criminal defense
1982 Lowell arson conviction may be reconsidered
06.27.10
The Boston Globe did a piece on flaws in an arson
investigation that led to the conviction of N&A INC client
Victor Rosario. An appeal is being filed.
Supreme Court Affirms: Client Michael O'Laughlin Is A Free Man
01.20.10
Yesterday, the U.S. Supreme Court
denied a petition for a writ of certoriari filed by the
Commonwealth, thus letting stand the order by the First Circuit
Court of Appeals freeing client Michael O'Laughlin and affirming
his innocence.
Thus ends Michael's nine year odyssey of imprisonment.
Thus ends Michael's nine year odyssey of imprisonment.
Change Blindness - Why Witnesses Get it Wrong
01.07.10
Fascinating video
regarding people's inability to notice differences in their
surroundings. In this experiment, 75% of the people fail to notice
that a different person is now in front of them. For those who
study wrongful convictions, a growing field of research shows that
eyewitness identification is deeply flawed.
Boston Bar Assoc. Task Force- 3 recommendations for avoiding wrongful convictions
12.24.09
A BBA task force noted that for every
defendant wrongly convicted, a criminal goes free. The report makes
three key recommendations:
(1) Enactment of a Massachusetts statute to guarantee post conviction access to DNA testing and to require preservation of biologic forensic evidence. (Massachusetts is one of only 4 states that does not have such a statute).
(2) Expanding the membership and function of the Forensic Science Advisory Board to include scientists and lawyers who are not prosecutors. (The report cites a 2008 study by the National Academy of Sciences raising serious questions about the scientific foundation of significant portions of forensic evidence admitted in courts.)
(3) Videotaping confessions. (Based on a 2004 decision of the Supreme Judicial Court most police departments are now recording confessions of suspects. The number of departments who are doing videotapes rather than just audiotapes is still in the minority. Experience of those departments who are videotaping demonstrates that the evidence obtained is more effective because there is absolutely no doubt about what is happening during the witness interview.
Bit surprised that they did not recommend further reform of prosecutor's ability to buy testimony in the form of not prosecuting snitch witnesses for certain crimes--a major problem in numerous cases we have worked on over the years. The notion of sending a check for $70,000 to a witness in exchange for their cooperation seems obviously wrong. But the notion of giving someone 8 years of their life back by not prosecuting them (and what value do you put on a year in prison?--$70,00 per year? more?)--that tactic will continue unabated. Although a jury can weigh evidence of such side deals, the fact is that many inducements given by the government to snitch witnesses are not documented at all.
(1) Enactment of a Massachusetts statute to guarantee post conviction access to DNA testing and to require preservation of biologic forensic evidence. (Massachusetts is one of only 4 states that does not have such a statute).
(2) Expanding the membership and function of the Forensic Science Advisory Board to include scientists and lawyers who are not prosecutors. (The report cites a 2008 study by the National Academy of Sciences raising serious questions about the scientific foundation of significant portions of forensic evidence admitted in courts.)
(3) Videotaping confessions. (Based on a 2004 decision of the Supreme Judicial Court most police departments are now recording confessions of suspects. The number of departments who are doing videotapes rather than just audiotapes is still in the minority. Experience of those departments who are videotaping demonstrates that the evidence obtained is more effective because there is absolutely no doubt about what is happening during the witness interview.
Bit surprised that they did not recommend further reform of prosecutor's ability to buy testimony in the form of not prosecuting snitch witnesses for certain crimes--a major problem in numerous cases we have worked on over the years. The notion of sending a check for $70,000 to a witness in exchange for their cooperation seems obviously wrong. But the notion of giving someone 8 years of their life back by not prosecuting them (and what value do you put on a year in prison?--$70,00 per year? more?)--that tactic will continue unabated. Although a jury can weigh evidence of such side deals, the fact is that many inducements given by the government to snitch witnesses are not documented at all.
Your lawyer: trial lawyer or settlement artist?
12.02.09
One of the little truths that come to
light as you go along in this business is that some lawyers never
learn how to take a case to trial. I once sat in a meeting in
California with a group of lawyers on joint defense case. Several
big names; several big egos (the lawyers, not me). As we began, one
lawyer, whose website bragged about extensive experience litigating
major civil and white collar criminal cases, looked uncomfortable
as the discussion proceeded --which witnesses were being contacted,
what impeachment material was developing, etc. It became clear that
this lawyer had done little pretrial investigation. He rarely
did--the concept of a PI systematically interviewing witnesses was
new to him. Rather stunning. The guy was all hat, no cattle.
Clients don't just want an attorney with a law degree; they deserve a intelligent street fighter, a trial lawyer who aggressively develops the facts of a case. Ask your lawyer what he does before trial. Those tasks have more to do with winning than his courtroom maneuvering.
Clients don't just want an attorney with a law degree; they deserve a intelligent street fighter, a trial lawyer who aggressively develops the facts of a case. Ask your lawyer what he does before trial. Those tasks have more to do with winning than his courtroom maneuvering.
Yeager case defines limits on white collar prosecutions
06.19.09
Interesting discussion of the
USA v. Yeager case which defines the limits
on the governement trying to repackage facts and charge defendants
under different statutes after a jury already decided the conduct
was not illegal.
Court of Appeals Reverses Conviction of client Michael O'Laughlin
06.11.09
In a rare decision upholding a lower
court decision overturning a jury verdict, the 1st Circuit Court of
Appeals overturned the Massachusetts Supreme Judicial Court [SJC]
in the murder case of client Michael O'Laughlin. Citing the "the
extremely high bar " in such instances, the court found in part:
"Taken together, the circumstantial evidence in this case, even
when drawing all reasonable inferences in favor of the prosecution,
does not permit any rational jury to conclude that O'Laughlin was
the assailant beyond a reasonable doubt." The opinion is notable
for its thorough parsing--and ultimate rejection-- of the
consciousness of guilt evidence cited by the SJC.
The court summed up the case as follows:
"A Massachusetts Superior Court jury had convicted O'Laughlin of the following counts: (1) burglary and armed assault in a dwelling; (2) armed assault in a dwelling; (3) armed assault with intent to murder; and(4) assault and battery by means of a dangerous weapon. The Superior Court then sentenced O'Laughlin to 35-50 years on Counts One and Two; 19-20 years on Count 3; and 9-10 years on Count 4, ruling that the sentences were to be served concurrently.
The intermediate Massachusetts Appeals Court reversed the judgments holding that there was insufficient evidence to support the verdicts. Commonwealth v. O'Laughlin, 830 N.E.2d 222 (Mass. App. Ct. 2005) (hereinafter "O'Laughlin I"). The Massachusetts Supreme Judicial Court ("SJC") reinstated the judgment reasoning that there was sufficient evidence to support the verdicts. Commonwealth v. O'Laughlin, 843 N.E.2d 617 (Mass. 2006) (hereinafter "O'Laughlin II").
O'Laughlin filed a petition for a writ of habeas corpus in the United States District Court for the District of Massachusetts on grounds that (1) the SJC's (which had ruled that was objectively unreasonable because there was insufficient evidence to support a guilty verdict and (2) that the SJC violated his constitutional right to present a defense. The district court denied O'Laughlin's petition for habeas relief.
After careful consideration, we reverse the judgment of the district court and order the district court to grant the petition. "
A full factual recounting of the case is found here. Michael remains in prison pending a state appeal for an en banc hearing by a full panel of 1st Circuit judges.
The court summed up the case as follows:
"A Massachusetts Superior Court jury had convicted O'Laughlin of the following counts: (1) burglary and armed assault in a dwelling; (2) armed assault in a dwelling; (3) armed assault with intent to murder; and(4) assault and battery by means of a dangerous weapon. The Superior Court then sentenced O'Laughlin to 35-50 years on Counts One and Two; 19-20 years on Count 3; and 9-10 years on Count 4, ruling that the sentences were to be served concurrently.
The intermediate Massachusetts Appeals Court reversed the judgments holding that there was insufficient evidence to support the verdicts. Commonwealth v. O'Laughlin, 830 N.E.2d 222 (Mass. App. Ct. 2005) (hereinafter "O'Laughlin I"). The Massachusetts Supreme Judicial Court ("SJC") reinstated the judgment reasoning that there was sufficient evidence to support the verdicts. Commonwealth v. O'Laughlin, 843 N.E.2d 617 (Mass. 2006) (hereinafter "O'Laughlin II").
O'Laughlin filed a petition for a writ of habeas corpus in the United States District Court for the District of Massachusetts on grounds that (1) the SJC's (which had ruled that was objectively unreasonable because there was insufficient evidence to support a guilty verdict and (2) that the SJC violated his constitutional right to present a defense. The district court denied O'Laughlin's petition for habeas relief.
After careful consideration, we reverse the judgment of the district court and order the district court to grant the petition. "
A full factual recounting of the case is found here. Michael remains in prison pending a state appeal for an en banc hearing by a full panel of 1st Circuit judges.
Investigator arrested without cause by Harvard police
06.01.09
On Saturday afternoon, May 30, 2009,
Harvard University police arrested without cause one of our
investigators, Joseph Cadillic, who was assisting the Simmons
Agency and MIT Crime Club with research on the murder of Justin
Cosby.
After identifying himself to a student, providing a business card, and his purpose for visiting, Mr. Cadillic requested permission to view the area of the shooting. Harvard police, instead of making a reasonable inquiry into how he came on campus, then arrested Mr. Cadillic and his wife Elissa (who was present but is not employed as an investigator).
Why does a university whose motto, Veritas, means truth, have a long history of dubious interpretations of law when it comes to witness access, due process, and free speech? This is especially true when events highlight certain unpleasant truths about drug use and violent crime at Harvard.
We look forward to all criminal charges against Mr. Cadillic being dismissed. We continue to seek information about Justin Cosby's murder on campus and encourage any information to be sent to us.
After identifying himself to a student, providing a business card, and his purpose for visiting, Mr. Cadillic requested permission to view the area of the shooting. Harvard police, instead of making a reasonable inquiry into how he came on campus, then arrested Mr. Cadillic and his wife Elissa (who was present but is not employed as an investigator).
Why does a university whose motto, Veritas, means truth, have a long history of dubious interpretations of law when it comes to witness access, due process, and free speech? This is especially true when events highlight certain unpleasant truths about drug use and violent crime at Harvard.
We look forward to all criminal charges against Mr. Cadillic being dismissed. We continue to seek information about Justin Cosby's murder on campus and encourage any information to be sent to us.
Senator Stevens' conviction overturned
04.08.09
Boston Globe reports a federal judge tossed out the
conviction of former US senator Ted Stevens after the Justice
Department admitted its prosecutors mishandled evidence in the
corruption case. Two prosecutors did not turn over notes from an
interview in April 2008 with the case's key witness--notes that
contained exculpatory evidence. Veteran defense investigators know
this is a not uncommon phenomenon: several agents
from different agencies sit in on one interview, and their notes
differ vastly from the "official report" that is eventually turned
over to the defense. Always good practice to identify everyone at
the meeting, and review notes from everyone present.
Prosecutors who handled the trial have been removed from the case and their conduct is under investigation.
Prosecutors who handled the trial have been removed from the case and their conduct is under investigation.
Death of weapons frisk greatly exaggerated after MA high court ruling
04.06.09
News reports are exaggerating the
impact of a new Supreme Judicial Court ruling in Massachusetts on a
police officer's right to stop and frisk suspects for weapons. This
right was established in 1968 in the Supreme Court case Terry v.
Ohio. In Commonwealth v. Paul Gomes, the SJC held that conducting a
pat frisk of a suspect solely on a general concern that he was in a
high crime area violates the Fourth Amendment prohibition on
unreasonable searches and seizures. Key line in the SJC case : "
Officer Walsh gave no testimony that the police observed anything
suggesting that the defendant had a weapon." Coupled with no
weapons priors for Gomes, the search was found to be
unreasonable.
No new law here. Just a reminder that, if no requirement existed for specific suspicions about a suspect, residents in high-crime areas could be pat frisked while simply walking in their neighborhood.
No new law here. Just a reminder that, if no requirement existed for specific suspicions about a suspect, residents in high-crime areas could be pat frisked while simply walking in their neighborhood.