November in Massachusetts, Ballot Question 4, entitled “The Regulation and Taxation of Marijuana Act,” proposes the complete “legalization” of possession of certain amounts of marijuana for personal use. This stands in contrast to the current state of marijuana law in Massachusetts, which “decriminalizes” possession of certain amounts of marijuana for personal use. What’s the difference? To understand, it helps to know the current state of the law in Massachusetts.

In the past few years, Massachusetts law regulating marijuana has seen two major changes: (1) possession of less than one ounce of marijuana is no longer a criminal offense; and (2) Massachusetts now has a system in place for medical cultivation and use of marijuana. Here’s a brief guide to the basics of where things stand now.

In 2008, “An Act Establishing a Sensible State Marijuana Policy” was passed into law by way of ballot initiative and was codified as G.L. c. 94C, §§ 32L-N. Section 32L declares possession of less than one ounce of marijuana by a person eighteen years or older to be a civil infraction, not a criminal offense, and subject only to a fine of $100.00 and forfeiture of the marijuana. Section 32M requires persons under the age of eighteen to complete a drug awareness program in addition to their civil fine. Section 32N makes clear that civil citations issued for possession of marijuana are to be issued, contested, etc., in the same manner as any other civil citation.

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It is routine that people who have been charged with a crime give relevant evidence to their attorneys so that they can obtain legal advice regarding that evidence. After all, without being able to take possession of such items, attorneys would have a difficult time advising clients their cases.

This was what happened when disgraced former Patriot’s star, Aaron Hernandez, gave a cellphone to his attorneys. Since then, a judge has decided that there is probable cause to believe that the data on the cellphone would provide evidence about a July 16, 2012 drive-by shooting in Boston’s South End that killed Daniel de Abreu and Safiro Furtado, and about the intimidation of a witness to that shooting. Hernandez has been indicated for the drive-by shooting, has been indicted for intimidating the witness by shooting him in the head (the witness lived), and has been convicted of the June 17, 2013 murder of Odin Lloyd.

Ever since March, 2014, the government has been trying to get its hands of the phone. It first attempted to get the phone by asking a judge to approve a subpoena for the phone. That attempt failed when, in January, 2015, the Supreme Judicial Court (“SJC”) concluded that the attorney-client privilege protected the defendant against the use of a subpoena to compel production of the cellphone.

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The top court in Massachusetts recently ruled that a so-called Dookhan Defendant – a person who entered a guilty plea on the basis of drug analyses certified by Annie Dookhan – “who has been granted a new trial based on Dookhan’s misconduct at the Hinton drug lab cannot be charged with a more serious offense than that of which he or she initially was convicted under the terms of a plea agreement and, if convicted again, cannot be given a more severe sentence than that which originally was imposed.” Bridgeman v. District Attorney for the Suffolk District, No. SJC-11764 (May 18, 2015). For those who are unfamiliar with Ms. Dookhan, she “was involved in more than 46,000 cases at the Hinton laboratory from 2003 until her resignation in 2012. Her work was critical to the criminal justice process because she had to certify that drugs were an illegal substance[, and] Dookhan’s wrongdoing led to multiple state charges that she tampered with evidence by either mixing substances or falsely declaring their results.” Milton F. Valencia, Pattern of neglect at state drug lab found, The Boston Globe (March 4, 2014).

Up until Bridgeman was decided, the risk of receiving harsher charges or punishments as a result of successfully withdrawing guilty pleas stopped many people affected by Dookhan’s misconduct from pursuing their rights to a new trial with untainted evidence. In fact, footnote 17 of the Bridgeman opinion discusses a person to whom this happened – he got a new trial based on the evidence tainted by Dookhan, was convicted using untainted evidence, and received a harsher sentence than had been imposed when he originally pleaded guilty.  However, after Bridgeman, anyone who previously feared such a course of events should be relieved.

John Martin, the head of the criminal practice here at KJC Law Firm, LLC, has unique experience in this area. He was the first lawyer to successfully move a court to allow a defendant to withdraw his guilty plea because it was based on evidence that had been tainted by Dookhan.  See Denise Lavoie and Bob Salsberg, Annie Dookhan, Chemist, Allegedly Tampers With 60,000 Drug Samples; Convicts Released, Huffington Post (September 20, 2012, 1:29 p.m.).   Now that it is guaranteed that those who pleaded guilty on the basis of evidence tainted by Dookhan will not receive harsher punishments if they succeed in withdrawing their guilty pleas, it is all the more reason for such people to consider seeking a new trial. The worst case scenario is being retried and reconvicted, with no more punishment added on top of what was imposed as a result of the original guilty plea.  The best case scenario is having the guilty plea vacated, and the original charges dropped.  In any event, if you, or anyone you know is a so called Dookhan Defendant, you should consider calling KJC Law Firm, LLC to discuss your options.

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If you were a party to a trial in Massachusetts, would you want your lawyer to be able to ask potential jurors about their past experiences that relate to your case?  How about questions regarding their preconceptions or biases?  If your answer to either of these questions is “YES!” you might be surprised to find out that, until recently, Massachusetts law did not entitle trial lawyers to ask ANY questions of prospective jurors.  While the vast majority of states have long allowed lawyers to ask such questions of prospective jurors, it was not until our Commonwealth recently enacted An Act Relative To Certain Judicial Procedures In The Superior Court that Massachusetts got its own rule dealing with parties’ right to have their lawyer ask these questions of potential jurors.

Here at KJC Law Firm, we make it a priority to stay abreast of such developments in the law.  To that end, our managing partner, Kathy Jo Cook, recently attended a training designed to provide insights into how best to ask questions of potential jurors through a process called voir dire.  In fact, all of the KJC Law Firm members have been closely studying the Superior Court Order that, starting February 2, 2015, will implement Massachusetts’s new law regarding lawyers asking questions of potential jurors.

Rest assured, when KJC Law Firm brings your case to trial, we will skillfully use every available tool to sit an unbiased, fair jury, who are prepared to award you everything that the law entitles you to.

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Two very recent legal developments that KJC Law Firm is closely following relate to our newly established criminal defense practice, headed by our associate, John Martin.  In Commonwealth v. Gomes, SJC-11537 (January 12, 2015), the Supreme Judicial Court, which is the highest court in Massachusetts, recognized that “eyewitness identification is the greatest source of wrongful convictions,” and set forth a full eighteen pages of new jury instructions designed to prevent wrongful convictions based on inaccurate identifications.

Even more recently, the Supreme Judicial Court also clarified the definition of the term “moral certainty,” which has been part of the Reasonable Doubt jury instruction that jurors in our Commonwealth have received for the past 150 years.  In Commonwealth v. Russeel, SJC-11602 (January 26, 2015), the Supreme Judicial Court wrote that the term “moral certainty” means “the highest degree of certainty possible in matters relating to human affairs — based solely on the evidence that has been put before you in this case.” Attorney Martin’s familiarity with these new instructions will provide our criminal defense clients with the best available means to contest any unreliable eye-witness evidence that the government offers against them, and to emphasize how strong the evidence against them must be in order for them to be convicted of having committed a crime.

Moreover, our newest associate, Luke Rosseel, will also be using these jury instructions to argue against inaccurate identifications and insufficient evidentiary showings in the criminal appeals practice that KJC Law Firm is now undertaking.  Attorney Rosseel was recently certified for appeals and other post-conviction assignments from the Committee for Public Counsel Services Post Conviction Appellate Assignment Unit.  Said more simply, Attorney Rosseel will be accepting appointments to represent people who cannot themselves afford attorneys, and whose criminal convictions involved errors that suggest they were misidentified, and may not have committed the crimes they were convicted of.