Massachusetts Legal Developments Blog

Last weekend Boston hosted the straight pride parade.  It was not recieved well. That appears to be the point.  As was the case with past demonstrations of nationalist animosity, the straight pride parade drew substantially more counterprotestors than it did participants.  Some of these counterprotestors were arrested for various offenses, and arraigned in the Central Municipal Court on Tuesday and Wednesday.

Two of the judges in the Central Municipal Court took steps during the arriagnments of the counterprotestors that call into question the limits of the judicial power.  In one example, Judge Horgan ordered the counterprotestors to stay out of the city of Boston while their cases were pending.  So-called "stay-away" orders are common where the alleged crime is related to a particular location.  In Boston, in particular, orders to remain out of the city entirely are more common than in any other metro-area in Massachusetts.  In this case, where the Court's order is to remain out of the entire city of Boston for reasons that have almost nothing to do with the city itself, the order seems pretty clearly overbroad and unconstitutional.  Since at least some of the people who are subject to the order were presumably engaged in deliberate civil disobedience, it would seem like an opportune time for someone to file an interlocutory appeal of the Court's order.  After all, picking fights and taking names is kind of the point of civil disobedience, and it is long since time call attention to, and hopefully end, the practice of banishing people from the city while their cases are pending. 

In another example, Judge Sinnot refused to accept the request of prosecutors in Rachael Rollins' office to dismiss certain charges prior to arraignment.  Rollins was recently elected with a notorioius policy of declining to prosecute certain kinds of cases, including cases in which someone is charged with only resistig arrest (the point being that an arrest should be premised on an actual crime before it becomes a crime to resist it).  In this case, prosecutors moved to dismiss certain cases but the judge refused to allow their motion to dismiss.  Former federal judge Nancy Gertner called the refusal to grant the Commonwealth's request "lawless."

It is hard to find accurate information on what exactly happened, but certain reports suggested that prosecutors had moved to dismiss the cases upon the completion of community service. Other reports suggested that Rollins' peitiotn to the SJC alleged that the judges refused to accept something called a nolle pros.  It seems that some of the confusion over these cases depends on the difference between the two.  A dismissal is an act of the Court. It can be conditional or unconditional, but when the prosecutor moves to "dismiss" a case they are asking the Court to invoke its authority to order charges dismissed. A "nolle pros" (latin) is different because it is not an act of the Court. A "nolle pros" is an act of the prosecutor, which has the effect of unilaterally terminating the prosecution.  Filing a nolle pros might be less desireable for a prosecutor because it cannot be conditioned on any terms that are enforceable by the court. 

Two rock-solid propositions: First, a judge definitely has the discretion to refuse to dismiss a case, even where that request is made by the prosecution.  Second, a judge also has absolutely no authority to refuse to accept a nolle pros.  The trick here may be that a third rock-solid proposition is that the court never has to explain to a party that its action is based on the way the party phrased its motion.  It may simply be that the prosecutor in the room used the words "move to dismiss" when they should have moved to "nolle pros."

Law enforcement recently made arrests around the intersection of Massachusetts Avenue and Southampton Street, which is a part of the area referred to as “Methadone Mile.” These arrests are part of Boston law enforcement’s efforts to make the neighborhood safer following an attack in which a correction officer was beaten with a metal pipe. In total, 16 people were arrested. Seven individuals who were arrested have arrest warrants for missing court appearances in criminal trials, while six others were arrested for new drug offenses. Four other individuals were picked up on straight warrants and have not yet gone to court. 

There a number of reasons why people miss court appearances. Some people are just perpetually late. Other people have a tendency to get lost on the way to court. Some people think that court actually begins at a different time. There are other people who have personal matters like those involving children spring up suddenly and interrupt a planned court appearance. No matter the reason why you have missed a court appearance, it is important to know how to respond if you miss an appearance. 

Contact Your Attorney Immediately After Missing a Court Appearance

Once you realize that you missed your court appearance, the best step that you can take is to contact your criminal defense attorney. Many times, your lawyer will instruct you to go back to court as soon as possible to inform the judge about your reasons for missing your appearance. 

If you appear in court to explain yourself with a lawyer, you might be able to avoid the most serious penalties. For one, your lawyer will likely be able to better justify why you missed court. In some situations, you attorney might also be able to contact the district attorney to explain the situation. 

Understand the Judge’s Perspective

Judges do not like to see people imprisoned or sentenced to large fines. Instead, many judges would rather help individuals rehabilitate and successfully navigate the criminal justice system. Many judges understand that humans sometimes make mistakes and will accommodate you if you had difficulty getting to court or forgot about your appearance. 

Avoid Bad Excuses and Blaming Others

It is critical to avoid non-excuses or explanations that a judge is not likely to believe. For example, you should never blame your court appearance on the fault of your attorney unless you have a very good excuse. These excuses will not work, particularly if they are not supported by your lawyer or the opposing side. 

The judge similarly does not want to hear you blame someone else for your mistake of not making a court appearance. Instead, it is best to own up to your mistake and only provide an excuse if you have a legitimate one. 

Speak with a Criminal Defense Attorney

One of the best ways to respond if you have missed a court appearance is to immediately obtain help. If you need the assistance of an experienced criminal lawyer, do not hesitate to contact attorney Edward R. Molari.

In Commonwealth v. Buttimer, the Supreme Judicial Court recently revisited a legal question that has arisen in the past, and which has been previously resolved, but never in a satisfactory way.  The issue in Buttimer was whether someone could be convicted of armed assault to rob, or assault with a dangerous weapon, where the weapon was a firearm that was not capable of discharging a shot.  It may seem like an academic question, but it comes up more than you might think. If the police allege that someone displayed or pointed a gun at someone else, the fact that the thing they pointed was a gun significantly increases the potential penalty, and moves the case from a misdameanor to a felony.  However, in order to prove that the object was an actual gun, the Commonwealth has to prove that it was actualy capable of discharging a bullet.  That means the object has to be recovered -- which happens a lot less than number of instances where someon points a gun at someone else.

An assault is an act that puts another person in reasonable fear of an imminent battery (a harful or offensive touching).

So, if someone points a gun at someone else, the fact that it appears to be a firearm is enough to make that person afraid, but is that enough to also make out an additional element that -- beyond just causing someone fear -- that the defendant did so with a dangerous weapon?

In 1970, the Supreme Judicial Court said it was, but the decision never made much sense to me. What the Court said was this:

The fundamental reason for permitting a conviction for simple assault on proof of apparent ability of the assailant to accomplish the attempted or threatened battery is that the public peace and order is affected by and dependent upon what is reasonably apparent, and not upon secret fact or reason rendering the assailant incapable of accomplishing the battery. The reason applies with even greater force to a case of apparent ability to accomplish a battery attempted or threatened by means of a firearm. The threat to the public peace and order is greater, and natural reactions thereto by the intended victim and others may be more sudden and violent than in cases where no weapon is involved. There is no reason why the rule of apparent ability should not apply to charges of aggravated assaults by means of weapons. It is sufficient to prove such a charge if the evidence shows an apparent ability to accomplish the battery by means of the particular weapon used. Thus, the mere fact that a firearm brandished by an assailant is known by him to be unloaded, or to be loaded with blank cartridges, does not entitle him to an acquittal on a charge of the aggravated offense of assault by means of a dangerous weapon.

The above analysis is essentially a non-sequiter. The Court observes that “the threat to the public peace and order is greater, and natural reactions thereto by the intended victim and others may be more sudden and violent than in cases where no weapon is involved,” and uses this observation to obviate an element of the crime -- that the alleged dangerous weapon was, in fact dangerous. This is the kind of mistake lawyers frequently try to teach juries to avoid -- using the excess of evidence of one element as a reason to fail to observe the complete absence of another.  The Court starts with the observation that an otherwise non-criminal act becomes an assault without regard to the secret knowledge of the perpetrator because the act is a breach of the peace. If that reasoning is bolstered by the fact that the victim perceived a weapon, that makes the assault a more serious assault, but it does not justify a finding of an additional element that the weapon was, in fact, dangerous.

And now, with Buttimer, the SJC has reaffirmed this line of thinking that what matters is the apparent ability of the object to cause harm.  That's a fine and good reason to warrant the victim's fear that they will be hurt -- making an otherwise non-crimnal act a crime. But the SJC uses the same evidence to establish the further element of the armed nature of that assault, which makes the crime a felony.  It might make more sense if the Court were not explicitly doing so in an analysis of the degree to which the "public peace" is breached, but that's the ground on which the SJC decided to defend its decision.  The answer should be that since what we are talking about is the degree of the breach of the public peace, the Court should only count the fact that the thing the defendant was holding appeared to be a weapon once -- to make the conduct an assault.  To count it again toward a second element is unfair; the Court should have to look to some additional fact, like the operability of the gun, to prove that the conduct was not just a crime, but also a felony.

On July 26, 2019,the Massachusetts Supreme Judicial Court took the unusual step of overturning a trial court order denying the defendant's motion to suppress. The trial court in a criminal case has the authority to exclude from evidence any evidence that is obtained illegally.  However, the rules governing police conduct in the acquisition of evidence are so shot through with exceptions that any trial judge who is inclined to uphold the conduct of the police as a general matter will probably be able to find an exception that fits any case in front of him/her.  On appeal, the court of appeals and the SJC usually defer to the trial court, saying that whatever their view of the evidence may be, it is for the trial court to make determinations about credibility of the evidence.

It is not terribly uncommon for the SJC to reverse a trial court's order granting a motion to suppress evidence, but it is extremely unusual for the SJC to reverse a trial court's order denying one.  That's what it did in Commonwealth v. Tavares.

In Commonwealth v. Tavares, the police were investigating a murder, and received information that a Chevy Malibu had been involved. The next day, an officer saw a Chevy Malibu and pulled it over.  He could not justify the stop of the Malibu on the basis of the murder investigation because there are thousands of such vehicle, and this one didn't even fit the description.  However, the officer decided to stop the Malibu anyway because he said that he saw someone in the back seat that he had a warrant for.

After he stopped the Malibu, as he was walking up, the officer realized that the person he had a warrant to arrest was not present.  The officer then engaged in small talk with the driver, and learned that the Malibu was a rental, and that no one in the car was listed on the rental agreement.  He then told everyone to get out, and held the car to be picked up and returned to the rental company.  After that, a witness identified it as the vehicle involved in the murder, at which point the police got a warrant to search it.

The SJC held that "the stop should have concluded as soon as Detective Schaaf realized he had mistakenly identified the rear passenger, and nothing else had caused concern."  The SJC also held that the Detectiv's knowledge that the vehicle was rented "derived solely from an 'investigatory conversation for which [he] had no lawful basis.'"  Therefore, the reason to order its occupants out, and search the car, was itself derived from the unlawful continued seizure of the vehicle and its occupants after the Detective realized he had no reason to hold them.

Here, the SJC came very close to -- but held back from -- establishing a rule that the fact that a person other than the one listed on the rental agreement is driving a vehicle establishes probable cause for the charge of using a motor vehicle without authority. This is a favorite trick of the Boston Police, in particular.  Boston Police routinely pull over rented vehicles for minor or made up traffic infractions because they think that rental vehicles are often used to transport drugs.  They then use the stop to try to generate a reason to arrest the driver and search the car, hoping to find drugs.  They are wrong because most rental agreements explicitly permit the renter to give permission to any licensed driver, but the police just ignore that part of the contract and say that the rental is limited to the person whose name appears on the paperwork.

This trick has been used to justify countless unlawful stops and searches.  The SJC almost had a chance to address the issue, but ultimately passed because whether the renter had the right to lend the car to a friend or not, that fact was the fruit of the unlawful detention of the vehicle and its occupants, so even if the police were right about their reading of the law, it didn't matter.

As a result, Mr. Paulo Tavares will have a retrial of his 2011 murder conviction.

If you or someone you know has been the subject of a criminal investigation, contact us immediately for a free and private consultation.