Denise Casper has begun holding hearings in the trial of Whitey Bulger, Boston’s high profile mobster and former FBI informant. Out of the gate, the new judge has made efforts to show just how little has changed in the outlook of the trial. Still expected to start in June, still expected to last throughout the entire summer, Casper tried to portray her first day of hearings as a smooth transition in a case that is otherwise long underway.

No matter the pretense, two questions still remain in front of the new judge that may have serious implications in the trial’s development. First, can Bulger introduce, as evidence in trial, the immunity offer he claims to have received from federal prosecutors? Second, can Bulger’s defense team turn over the name of an informant the prosecution intends to introduce as a witness?

The immunity question looms large in the prosecution of Bulger, who is charged with the murder of 19 people. Bulger’s defense claim an oral agreement for immunity was reached between Bulger and Jeremiah O’Sullivan of the Department of Justice. Bulger’s attorney, J.W. Carney Jr., has said it is “very common” for immunity agreements to be reached without written documentation.

Rather than seek to stipulate the arrangement, Bulger’s defense simply wants the chance to present the evidence during the protracted trial.

The informant, too, goes to the very heart of the charges. A long-time Bulger associate, Kevin Weeks, is expected to be a key witness in the prosecution’s case. It is anticipated that his testimony will be essential in proving that a winning 1991 lottery ticket, worth upwards of $14.3 million, was in fact a money laundering scheme concocted by Bulger.

The defense believes the informant in question may discredit Weeks’ testimony in a number of ways. He may be used for impeachment purposes, challenging the truthfulness of Weeks’ testimony. Alternatively, the informant may simply contradict any evidence presented by Weeks portraying the lottery ticket as mob-orchestrated activity.

Of course, the implication of such contradictory testimony is likely to receive pushback. There was no word in today’s status conference on whether prosecutors will in fact turn over the name of the informant. The question may ultimately rest on one of law, obviating the protection of the informant’s identity as a means to enhance Weeks’ credibility.

It should not come as a surprise that Casper set off to quickly set a tone of stability and continuation for the trial. Last week, the 1st Circuit U.S. Court of Appeals ruled that District Judge Richard Stearns must step down from the Bulger case due to questions of impartiality. Stearns was a prosecutor for the U.S. Attorney’s office in Boston in the 1980s. During the period, Bulger served as an FBI informant while allegedly engaging in mob activities, including ones for which he is currently being charged. The priority nature of the Bulger case, and the potential for vast involvement from U.S. Attorneys during that time frame, were deciding factors in the appointment of a new judge.

Indeed, Stearn’s close ties to U.S. Attorneys could have easily affected his ruling denying the introduction of Bulger’s evidence that he was offered – and accepted – federal immunity. A judge further removed from what was certain to be ongoing and ever-changing negotiations with Bulger during his time as an informant can be expected to rule with a greater eye on impartiality when it comes to the immunity question.

As such, today’s development should not come as particularly burdensome to the defense. The trial, slated to begin June 6, had long been in the works, and the opportunity to re-introduce partially exonerating evidence is a new resource to work with in a case that is sure to encounter one or two more twists and turns.

The post Two Issues Stand In Front of New Judge in Bulger Case appeared first on Mass DUI Lawyer Russell Matson.

The Boston Globe initiated an investigation into OUI cases where defendants waived their rights to a jury trial, electing to have their case heard before a judge (bench trial) instead, and specifically how these cases seemed to result in a positive outcome for the defendants more often than those heard before a jury. It was as a result of the Globe’s investigation that the Justices of the Supreme Judicial Court of Massachusetts ordered their own investigation into the matter, to be completed by R.J. Cinquegrana with the firm of Choat, Hall & Stewart LLO, acting as a special counsel.

The Mass. Supreme Court released Cinquegrana’s report, which did provide some interesting insight into the treatment of OUI cases across the state, but concluded with recommendations that are simply misguided in the face of civil liberties and constitutional rights.

The report found that 77% of OUI cases in the state resulted in a “disposition that was adverse to the defendant.” This includes guilty verdicts from a judge or jury as well as guilty pleas. This is within the range of average when compared with other states across the country. However, the acquittal rates varied widely when comparing jury trials to bench trials.

“Of those defendants who proceeded to a trial by jury, fifty-eight per cent were acquitted. Of those who proceeded to a bench trial, eighty-six per cent were acquitted.”

There are numerous reasons why this disparity could exist, and many possibilities are offered in the report. Often, however, a judge’s legal expertise means they will make a decision based on the legal facts of the case, whereas a jury of peers– even with proper legal instruction– are less likely to apply the law in a completely objective and strictly legal manner.

It’s the recommendations of the report, not necessarily the findings, that raise the most questions.

One of the more troubling recommendations is that the state should consider changing the laws in regards to jury waivers in OUI cases. This means, they would like to make it more difficult for OUI subjects to get a bench trial. This, they say, can prevent “judge shopping”, though no evidence of this claim is established. It is about an alleged appearance of impropriety.

Another troubling recommendation: that the license suspension that occurs immediately when someone refuses a breath test should not be reversed when the OUI charge results in a finding of guilt. This means that if you are pulled over for OUI, refuse a breath test, have your license suspended as a result (as the current law requires), and then later are found to have not been drunk driving at all—your license should remain suspended for the remainder of the term. If this isn’t turning justice on its head, I don’t know what is.

Massachusetts drunk driving laws are nothing to take lightly. If you are arrested for OUI, the chances of you going to jail are certainly real. It’s in a situation like this that you need an advocate to defend you in the Commonwealth’s legal system, which clearly does not have your rights as a priority. Contact me today to discuss your case and how I might be able to help.

The post Special Report on OUI Acquittals Makes Bold, Flawed Recommendations appeared first on Mass DUI Lawyer Russell Matson.

There is really no way to overstate how huge the Massachusetts drug lab scandal is. It will have repercussions on criminal defense cases here and nationwide for years.

Former state chemist Annie Dookhan is being arraigned on criminal charges related to tampering with states evidence in literally thousands of criminal cases.

Just look at the numbers of the cases impacted:

• 1100 inmates currently incarcerated
• 60,000 drug samples
• 34,000 criminal cases

The local fallout is huge, including:

• More that 20 defendants released or given a reduced sentence, with many more to come
• The head of State Public Health Commissioner resigned, and two other lab officials were fired.
• More than $1 million requested from the Commonwealth by the Suffolk county DA’s offices to assess the damage.

It will shift the dynamic in courtrooms concerning the bedrock belief that the evidence guys are masters at their craft, i.e. the “CSI” effect. And rightly so.

Prosecutors who accuse defense attorneys of going on a “fishing expedition” when asking the court for more documentation about evidence analysis details and specifics will be told to “suck it”. And rightly so.

Though this impact may be unprecedented, it’s certainly not the first time that state crime lab data has been called into serious question.  It’s happened in Minnesota and Indiana, among other places.

But it is truly an amazing and disturbing story.

—

Read more here.

Via the Globe, and other sources.

Boston News, Weather, Sports | FOX 25 | MyFoxBoston

The post Gentlemen, Start Your Motions appeared first on Mass DUI Lawyer Russell Matson.

There is yet another article in the news, this week in the Salem News, that claims Massachusetts DUI laws are too soft, just because someone with a number of previous offenses gets arrested, and has a legal driver’s license. 

According to the article, James P. Fitzgerald had 4 previous OUI convictions, from 1984, 1989, 1992, and 1999. It did not outline what penalties he may have served from those convictions, the most recent of which was 13 years ago.

We do know that a 4th offense conviction results in a 10 year loss of drivers license, and a mandatory minimum of  a year in jail.  However, it is very possible he as never charged with a 4th offense the last time he was convicted. The Lifetime Lookback law wasn’t enacted until 2002, so his previous conviction may have been treated as a 2nd or third.

The fact is that our drunk driving laws have evolved considerably since this man was last charged and convicted over a decade ago. So it is simply not fair to claim that the current laws are not tough enough.

The article also discussed whether he should be released before his trial, which is the option of a judge at a dangerousness hearing.  Being held in jail, for 6 months or more before a trial clearly is a serious hardship for this man and his family. But ultimately it is up to a judge to weigh the risk to the public at large of this man, who despite what appears to be a past history with alcohol problems, hasn’t been in trouble in 12 years, and had a perfectly legitimate and valid driver’s license.

And we previously discussed the odd claim of outrage about the number of people with 5 or more convictions who still have valid drivers licenses in Massachusetts. It’s a non-story that the lifeltime lookback law has changed, and there will never in the future be any more people added to the list of those with 5 convictions and a valid license. It just isn’t possible anymore, despite the fact that these 1000 or so people are grandfathered in, and have been driving without incidence for over a decade.

Ultimately, if Mr. Fitzgerald is convicted, he will very likely face jail time and a lifetime license suspension if all of his alleged prior convictions can be proven.

So, we would dispute that there is any evidence from this case that the laws need to be reformed. The current laws are plenty tough to deal with this case.

The post Mass DUI Laws Are Not Lax appeared first on Mass DUI Lawyer Russell Matson.

The Globe and the Patch each report on additional police patrols on Rt 24 and 195 in Southeast Mass, after a number of recent crashes and traffic deaths said to be alcohol related.

This past weekend included 9 DUI arrests and 222 other traffic citations in that area. These “surge” weekends will continue through September, with 11 additional officers on the road between 10pm and 4am on Friday and Saturday evenings.

There is no particular explanation as to why this road might be more dangerous or what might be causing this increased serious incidents, but the police are responding seriously.

Anyone driving on route 24 may want to use extra caution.

The post Extra DUI Patrols on Route 24 Will Continue appeared first on Mass DUI Lawyer Russell Matson.

Update: The 1st offense IID legislation appears dead for this session, at least!

—

The Patriot Ledger ran another editorial suggesting that requiring an ignition interlock device after a first offense OUI conviction in Massachusetts would be a good idea. We disagree.

Ignition Interlock Device

According to the Ledger op/ed written by a police sergeant in Hingham, a couple of arrests for tampering with an interlock devices suggests that the law is working, and should be expanded to include all convictions instead of just in cases of a 2nd offense. It is a separate crime to attempt to disable or tamper with a required IID.

An ignition interlock device is essentially a breathalyzer installed in your car. Your car ignition will not start if you register any alcohol in your system. IIDs are usually set to trigger at .02% BAC, or one drink, well below the actual legal limit of .08% standard for alcohol impairment.

Current Massachusetts law currently requires use of an ignition interlock for 2 years as a condition of license reinstatement after a 2nd offense OUI conviction.

The proposed law would add a 6 month IID requirement for any first offense OUI.

What Is The Problem With a First Offense IID Law?

While this requirement may not seem like a major inconvenience for most people, the primary question is, is it necessary?

Particularly for people who need to drive company vehicles for work, a restricted IID license essentially means they lose their job, which is obviously a huge and unnecessary hardship for a single incident.

The fact is that the overwhelming majority of people convicted of drunk driving never get in trouble with the law again. People make dumb mistakes, and are occasionally careless with alcohol consumption and make bad decisions. But most people who are busted for a DUI are horrified and embarrassed by what happened to them, and are extraordinarily careful for the rest of their lives.

Of course, this is not everyone. Some people continue to exercise poor judgement, and there are also a significant number of people who have real problems with alcohol addition. When someone is convicted of drunk driving for a second time, there is a real likelihood that the person has a problem that is beyond their control. So the IID law actually makes real sense for these people.

If this law were to pass, you are also very likely to see a lot more 1st offense cases to go trial. Many people accept a Continuance without a finding (CWOF) simply to get back on the road right away, since they know they will never have another problem like this. We see this all the time, people with winnable cases and weak facts against them that don’t fight it because of the inconvenience.

But with the IID in the equation, if such a requirement means they can’t work, then it makes sense to fight the case and try to avoid that outcome.

Currently 15 states have moved to a 1st offense IID requirement, including Virginia as of July 1.

It’s simply not clear that it is necessary for public safety, and it a real burden for many average citizens who’ve made a one time mistake.

The post Ignition Interlock Devices for a First Offense? appeared first on Mass DUI Lawyer Russell Matson.

The Boston Herald has a splashy story about how nearly 1000 people in Massachusetts have legal driver’s licenses right now, yet have been convicted of 5 or more DUI charges. Outrageous!

Except, what it actually means is that these individuals have been on the road, driving legally, and have not been convicted of any drunk driving charge in 10 years. 

This is simply not a huge public safety menace as is being implied in the news story. While there are statistics that suggest that some people with alcohol addiction problems certainly do continue to drink and drive, there are also plenty of statistics that say people who do not get in trouble with the law after 5 or 10 years are very unlikely to re-offend.

And even if this was a scandalous situation as suggested, the laws have already been changed. Drunk driving laws in Massachusetts and nationwide are exponentially tougher now then they were in the 70s, 80s, and 90s, when most of these drivers actually were convicted.

Under current law, if any of these driver’s is arrested, they will be in very serious trouble. Just refusing the breath test with 5 prior convictions means the person’s license will be revoked permanently. And such a person will likely face a dangerousness hearing, and at risk for prison for felony DUI.

How Can You Have a Driver’s License after a 5th Offense DUI if the Penalty is a Lifetime Suspension?

That is a valid question. It is true that the penalty for a 5th offense DUI in Massachusetts is a mandatory minimum penalty of 2 years in prison and a lifetime license revocation. It is a serious felony offense, and treated as such.

Before 2002, the lookback period for prior drunk driving offenses was 10 years, and anything older than that didn’t count. So the reality is, many, if not most of these prior convictions are many decades old.

The Registry is correct that the number of people with 5 OUI convictions and a valid driver’s license can never get any larger. It is impossible to have 5 or more convictions and have a valid driver’s license now that the lifetime lookback is in effect. These 1000 people will eventually die off, and yes, some may be charged and convicted of drunk driving again, and lose their driver’s licenses forever, as well as spend a couple of years as guests of the Commonwealth.

There is literally no need to add tougher drunk driving laws to address this problem. Senator Hedlund and others are interested in using stories like this to increase support for mandatory ignition interlock devices for any OUI conviction, but besides being a bad idea, and a burden on the vast majority of people who get a single DUI charge and never get in trouble again, it would have literally no effect on the alleged “problem” exposed in this sensationalist story.

The post Boston Herald Panics That People Have Been Driving Without Incident appeared first on Mass DUI Lawyer Russell Matson.

The most recent Massachusetts state budget included a provision to close the so-called loophole with regard to license suspension durations in cases where a prior DUI offense was treated as a CWOF.

The Globe reports that Governor Patrick signed the bill into law on July 8th.

As we commented before, the loophole was actually a reasonable interpretation of how the statute was originally written in Melanie’s law. After the fact, the Registry took the harshest possible interpretation with regard to license restoration and license suspension duration after a refusal on a second offense DUI, and the “tough on crime” and anti-DUI lobby decided that this was correct.

After years in the courts, the Massachusetts Supreme Judicial court came to the reasonable conclusion that the law seemed to be clear enough, and if the legislature intended for a Continuation without a finding to be treated as a conviction in this situation, they would have said so in the law.

And it wasn’t even close, the courts decision was unanimous (Souza v. Registrar)

Some loophole.

In any case, the legislature has now clarified the statute to be exactly what the harshest interpretation could be, and it is now the law of the Commonwealth.

It is possible that license suspensions issued by the registry before 7/9/12 may still be eligible for reduction, depending how the Registry is willing to interpret this but that window is now closed going forward.

The post So Called “Loophole” Closed appeared first on Mass DUI Lawyer Russell Matson.

Via the blog of State Senator Bruce Tarr, one of the many amendments to this year’s state budget being debated is to close the so-called loophole created by the SJCs Souza v. Registrar of Motor Vehicles decision.

We are not political prognosticators, but it seems like there is more than a reasonable chance that this amendment passes. So anyone who has a claim to get their license suspension reduced under the Sousa decision needs to act quickly, since by July it is quite likely this window will have passed.

Find out if you are eligible for a suspension reduction by reviewing our fact sheet on the case. The facts are not obvious or intuitive, such as the situation that it only applies to those who refused the breath test on their second offense OUI (or third), since it is the breath test refusal suspension period that was challenged.

Is Souza v RMV Really a Loophole?

It is convenient for politicians and drunk driving law advocates to say so after the fact, but it is absolutely not obvious that this was the intent, as explicitly stated by the Court. From the SJC decision conclusion:

For the reasons stated, we conclude that the Legislature did not intend an admission to sufficient facts to be treated as a conviction pursuant to G.L. c. 90.

Most likely, when Melanie’s Law passed in 2005 the implications were probably not fully understood or considered at the time. The Registry drew their own conclusion, and no one ever complains when you over-sentence, except those convicted. It is easy for the legislators and prosecutors to say now that the harshest possible interpretation was always what they intended.

No matter. It appears likely that the situation will be clarified soon in the new budget resolution.

The post Shutting Down the Registry CWOF “Loophole” on the Agenda for the State Senate appeared first on Mass DUI Lawyer Russell Matson.

The Registry has reduced license suspension penalties in some cases in light of the recent Court decision, and deferred decisions in other cases.

What exactly you can expect if you go to the Registry to get a 2nd offense license suspension reduced is simply not assured. We are as on top of this as we can be, but the unfortunately answer is that no one has the definitive answers.

Here are the facts on the situation as we know them right now, who is eligible, and who is not.

The situation is still absolutely in flux, and different RMV Hearings Officer’s may be interpreting the ruling differently. But if you are right now in the suspension period from a second (or third) offense, received a CWOF on a prior offense, and refused the breath test on the most recent charge, there is a good chance that your suspension can be reduced.

For example, if you are serving a 3 year license suspension, but under the recent ruling, it should only have been 6 months, you should be able to have that time reduced, or eliminated if you have already served the 6 months.

Can An An Interlock Interlock Requirement Be Reduced?

We believe the answer is still no. The Registry considers the ignition interlock requirement to go into effect after your license eligibility has been fully restored. This means if you get your license restored immediately, the 2 year interlock clock starts ticking now.

Or, if you served the full license suspension, and are now in the middle of your interlock requirement, you can’t retroactively get credit for what should have been the reduced suspension period and end your interlock early.

Probably.

However, it is possible that this decision could be changed, or successfully appeared at a Registry Appeals hearing. But as of now, Registry hearings officers aren’t reducing IID requirements.

And if this is an option, the Registry Appeals are going to have to happen quickly, just in case the law changes, making the decisions moot.

Could the law change and make this ruling irrelevant?

It could. There is an effort in the State Legislature that they hope to change this, making the old way the Registry issued suspensions as part of the annual budget legislation on or about 7/1.

The post Registry License Decisions Still Evolving In Light of Souza Decision appeared first on Mass DUI Lawyer Russell Matson.