January 20, 2015
Toca v. Louisiana – The US Supreme Court recently granted cert. in Toca v. Louisiana, placing the question of the retroactivity of Miller v Alabama squarely before the Court. 132 S.Ct. 2455 (2012) (holding mandatory sentences of life without parole for persons under age 18 at the time of the crime unconstitutional under the Eighth Amendment). The Juvenile Law Center, with the assistance of Jeff Pokorak (Suffolk University Law School) and Steve Harper (FIU Law School), is drafting an amicus in support of Toca and has asked the Youth Advocacy Division of CPCS to sign on.
The amicus brief will argue that Miller applies retroactively and therefore Mr. Toca and all individuals serving mandatory juvenile life without parole sentences are entitled to resentencing hearings. The brief will build upon the research findings adopted by the Court in Roper, Graham, and Miller that children are constitutionally different than adults for the purpose of sentencing, emphasizing Miller’s new requirement of individualized sentencing for juveniles charged with homicide and facing life without parole. In addition to arguing that Miller is a substantive rule which must be applied retroactively under USSC precedents, we will also highlight the special necessity of individualized sentencing in juvenile felony murder convictions since approximately one-third of all individuals serving juvenile life without parole sentences were convicted of felony murder. Many of these youth were bystanders, had already left the scene of the crime, or were coerced or pressured into participating. The brief will also argue that the constitutional requirement of individualized sentencing in juvenile life without parole cases must apply retroactively to ensure that the court’s now-entrenched doctrinal principle that “kids are different’ remains true for all children.
Commonwealth v. Pavel Lavrinenko –an amicus brief is necessary in this case to further clarify for the Supreme Judicial Court how a decision whether or not to plead guilty is significantly impacted by one’s immigration status, and how a federal finding that an individual has a well-founded fear of persecution if returned to his home country should be a significant factor for a trial court to weigh in determining prejudice in a motion for ineffective assistance of counsel under Padilla v. Kentucky.
February 6, 2015
Commonwealth v. Tyrone Clark – The SJC solicited the following amicus solicitation:
“Whether, as the motion judge ruled, a defendant seeking postconviction scientific testing specifically, DNA testing of physical evidence from his criminal trial pursuant to GL. c. 278A must demonstrate, for purposes of s. 7(b), not only that the evidence exists, but also a reasonable possibility that [the evidence] contains a trace of biological material.”
February 17, 2015
Doe No. 380316 v. SORB – Adult and Juvenile Clients – This case presents an important issue of law with far-reaching consequences for CPCS’ clients. The issue is whether to modify the government’s burden of proof in SORB classification proceedings from the current preponderance of the evidence standard to the stricter clear and convincing evidence standard.
March 18, 2015
Commonwealth v. Louis Costa – The amicus will argue that the mitigating factors of youth establish, in effect, a presumption against imposing consecutive, rather than concurrent, terms for charges arising out of a single incident absent proof that this is the “rare,” “extraordinary” case warranting such extreme punishment.
July 15, 2015
Commonwealth v. Kyle Johnson – The Supreme Judicial Court (SJC) sought input in the case on the following two questions:
(1) In a case involving an eyewitness identification made without the participation of the Commonwealth, whether the principles of Commonwealth v. Jones, 423 Mass. 99 (1996), should be revisited in light of the 2013 report and recommendations of the SJC’s Study Group on Eyewitness Evidence.
(2) For purposes of an in-court identification, whether the court should revisit the independent source doctrine in light of Commonwealth v. Crayton, 470 Mass. 228 (2014), and Commonwealth v. Collins, 470 Mass. 255 (2014).
CPCS clients would benefit from a new rule expanding pretrial hearings on eyewitness identification cases and a rule that would further limit in-court identifications.
July 22, 2015
Montgomery v. Louisiana – The U.S. Supreme Court will be deciding the issue of the retroactivity of Miller v. Alabama in the case of Montgomery v. Louisiana and the parties are currently briefing the issue. The Children and Family Justice Center and the Center on Wrongful Convictions of Youth (both at the Bluhm Legal Clinic at Northwestern University School of Law) have taken on the task of drafting an amicus brief on behalf of organizations and individuals that have a special interest in and focus on juvenile justice, children’s rights, and/or children in conflict with the law. The Blumh Legal Clinic at the Northwestern University School of Law has specifically requested that CPCS sign on to the amicus brief they are submitting in support of Mr. Montgomery. The issue is whether the Louisiana Supreme Court should apply Miller retroactively to juvenile homicide cases.
August 13, 2015
Guardianship of a Minor – Earlier this year, the Supreme Judicial Court held that indigent parents have a right to counsel in guardianship-of-a-minor proceedings under G.L. c. 190B, §§ 5-201 et seq., Guardianship of V.V., 470 Mass. 590 (2015) (“V.V.”) – a decision that was consistent with the position we took in the amicus brief CPCS filed in that case. The V.V. decision, however, did not expressly address the question of whether there is a right to counsel in proceedings to remove guardians, and the Juvenile Court and the Probate and Family Court have split on that question. The Juvenile Court interpreted V.V. to mandate the appointment of counsel for indigent parents in all contested guardianship matters, including proceedings in which parents sought to remove guardians. The Probate and Family Court, on the other hand, interpreted V.V. to apply only to the initial appointment phase of guardianship cases.
The SJC now has before it a case that will allow it to resolve the conflict between the two courts: Guardianship of Blouin Children, SJC-11892 (“Blouin”). Consistent with our previous amicus request, CPCS would submit an amicus curiae brief in Blouin in support of a right to counsel for children and indigent parents in proceedings to remove guardians of minors in the Juvenile Court and the Probate and Family Court.
September 16, 2015
Commonwealth v. Epps and Commonwealth v. Millien
The SJC issued the following amicus solicitations:
- As to Defendant Millien, “[w]hether the defendant, tried and convicted in 2010 on charges of assault and battery on a child causing bodily injury and substantial bodily injury, see G. L. c. 265, s. 13J (b), first and second pars., was denied the effective assistance of counsel where his trial counsel did not consult an expert on shaken baby syndrome; whether the judge erred in denying the defendant’s motion for a new trial, supported by expert testimony challenging the evidence at trial of shaken baby syndrome, where, despite finding subpar performance by counsel in failing to consult an expert, the judge ruled that the same did not deprive the defendant of a substantial ground of defense, given the powerful medical evidence presented by the Commonwealth.”
- As to Defendant Epps, “[w]hether the defendant, tried and convicted in 2007 on a charge of assault and battery on a child causing substantial bodily injury, see G. L. c. 265, s. 13J (b), second par., is entitled to a new trial because of newly discovered evidence (i.e., changes since the time of trial in the state of the scientific research on shaken baby syndrome and abusive head trauma) or on the ground of ineffective assistance of counsel (i.e., counsel’s alleged failure to use to the defendant’s advantage the state of the research as it existed at the time of trial).”
Commonwealth v. Onyx White – The SJC has requested an amicus brief in this matter, asking:
“[W]hether police lawfully searched the contents of the defendant’s cellphone, where the phone was obtained without a warrant from a locked cabinet at the defendant’s high school, where it had been stored pursuant to school policy on the defendant’s behalf; where it was held by the police for approximately ten weeks before they obtained a search warrant; and where during the time it was preserved in a matter that prevented a third party from remotely erasing its content.”
The issue in the amicus request concerns children’s legitimate expectation of privacy in their persons and the items they bring to school.
Commonwealth v. Keith Todd – approval was sought to submit a letter to the Supreme Judicial Court (SJC) in support of the juvenile’s application for Further Appellate Review. A Juvenile Court judge granted the juvenile’s motion to dismiss a youthful offender indictment for rape. The Commonwealth appealed and the Appeals Court reversed the Juvenile Court’s decision. The Appeals Court decision has created an impermissible standard which, if left unchallenged, has the potential to subject a substantially greater number of children to harsher, disproportionate punishment.
September 28, 2015
Commonwealth v. Vargas – The SJC has solicited amicus briefs on the following issue: “Whether the defendant, a probationer who claimed to be a qualifying patient within the meaning of the 2012 act legalizing medical marijuana, see St. 2012, c. 369, with a physician-issued certification, was properly found to be in violation of his probation by virtue of marijuana use.”
A CPCS amicus brief will bring to the SJC’s attention a significant constitutional argument to protect the rights of many clients who are on probation or considering a disposition involving probation.
October 20, 2015
Adoption of Douglas – The Supreme Judicial Court (SJC) accepted Adoption of Douglas on further appellate review. The case involves important questions that relate to post-termination and post-adoption visitation between children and their parents. Post-termination visitations are visitations from the date parental rights are terminated until the date of adoption and post-adoption visitations are visitations after a child is adopted.
Commonwealth v. Mercado – The case presents the last unanswered question in Massachusetts regarding the retroactivity of Padilla v. Kentucky, 130 S. Ct. 1473 (2010). The SJC has accepted direct appellate review to determine whether Padilla retroactivity should be extended back to April 24, 1996. The law currently states Padilla is retroactive in Massachusetts to April 1, 1997.
Commonwealth v. Frank Valdez – The case addresses the prejudice requirement in motions to vacate pleas due to violations of the judicial immigration warning statute. The statute requires a judge, prior to accepting a guilty plea or admission to sufficient facts, to advise a defendant that the plea or admission could have immigration consequences of “deportation, exclusion from admission to the United States, or denial of naturalization.” If the court fails to give the proper warning a defendant is entitled to vacate his/her plea if he/she establishes that the conviction “may have or has had one of the enumerated consequences” about which he/she was not warned. The SJC has interpreted this prejudice requirement to require “more than a hypothetical risk”.
Commonwealth v. Sylvester – The SJC has solicited amicus briefs on the following issue:
“Whether the defendant was deprived of the effective assistance of counsel when he pleaded guilty in 2002 to a charge of indecent assault and battery, where his plea counsel allegedly did not explain to him adequately the consequences that such a plea would have under the sex offender registration and notification act, G.L. c. 6, §178C et seq.; whether, as with immigration consequences, see Padilla v. Kentucky, 559 U.S. 356 (2010), plea attorneys must adequately advise their clients concerning consequences under the sex offender act.”
The amicus brief will address two issues. First, it would describe the extraordinarily harsh impact sex offender registration can have on a person’s life and second, the brief would discuss whether prevailing professional norms require counsel to advise their clients about sex offender registration consequences.
Commonwealth v. Stevenson – The SJC has issued an amicus solicitation as follows:
“Whether the judge erred in finding that the Commonwealth’s use entirely of hearsay evidence (i.e., the investigating police officer’s testimony) to obtain an indictment was, in the circumstances, “pernicious” and constituted the type of “extraordinary circumstance” that required dismissal of the indictment.”
This case raises serious, meritorious questions of public policy for citizens accused of sex crimes. Defendants charged with sex crimes frequently face irreparable damage to their reputation, restrictions on their liberty pretrial, the stress of a public trial, and significant costs to the public. The exclusive use of hearsay insulates the prosecutor’s case from risk, limiting the contradictions and fallibility of memory on the part of witnesses. Most importantly, it subverts the grand jury’s performance of its function.
A.T. v. C.R. – Committee approval was sought to submit a letter in support of an Application for Further Appellate Review (FAR) and if the FAR is approved to submit an amicus brief in the matter.
On October 16, 2015, the Appeals Court upheld a juvenile court order, finding an 11 year-old boy in violation of the new anti-harassment statute, G.L. c. 258E, based on statements he allegedly made to and about an 11 year-old classmate. The Appeals Court decision in this case applies adult standards to the actions of an 11 year-old, ignoring federal and state case law, which has clearly established that child status matters when determining blameworthiness. This case may set important precedent for how children will be treated in hearings going forward.
Commonwealth v. Teixeira and Commonwealth v. Meade – The Supreme Judicial Court (SJC) issued the following amicus solicitation in the two pending cases:
“In a prosecution commenced by complaint in the District Court or Municipal Court for crimes not within the final jurisdiction of the court, as to which the defendant has a right to be proceeded against by indictment, whether the Commonwealth can be ordered, in a judge’s discretion, to provide discovery to the defendant in advance of the probable cause hearing to be held pursuant to G.L. c.276, §38, and Mass. R. Crim. P. 3(f).”
The cases present the question whether a defendant who is awaiting indictment on a charge that is not within the final jurisdiction of the district court may receive discovery in connection with the probable cause hearing to which a defendant is supposed to be entitled under G.L. c.276, §38, and Mass. R. Crim. P. 3(f). The decisions in these cases are likely to have great significance for any defendant charged with a bind-over felony, because they will inform district court judges whether they have the authority to order that discovery be provided to the defendant during the weeks and sometimes months that it takes for the case to be indicted, during which time the case will otherwise languish in the district court. The issue is of particular concern to those defendants being held without bail.
December 15, 2015
Commonwealth v. Francis – The SJC has solicited amicus submissions as follows:
“Whether a defendant is entitled to a new trial on drug distribution and trafficking charges where certificates of drug analysis signed by Annie Dookhan were admitted in evidence at his jury trial, but where the defendant also admitted to police that he sold up to one-half a kilogram of cocaine every week.”
The case presents the issue of what standards courts should apply when considering whether to grant relief to defendants who were convicted of drug offenses at trial where certificates of drug analysis signed by Annie Dookhan were admitted into evidence.
Sauceda v. Lynch – CPCS sought Committee approval to sign on to an amicus brief in support of a petition for rehearing.
CPCS was asked by the Immigrant Defense Project in New York and the Stanford Law School Immigrants’ Rights Clinic to join an amicus brief in support of the rehearing request. In this case, the question presented was whether a conviction for assault under Maine law, similar to the Massachusetts assault statute, barred Mr. Sauceda from a discretionary defense to deportation that is called cancellation of removal. She explained that a noncitizen who is not a lawful permanent resident is ineligible for cancellation of removal if he has a conviction for a crime of domestic violence. The Maine violation was found to be divisible, containing two separate offenses, one of which qualified as a crime of domestic violence and one of which did not. Mr. Sauceda was not able to produce the plea colloquy or other evidence establishing that he was convicted of the non-disqualifying offence.
This petition for rehearing presents an important issue for CPCS noncitizen clients who may be eligible for relief from deportation, but are prevented from establishing such eligibility by the Court’s decision.