O'Brien Law Boston

Criminal Defense Blog

Ineffective Assistance of Counsel May Be Grounds for Withdrawal of Guilty Plea

Today, the Masschusetts Appeals Court issued its decision in Commonwealth v. Almonte, discussing the standard for a criminal defendant to withdraw his guilty plea on the grounds of ineffective assistance of counsel.

In 2005, the defendant was charged with one count of assault and battery by means of a dangerous weapon, and one count of assault and battery on a child causing injury, arising out of allegations that he had physically abused his minor daughter. Following plea discussions, the defendant and the Commonwealth agreed to plead guilty on both counts, with concurrent sentences of one-year of confinement, suspended for two years, upon certain probationary terms. The defendant and the Commonwealth submitted a “Tender of Plea” form, also known as the “green sheet,” to the Lawrence District Court, outlining these terms.

Massachusetts High Court Strikes Down Mandatory Sentence of Life Without Parole For Juveniles

DECEMBER 30, 2013

Until last week, Massachusetts’ statute imposing a mandatory sentence of life without parole for those convicted of first degree murder applied equally to adults and juveniles who were under the age of 18 at the time of the crime. However, interpreting a 2012 decision from the United States Supreme Court, the Massachusetts Supreme Judicial Court (“SJC”) has held that denying such juveniles the opportunity to be considered for parole is unconstitutional under both the federal Constitution and the Massachusetts Declaration of Rights.

In 1981, Gregory Diatchenko, who was 17 years old at the time, stabbed a man nine times, killing him. Diatchenko was convicted of first degree murder and was sentenced to a mandatory term of life in prison without the possibility of parole. The sentence ensured that Diatchenko would die in prison.

Speedy Trial: A Guaranteed Right Or An “Either/Or” Choice?

DECEMBER 23, 2013

On December 5, 2013, the Massachusetts Supreme Judicial Court (SJC) heard oral arguments in Commonwealth v. Taylor, a criminal case that seeks a balance between a defendant’s right to a speedy trial and his right to receive “automatic discovery” from the prosecution.

In addition to a criminal defendant’s right to a speedy trial under the Sixth Amendment to the United States Constitution, Massachusetts Rules of Criminal Procedure Rule 36 provides that a criminal defendant must be brought to trial within twelve months of the date of his arraignment. Under the rule, some specific periods are excludable from the total calculation of the twelve months. If this right is violated, then the defendant is entitled to a dismissal of the criminal charges against him in the case.

The Massachusetts rules also require that the prosecution automatically turn over to defense counsel certain items and information that are relevant and material to the prosecution’s case or to the defendant’s potential defenses. Such information and items include witness statements, statements by the defendant, and other evidence collected by the prosecution in connection with the charges against the defendant.

In Taylor, the defendant was arraigned on murder charges in Suffolk Superior Court in August 2006. By the fall of 2006, the prosecution still had not turned over critical evidence that fell within the mandatory automatic discovery provisions of the Massachusetts rules. That evidence included a recording of the police interrogation of the defendant and statements by a chief witness (who the defendant claimed was actually responsible for the alleged murder), as well as seventeen audio recordings of police interviews conducted in May 2006 and the audio and transcripts of eleven witnesses who testified before a grand jury. Although the court ordered the prosecutor to produce the missing automatic discovery items, the prosecutor did not timely do so, and requested additional time. Defense counsel made clear to the prosecution and the court that, notwithstanding the prosecution’s request for more time to comply with its mandatory discovery obligations, the defendant was not waiving his right to a speedy trial. The court granted the prosecution additional time, but noted that “Rule 36 will not be waived from this date until the time of compliance.”

Computer Breach Likely in Convention Credit Card Theft Case

DECEMBER 20, 2013

This fall, hundreds of attendees at conventions in Boston fell victim to credit card theft. However, police now think that there could be many more victims throughout the city.

According to Boston Police Detective Steven Blair, the thefts are more widespread than previously thought and people who did not attend the conventions at the Boston Convention & Exhibition Center in October and November could also be victims.

The new information comes after interviews with credit card companies. Blair said that there could be hundreds more victims. This is in addition to the hundreds who have already reported fraudulent and unauthorized charges to their credit cards after visits to Boston.

At present, there have been about 300 people who have reported compromised credit cards after attended the American Society of Genetics meeting and the American Public Health meeting, held in October and November respectively.

Although police remain unsure as to how the thefts were carried out, the thieves most likely hacked into a computer system to capture the data. There has not been a breach found at the convention center, adjacent hotel, or the local restaurants and bars. The Massachusetts Convention Center Authority announced that the thefts did not occur in the facility to reassure convention planner scheduled to meet in January. Some employees of the authority were also victims.

After the convention in Boston, victims of the theft reported their credit cards being used around the United States in clothing stores, drug stores, and other retailers to buy gift cards. The gift cards are able to be resold for cash.

The victims reported that they used their credit cards mostly in nearby restaurants and businesses, including M.J. O’Connors and City Bar. Both of these establishments are located in the Westin Boston Waterfront Hotel. The Briar Group owns both restaurants, and reports that its security consultants are yet to find any problems in their systems. Similarly, the Westin has also been unable to find any breaches of security.

The state attorney general and US Secret Service are also investigating the theft. Boston Police have reached out to major credit card companies, and with their help are retracing the steps of the potential victims and pinpointing locations where the cards were used.

BPD Officer Accused of Pointing Gun at People while Off-Duty

DECEMBER 13, 2013

A Boston Police Officer has been accused of pointing her pistol at two people while off duty in Roxbury. His fellow Boston Police Officers arrested Officer Sandro Fonseca on Wednesday night after his .380 caliber pistol with laser sight fell from his waistband.

Fonseca was arraigned on Thursday in Roxbury Municipal court. He has pled not guilty to all charges. Bail has been set at $5,000 cash. Fonseca previously was in the Marine Reserves for six years, beginning in 2002. He served as a rifleman and ended his career as a sergeant, spending some of his time serving in Fallujah.

Attorney Kenneth Anderson is representing Fonseca, and noted that Fonseca saved his partner’s life this past summer during a gunfire exchange in South Boston.

Fonseca’s partner as well as Officer Ronald McGillvary, who serves as vice president of the Boston Police Patrolmen’s Association, attended the arraignment.

According to Anderson, Fonseca was intoxicated when the incident occurred, and he still could smell alcohol on his client at their meeting, which occurred 12 hours later.

The report filed in court says that police responded to 66 Forest St. They were to question three men following claims by a neighbor that they had attempted to rob her and her disabled fiancé, threatening them with a handgun that had laser sight. The police surrounded the building, and officers on the scene saw the three men looking out of a window on the first floor.

After repeated requests from the officers, the three men finally came out from the building, with Fonseca leading. He had a police radio in one hand and was mumbling incoherently to one of the officers.

Officer Ward then pat risked Foseca, and felt the object on his waistband, which fell. Upon seeing that it was a gun, Ward pushed the suspect off to other nearby officers, who secured him. The other two men, Alides Foseca and David Fenandes, were also taken into custody. Fernandes had to be arrested using force.

Mikia Steed informed officer that her fiancé was coming home from a store nearby when the three men confronted him, one of whom had a pistol with laser sight. The man with the pistol pointed it at her fiancé’s face. Then, when Steed confronted the men, the armed man pointed the gun at her.

The other men told her the armed man was drunk, and that she and her fiancé should ignore the whole scene. However, Steed called police and both she and her fiancé identified the armed man as Fonseca.

The Boston Police Department’s Anti-Corruption Unit is investigating the incident. Fonseca has been put on an administrative with pay pending the results of the investigation. He has been with the BPD for five years.

The Basics of Massachusetts Bail Laws

DECEMBER 10, 2013

A clerk, assistant clerk or judge sets Massachusetts’s bail. When a clerk or assistant clerk is setting bail it is done following the person’s arrest, when they are being held at a police station or jail, and before the person’s arraignment on the pending criminal charges. Judges will set bail following the arraignment and usually after the assistant district attorney requests it. They can set bail without the request being made as well. Bail is meant to ensure that the defendant will show up for their future court appearances. The particular amount is set based on a number of factors, including their connection to the community, their criminal history, flight risk, the nature of the case, past defaults and the safety risk to the community. Courts will also look into any other current pending cases against the defendant.

The amount bail is set at can vary greatly. Bail can be as low as $50 or a judge can choose to hold someone without setting bail, which tends to happen in cases involving very violent crimes. A judge can also hold a defendant without bail if the crime has a considerable mandatory minimum sentence, especially if the defendant is not a US citizen. Bail orders are often appealed to the superior court if the defendant is unable to pay, and further appellate rights exist for bail that a defendant wants to challenge. However, these appellate rights are not used often and are rarely met with success.

In rare cases, a judge will set bail with certain conditions that are out of the ordinary but do not often get reversed. For instance, a judge could set bail and revoke a defendant’s right to use a cell phone, place the defendant under house arrest or require the defendant to wear an electronic monitoring device. In these cases, if conditions are not reversed a defendant must either accept them or chose to remain in jail until his or her trial.

Most of these conditions regarding bail come with sex crimes. Nearly all defendants who have been charged with committing a sex crime and can post bail are required to wear an electronic monitoring device. While out on bail, defendants are usually prohibited from being within a specified distance from schools, playgrounds and parks. This can be very difficult for defendants who live in large cities, such as Boston, as the distance is often as much as 500 feet. Because of this, once the defendant is released on bail our criminal defense lawyers work to ensure that the defendant is able to work and live in areas that could be a violation of these conditions.