Massachusetts Lawyer Blog

The U.S. Supreme Court in, Melendez-Diaz v. Massachusetts (PDF), concludes, "[t]he Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits[.]" Thus, MA defendants and defense attorneys will now be allowed to challenge the prosecutions' evidence prepared for trial by questioning the person who prepared a forensic report or analysis. SCOTUS Blog's analysis of the MA case states,

Expressing a heavy dose of skepticism that crime lab reports are so reliable as to be beyond question, the Supreme Court on Thursday cleared the way for chemists and other scientists who prepare such reports to be summoned to the witness stand in criminal trials to defend their analysis.  The 5-4 ruling in Melendez-Diaz v. Massachusetts (07-591) resulted from some unusual alliances among the Justices, and continued the deep division within the Court over how to interpret the Constitution’s guarantee that an individual on trial for a crime has a right to face and challenge the witnesses for the prosecution.

Justice Antonin Scalia, writing for the majority, found this case to follow the court's precedent expressed in Crawford v. Washington. In laying the framework, Scalia states:

The Sixth Amendment to the United States Constitution, made applicable to the States via the Fourteenth Amendment, Pointer v. Texas, 380 U. S. 400, 403 (1965), provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” In Crawford, after reviewing the Clause’s historical underpinnings, we held that it guarantees a defendant’s right to confront those “who ‘bear testimony’” against him. 541 U. S., at 51. A witness’s testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. Id., at 54.

See the SCOTUS Wiki for more on this case.

Technorati Tags: MA, Confrontation, Defense, Supreme Court, Forensic

My new Privacy Law and Policy blog is underway. This blog examines privacy law issues that include:

• Privacy Rights
• Privacy Invasions
• Security Breaches and Crimes
• Open Government

I help individuals in civil and criminal matters and represents municipalities and businesses in privacy compliance matters, security breaches, commercial privacy infringements, cybercrimes, and crimes involving privacy issues.

You can also follow Kevin Whitaker on Twitter at http://twitter.com/kevinwhitaker

Massachusetts attorney Kevin Whitaker's new Privacy Law and Policy Blog is live.

Technorati Tags: Privac, Privacy Law, Privacy Lawyer, Privacy Attorney

According to a report released by the Pew Center on the States,

Explosive growth in the number of people on probation or parole has propelled the population of the American corrections system to more than 7.3 million, or 1 in every 31 U.S. adults [.]

With respect to Massachusetts, here are some of their findings:

• 1 in 24 adults is under correctional control (probation, parole, prison, or jail.)
• 1 in 28 is on probate or parole.
• 1 in 190 is in prison or in jail.
• $1.25 billion is spent on corrections or 4.6% of 2008's general fund.
• 1 day of prison ($130.16) = 18 days of parole.
• For every dollar spent on prisons in 2008, 4 cents was spent on parole.

Anecdotal evidence suggests crime may rise in tough times, what impact will this have on strained budgets already compromised on public safety issues?

Craig Ball, in his article, GPS Evidence Might Drive Your Case Home, writes:

Think how many murders, rapes, burglaries, robberies, thefts, kidnappings and drug deals could be solved -- and innocent persons exonerated -- by reliably placing suspects in space and time. DNA just puts the accused at the scene. Reliable GPS data puts the suspect there between 9:42 and 10:17 p.m. and reveals where she came from and went
next.

With the FCC's rules getting stricter on cell phones and locating services (as well as GPS systems in corporate vehicles or being used by consumers), this may be another area to keep watching in upcoming civil and criminal cases in Mass. and around the country.

A small sampling of other blogs or posts from other blogs discussing GPS and various civil and criminal legal issues are:

• GPS Tracking Systems
• Use of GPS Tracking Devices in the Workplace - Some Things Employers Should Consider
• Law - "Police Using G.P.S. Units as Evidence in Crimes"
• GPS: Privacy Law Blog
• GPS Trackers Foil Cheating Spouses
• John Burkoff on GPS and Search Law
• Stalkers Use GPS to Track Victims

Blogs, social networks, and the web extend well beyond Massachusetts borders thus it's often instructive to look around the country and consider how laws are developing elsewhere as they relate to blogging and cyberspace in general. Trial lawyers of both today and of the future will need to be well versed in the law and understand this evolving interactive arena that changes day-by-day. Blogger and California law professor Eric Goldman recently mentions a case involving blog postings being introduced as evidence in a trademark infringement lawsuit. He quotes the court's holding which excluded the blog's comments from evidence.

The Court declines to consider these postings in reaching its decision. The Court is concerned, on this record, that the blog entries lack sufficient indicia of reliability.FN4

Nothing is known about the persons who made the entries, about whether they are related in any way to either party or whether they are describing true events and impressions. Moreover, the authors' meaning and the import of the blog entries are far from clear.

FN4. This should not be construed as a ruling by the Court that entries on Internet blogs could not, on a different record, be reliable and admissible.

(The case was as consumer confusion case on whether "Mooo Tracks" ice cream infringes upon "Moose Track" ice cream. Blue Bell Creameries, L.P. v. Denali Co., LLC, 2008 WL 2965655 (S.D. Tex. July 31, 2008)).

You can look at this from two perspectives, the blog comments were kept out. On the other hand, there were some criteria listed for their exclusion. If these were met, would the comments be allowed into evidence here? It would seem so, why shouldn't they be? Look to the next round of cases to have greater foundations laid down concerning the inclusion of blog comments as evidence.

Like many attorneys I talk with, I'm already seeing more of my clients who are relying on blogs or websites for much of their news. The constantly dwindling size of my newspaper backs this up too. Some do believe, "If I read it, then it's true," but as we know, that's often not the case.

Reliability, validity, authenticity are continuing concerns of justice and in the short term, it seems the web won't make things easier in these areas. Here the law still has much to work out regarding how it's going to keep pace with the web, social media, web 2.0 or whatever name or thing is next. Smart trial lawyers will need to keep pace with these evidentiary possibilities as more and more communications and events are recorded somewhere someplace electronically. Appellate courts and lawyers should see interesting and intellectually stimulaing times ahead in this area of law. While some of the tools of proof may be new, the principles remain the same -- it may just take a little time to connect the two.

The Massachusetts Supreme Judicial Court's (SJC) ruling in Commonwealth v. Donohue upholds MA Sheriffs' powers to release inmates wearing a GPS tracking device rather than serving the full sentence imposed on them by the courts.

There are interesting arguments to consider here: balance of powers, executive vs. judicial vs. legislative, prison overcrowding, reintergration with society, activism vs. legal realism... With another seat on the court opening, Governor Patrick has another opportunity to direct which way those debates lean for the years to come.

An interesting article on law.com recently discussed the issue of lawyers asking jurors about their medication use. With so much of the population on medication, is drug use something that should be questioned of potential jurors? If so, how far should questioning go? Do we ask a general question? Whether the use of medication will interfere with a juror's duties, or do we delve deeper into more specific questions about the person, their conditions, and their treatments? The article, by Julie Kay, offers pros and cons while raising issues likely to continue making headlines(juror falling asleep in murder trial, someone goes off their medications during trial...).

As an attorney-advocate there may be times when seeking this information makes sense for my client. As the lawyer for my client I have the duty the pursue what's in my clients best interests. Personally, however, I think when we start asking jurors to divulge what medication they're taking, we're crossing a finer line. We have to wonder if the jurors' themselves aren't thinking, "Who is actually on trial, here?" Of course there are going to be exceptions to every rule, but speaking from a policy perspective, I'd rather have privacy rights' invasions remain the limited exceptions and not become the standard rule.

From the SJC, a Diagram (see below) showing the Massachusetts Court System. Also, a resource titled, Representing Yourself in a Civil Case: Things to Consider When Going to Court.

When asked, "What are my chances at winning at trial?", most lawyers in Massachusetts or elsewhere would reply, "It depends." A recent article in the New York Times is offering some percentages and cost estimates that will likely raise a few eyebrows.

The article entitled, Study Finds Settling Is Better Than Going to Trial, discusses a study finding settlement is statistically generally the best option. The article indicates plaintiffs were wrong to go to trial in 61% of the cases and defendants were wrong to proceed to trial in 24% of cases. Both were wrong because they could have settled the case for an amount better than what was achieved at trial.

The article reports:

...in just 15 percent of cases, both sides were right to go to trial — meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered.

It's worth noting, however, that the estimated cost for making the wrong choice was a lot greater for defendants ($1.1 million) than it was for plaintiffs ($43,000).

While numbers are one factor to consider in proceeding to trial, the issues of civil justice, correcting a wrong, or having your day in court are worth something of societal value too. These are issues that can't be measured in dollars or percentages, but at the same time lawyers need to advise their client's to pursue their best interests. In the end, the right question may not only be: "What are my chances of winning at trial?" but also ,"Why do I want to go to trial?" The decision is always the clients and it's a decision that should be based on what is right for them, even when it's against all odds.

An ABA Journal Article, "Former Law Dean Obtains Internet Addresses of Anonymous Online Critics", is a reminder that what one anonymously writes on the internet may not be anonymous.

Could your blog, comments, or other online postings land you in the middle of a defamation suit? Or raise the possibility of an interference with business relations claim? Are you anonymously mentioning competitors or promoting your services in a manner that could be seen as unfair competition or as violations of consumer protection laws?

Things to consider before making "anonymous" postings or contributions. In the alternative, this is also a means to seek protection when you, your business, or your children are the targets of anonymous online attacks.

In Blank Rome's Newsletter, Ninth Circuit Ruling Raises Stakes for Companies and Individuals Facing Parallel Civil and Criminal Investigations By: Matthew D. Lee and Tyler Brody, they discuss issues raised in a case were a civil governmental investigation was being coordinated with criminal investigations, United States v. Stringer, 521 F.3d 499 (9th Cir. 2008) Download Case.

The criminal investigations were slowed down and not overtly acted upon so the civil investigation could proceed and obtain statements which would not likely to be provided in a criminal case.  Here, the civil and criminal activities were closely coordinated and the civil investigators were even instructed on how to ask questions in depositions to help build the government's criminal case.  When the target's attorney asked about the possibility of a criminal investigation, despite knowing in was ongoing, the civil investigation did not need to disclose this fact when an SEC Form 1662 was provided which makes a blanket statement that information collected may be shared with other governmental agencies.

The Blank Rome article states:

The impact of the Stringer decision on how counsel should approach the defense of a civil investigation cannot be under - stated. Defense attorneys must be aware that their clients can potentially, and unknowingly, waive their Fifth Amendment rights after they are given minimal notice by civil investigators. Thus, even if a government investigation appears to be merely civil in nature, an astute defense attorney must anticipate the possibility that the civil attorneys are working with, or taking direction from, prosecutors seeking to build a criminal case. Counsel also must realize that, simply because the existence of criminal investigation is not readily apparent, does not mean that one is not underway, especially if their clients are cooperating with civil investigators. Indeed, Stringer allows criminal and civil investigators to conceal a significant amount of collaboration and joint strategic planning without triggering concerns that the government is acting in bad faith.

They conclude:

The Stringer decision shows that defense counsel should handle the defense of a client subject to a civil investigation as though it were criminal, and strongly consider the extent to which their clients should be cooperating with government lawyers, particularly where the lawyer knows that the client may have criminal exposure. Because the result of Stringer affords government lawyers so much leeway in using evidence collected in a civil investigation to build a criminal case, counsel must be careful not to allow their clients to supply the government with the proverbial rope with which they will ultimately be hung.

While not a Massachusetts finding, the New York Times in an article entitled Legal Drugs Kill Far More Than Illegal, Florida Says, states:

An analysis of autopsies in 2007 released this week by the Florida Medical Examiners Commission found that the rate of deaths caused by prescription drugs was three times the rate of deaths caused by all illicit drugs combined.
...
The Florida report analyzed 168,900 deaths statewide. Cocaine, heroin and all methamphetamines caused 989 deaths, it found, while legal opioids — strong painkillers in brand-name drugs like Vicodin and OxyContin — caused 2,328.

The article also states,

The report’s findings track with similar studies by the federal Drug Enforcement Administration, which has found that roughly seven million Americans are abusing prescription drugs. If accurate, that would be an increase of 80 percent in six years and more than the total abusing cocaine, heroin, hallucinogens, Ecstasy and inhalants.

A recently passed law in Weymouth, Massachusetts prevents level three sex offenders from establishing residency within 1,500 feet of places that children frequent. The law was recently covered in a Boston Globe article by Johann Seltz. The same topic is covered by in the Patriot Ledger's article by Jack Encarnacao as well as the Weymouth News article authored by Ed Baker. In the interest of full disclosure, I'm quoted in each article as Chairman of Weymouth's Ordinance Committee.

Bruce Selya, a judge since 2005 with the 1st U.S. Circuit Court of Appeals has been named chief judge of The U.S Foreign Intelligence Surveillance Court of Review. This court handles appeals over wiretaps of suspected terrorists or spies. It was created to hear government appeals when lower courts reject the government's application.

The Providence Journal reports Selya will take over as chief judge on May 19 and his term will run through 2012. Selya, from Rhode Island, was a federal judge before being appointed to the Federal Appeals Court in 1986.

A Congressional Research Service Report, The U.S. Foreign Intelligence Surveillance Court
and the U.S. Foreign Intelligence Surveillance Court of Review: An Overview, dated January 24, 2007, by Elizabeth B. Bazan, Legislative Attorney, American Law Division provides a 15 page report. The Report's Summary states:

The national debate regarding the National Security Agency’s Terrorist Surveillance Program (TSP) focused congressional attention on the U.S. Foreign Intelligence Surveillance Court and the U.S. Foreign Intelligence Surveillance Court of Review created by the Foreign Intelligence Surveillance Act. Congressional interest in these courts has been heightened by the January 17, 2007, letter from Attorney General Gonzales to Chairman Leahy and Senator Specter advising them that a Foreign Intelligence Surveillance Court judge had “issued orders authorizing the Government to target for collection international communications into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization,” stating that all surveillance previously occurring under the TSP will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court, and noting that the President has determined not to reauthorize the TSP when the current authorization expires. This report examines the creation, membership, structure, and jurisdiction of these courts. It will be updated as subsequent events may require.

Wikipedia gives a general overview of the topic,

The United States Foreign Intelligence Surveillance Court of Review is a U.S. federal court authorized under 50 U.S.C. § 1803 and established by the Foreign Intelligence Surveillance Act of 1978 (known as FISA for short). It is a three judge panel whose sole purpose is to review denials of applications for electronic surveillance warrants (called FISA warrants) by the United States Foreign Intelligence Surveillance Court (or FISC). Each judge of the FISC, in turn, has the jurisdiction to oversee requests for surveillance warrants by federal police agencies (primarily the F.B.I.) against suspected foreign intelligence agents inside the United States. Any appeals from the Court of Review are made directly to the Supreme Court. Like a grand jury, the Court of Review is not an adversarial court; rather, the only party to the court is the federal government, although other parties may submit briefs as amici curiae. Records of the proceedings are kept, but they are classified, although copies of the proceedings with sensitive information redacted may be made public.

The judges of the Court of Review are district or appellate federal judges, appointed by the Chief Justice of the United States for seven year terms. The terms are staggered so that there are at least two years between consecutive appointments. A judge may be appointed only once to either this court or the FISC.

The Court of Review was called into session for the first time in 2002 in a case referred to as "In Re Sealed Case No. 02-001". The FISC had granted a FISA warrant to the F.B.I., but had placed restrictions on its use; specifically, the F.B.I. was denied the ability to use evidence gathered under the warrant in criminal cases. The Court of Review allowed a coalition of civil liberties groups, including the American Civil Liberties Union and the Electronic Frontier Foundation, to file briefs as amici curiae arguing against the F.B.I's new surveillance regulations. The Court of Review held that the restrictions that the FISC had placed on the warrant violated both FISA and the USA PATRIOT Act and that there was no constitutional requirement for those restrictions.

Current composition of the court listed by Name, Circuit, Appointed, Expiration of Appointment Edward Leavy (presiding), Ninth, September 25, 2001, May 18, 2008 Ralph K. Winter, Jr., Second, May 18, 2003, May 18, 2010 Bruce Marshall Selya, First, October 8, 2005, May 18, 2012 List of former judges Laurence H. Silberman, D.C., May 18, 1996, May 18, 2003 Ralph B. Guy, Jr., Sixth, October 8, 1998, May 18, 2005 The exact dates of Judge Silberman's tenure are uncertain.

In 2002, Anita Ramasastry, an Assistant Professor of Law at the University of Washington School of Law in Seattle and the Associate Director of the Shidler Center for Law, Commerce & Technology wrote a critcal review entitled, "THE FOREIGN INTELLIGENCE SURVEILLANCE COURT OF REVIEW CREATES A POTENTIAL END RUN AROUND TRADITIONAL FOURTH AMENDMENT PROTECTIONS FOR CERTAIN CRIMINAL LAW ENFORCEMENT WIRETAPS"

While "A history of Foreign Intelligence Surveillance Court" indicates:

Continue reading "AP Reports Federal appeals judge in Boston named top judge of wiretap court" »