Massachusetts allows conditional guilty pleas.

In criminal cases defendants often bring motions to suppress evidence (exclude evidence from trial) based on arguments that the evidence was seized in violation of defendant's constitutional rights. These motions typically argue that evidence was seized in violation of constitutional rights against unreasonable search and seizure or a confession was obtained in violation of defendant's right against self incrimination. The motion is filed in the trial court before the case goes to trial.

Previously, if the trial judge denied the motion to suppress, the defendant had a very difficult choice: either take the case to trial and preserve the right to appeal this ruling or accept a favorable plea agreement from the District Attorney which means that the defendant pleads guilty and gives up the right to appeal the ruling on the motion to dismiss. The Massachusetts Supreme Judicial Court just changed this by allowing the Defendant to make a conditional plea of guilty.

A conditional plea of guilty allows a defendant to plead guilty to take advantage of an offer of settlement from the District Attorney and still have the right to appeal the trial judge's ruling on the motion to suppress. If the appeals court rules that the evidence should have been suppressed, then the guilty plea will be vacated and the defendant will be able to have his case go to trial or have new discussions with the District Attorney for a different plea agreement. In many cases, without the evidence that can not be introduced the District Attorney may choose to drop the prosecution and dismiss the criminal case.

Allowing conditional guilty pleas is likely to cause more defendants to plead guilty thereby reducing the cost of defending the case for defendants and reducing the number of cases that go to trial. It is expected that the judicial system will save money and resources as well. If you have a criminal case you should consult an experienced criminal defense attorney who can give advice on conditional guilty pleas.

A search of a computer for “communications” includes photographs.

In a recent case in Massachusetts a court ruled that a search warrant issued for a computer (in this case an iPhone) properly included a search for photographs. The search in this case arose out of a shooting on a city street between two men. The police obtained information that the defendant, believed to be one of the two men involved in the shooting, had received threatening telephone calls and texts on his cell phone. As a result, they obtained a search warrant for the cell phone which included “saved and deleted photographs” on the iPhone. The police found incriminating photographs on the cell phone.

The court found that photographs can constitute communications. The defendant admitted this point so the court did not discuss the point. A famous quote says that “apicture is worth a thousand words.” This point is proven every minute as people attach photographs and video to texts and emails. They post pictures and video in social media. Video cameras constantly provide information over the internet. I can't imagine a good faith argument to dispute the fact that photographs are communicative. Once the argument is made that a photograph can constitute communications then it seems inevitable that a search warrant for communications should include photographs.

Many people think that a search of a cell phone occurs by a police officer manually searching the phone to look for texts, emails, photographs, etc. While this can occur, that is not how the police searched in this case. The police used a Universal Forensic Extraction Device (UFED) to access the device and to extract the information. A UFED bypasses the password lockout feature of the cellphone and allows a targeted search of the device. It can search all areas of the physical phone as well as all cloud based accounts accessed by the telephone. As the search is targeted the police didn't receive a copy of all information on the phone and its services but only such data as the UFED found responsive to the targeted search. A properly targeted search prevents the police from browsing the entire phone and obtaining information outside the scope of the search warrant. A UFED search based on permissions granted by a search warrant should be permitted.

Police routinely search cellphones in arrests on serious crimes. There are many restrictions on the ability of police to search phones. If you have been arrested and the police seized your cellphone or computer you should consult a lawyer to analyze the method, scope, and reasons for the search. Failure to act promptly can result in improperly seized evidence used to obtain a conviction.

Massachusetts stores can't impose shoplifting fines without a court order

Judge Douglas Stoddard, a District Court Judge in Natick, Mass. has enjoined Macy's from demanding that shoplifters pay a $500.00 civil fine to Macy's when they are caught by the store.  Massachusetts General Laws Chapter 231, Section 85R-1/2 states that shoplifters ". . . shall be liable in tort to the merchant for damages for not less than fifty nor more than five hundred dollars. . ."  Many stores claim that this law means that a shoplifter owes the store $500.00 if they are caught by the store.  The stores are wrong.  The law means that if the store sues shoplifters in court a judge may award civil damages of up to $500.00.  Macy's has no right to collect $500.00 until after a Judge awarded them damages.

Macy's had a practice of detaining shoplifters and telling them that "if they paid the $500 fine, they would not be civilly sued in court and some said they were told they would not be arrested."  In some cases, people paid the $500.00 and were then turned over to the police who arrested them.  When the cases came before Natick District Court, Judge Stoddard learned of the practices of the store and issued an injunction against the store.The Judge stated “I’m not sure if I have the legal authority to do what I’m doing, but I believe I do have the power to right what’s wrong.  I don’t think I’m asking for much.”

What Macy's was doing was not only wrong, it was criminal.  Massachusetts is a common law state.  This means that crimes exist that were created by English judges before the American Revolution.  Some of these crimes are still in existence.  Macy's actions constituted the common law crimes of compounding a crime and misprision of a crime.  In addition, their actions also constituted the statutory crime of extortion.  

Compounding a crime occurs when a person enters into  an agreement for one person to pay money in exchange for an agreement to not prosecute the crime.  In Massachusetts only the District Attorney or the Attorney General can agree that a crime won't be prosecuted.  Any other person who agrees that a crime won't be prosecuted is committing a criminal act.  If Macy's accepts money and agrees that a shoplifter won't be prosecuted then Macy's has committed the crime of compounding.

If Macy's, having agreed that a crime shall not be reported to the police fails to report the crime then they have committed the crime of misprision of a crime.  Every citizen has the duty to report crimes to the government.  In our society we don't prosecute people who merely fail to report crimes.  However, if a person has received money and then fails to report the crime then they may be prosecuted for misprision.  Compounding is the crime of making the agreement not to prosecute.  Misprision is the act of failing to report the crime.

When Macy's asked for money in exchange for not prosecuting the shoplifter, they committed the crime of extortion.  The elements of extortion are (1) a malicious threat (2) made to a named person (3) to accuse someone of a crime or to injure someone's person or property (4) with intent to extort money. Mass.G.L. c. 265, § 25.  This means that Macy's committed three separate and distinct criminal acts.  When they asked form money the committed extortion.  When they agree to not prosecute they committed compounding of a crime.  If they took the money and then failed to report the shoplifter they committed the crime of misprision.  

When settling a civil case that has the potential for criminal charges, parties want to eliminate the ability to be criminally prosecuted.  This can't be done without violating criminal laws.  When I have encountered this problem in my practice I have agreed to a "gag order" as part of the settlement.  A gag order typically states that neither party can talk about the facts of the case or the settlement without creating civil penalties.  However, I always include language that states that the gag order shall not apply if there is a duty to disclose the information including, but not limited to, disclosure to law enforcement officials.  This exception means that the gag order does not violate any criminal laws.  An attorney who understands the common law crimes should always include language of this nature.  

Macy's practice of demanding a civil penalty without a judgment from a court should cease immediately.  Since the cost of going to court is more than the potential $500.00 recovery this means that it is unlikely that any shoplifters will ever pay the civil penalty.  However, it also means that Macy's will stop violating criminal laws.   

Cyber harassment can be very expensive.

The internet and social media has created new opportunities for people to harass and harm others. One person who used the internet to harass a neighbor found it very expensive as a Massachusetts court has issued a judgment of 4.8 million dollars for cyber harassment and another court found him and his wife guilty of criminal harassment and sentenced them to jail.

Two neighbors, Johnson and Lyons had a real estate dispute about Johnson's plans to build a 4,500 square foot house. Johnson and his wife used the internet to harass Lyons. He placed a false ad on craigslist which falsely stated that he had a deceased son. The craiglist ads were designed to have people respond late at night so that it interfered with the Lyons's sleep. Johnson caused emails and letters to be sent falsely alleging that Lyons had molested his own son and an underage employee. Johnson subscribed Lyons to a number of organizations including organizations for nudists and gays.  Lyons sued Johnson for intentional infliction of emotional distress. After a jury trial, Lyons was awarded $4.8 million dollars in damages. The Johnsons were also prosecuted for criminal charges of harassment. This resulted in convictions for both Johnson and his wife and they were both sentenced to jail terms.

It is safe to assume that not every cyber harassment case will result in multi-million dollar verdicts and jail terms. However, this case shows that existing laws can address criminal behavior that uses new technology. If you are a victim of cyber harassment you should go to the police. You may also find it helpful to consult a Massachusetts attorney to advice you about your rights and how to protect yourself.  

Death and Facebook. The Legacy Feature.

A friend of mine died and his wife posted his death and funeral arrangements on his Facebook page. In this era of social media, Facebook is a natural and expected forum to notify friends and relatives of such information. Unfortunately, use of his Facebook account was unauthorized by Facebook and constituted criminal behaviour under both Massachusetts and Federal law. At the time of his death, his wife had no other way to use his Facebook account to provide notice. Since that time, Facebook has changed its policies and now has a Legacy feature for memorization of Facebook pages after death.

Facebook's Terms of Service states: “You will not share your password let anyone else access your account, or do anything else that might jeopardize the security of your account.” In other words, the only authorized user of a Facebook page is the registered owner. There is no exception for family members after death. Authorization is important because both Massachusetts and Federal law make it a crime for any person who is not an authorized user to access a computer. Since using Facebook means that a user accesses Facebook's computer, any person who is not authorized by Facebook and uses another person's account is committing a crime. Massachusetts General Laws chapter 266, section120F punishes unauthorized computer access by up to thirty days in jail and a one thousand dollar fine. United States Code Title 18Section 1030 punishes unauthorized computer access by up to twenty years in prison and fines. Permission to use a Facebook account by the registered owner of the account is still a crime because Facebook doesn't allow such permission. A widow posting information about her husband's death is unauthorized and a criminal act.

Facebook has recognized people's desires to use Facebook accounts after death and has created a new feature called Legacy. During a person's life, they can designate a person as a “Legacy Contact.” This person will have limited rights to access a Facebook account after a person dies. The Legacy Contact can post a final message and Memorialize the account. Memorialization freezes the account, indicates that the owner died and may allow others to share memories on the account.

Every individual with a Facebook account should consider a legacy contact. This should become part of estate planning and become just as routine as writing a will or making pre-death funeral arrangements. Unauthorized computer access can have serious criminal consequences. A lawyer can help understand how to avoid violating the law and still enjoy social media.

Criminal Law and Double Jeopardy by Michael S. Berg, guest blogger

One commonly misunderstood concept in criminal law is that of double jeopardy. The Fifth Amendment to the United States Constitution states that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." However, this is narrowly read and there are some exceptions, and it applies only to cases where a final decision has been entered.

First, it only applies to the same sovereign, meaning the same government. So the same state cannot put you on trial for the same conduct more than once. However, you can be put on trial by two different states or by a state and the federal government. So, say you're accused of running a scam from your house in Florida over the internet. The government claims that you convinced a woman in Georgia to send you money. Even if you're acquitted in Florida, Georgia can still try you without violating double jeopardy, because it's a separate state. The federal government can also try you for any federal crimes you may have committed at this point. 

Double jeopardy also does not apply when you win an appeal. Appealing is when you ask a higher court to review the procedure or decisions of the court that had your trial. If the appeals court agrees with you, they will send your case back to the trial court with instructions on what they need to change. In this case, the court is allowed to have another trial.

The court is also permitted to retry you if there was a hung jury or if the judge had to declare a mistrial. A hung jury means the jury couldn't come to an agreement. Because there must be a legal decision, the case will be retried with a new jury. A mistrial means something went so wrong that it compromised the entire trial. For example, in some high profile cases the jury is sequestered and not allowed to speak with anyone about the case or access any news or media. If a juror violates this rule, the judge may declare a mistrial. Since the trial wasn't completed, there will generally be a new trial.

This article on Double Jeopardy is a guest post from Michael S. Berg , a San Diego based Certified Specialist in Criminal Law who focuses on criminal cases.