Putting the “Right to Remain Silent” Back on Its Feet

Here’s a question: who must demonstrate that a defendant did or did not invoke his right to remain silent, the defendant or the police?  For decades, the answer was the police.  On January 13, 2012, the Supreme Judicial Court of Massachusetts (“SJC”), re-established that norm of police interrogations.  So, what happened?  Why did the SJC need to re-establish this norm with a ruling?  The answer is Berghuis.

 In 2010, the Supreme Court of the United States (“SCOTUS”) decided Berghuis v. Thompkins. The question in Berghuis was when does a defendant invoke his right to remain silent during an interrogation if he does not specifically invoke the right?  Before we can delve into Berghuis,  a little history must be discussed.  Most people understand that the right to remain silent is known as the Miranda warning, which is given a defendant around the time he is arrested.  The right is derived from the Fifth Amendment to the U.S. Constitution, the right against self-incrimination, which was clarified in Miranda v. ArizonaSCOTUS in Miranda was concerned about coercive interrogation techniques conducted by the police.  Thus, SCOTUS required a warning be given and that the state bear the burden of proving that the right to remain silent was waived, before the defendant’s statements could be used against him.  During the intervening years, many cases have come forward trying to nail down when, how and if a defendant has waived his right to remain silent.  Berghuis was another in that series, with a different set of facts.

In January of 2010, Van Chester Thompkins was interrogated as the suspect in a murder.  Thompkins was interrogated for three hours.  During that time, Thompkins did not directly answer any questions.  In fact, he was almost completely silent for that time.  He did not state a wish to remain silent, or talk to an attorney or even a wish to stop the interrogation.  After the three hours, the police changed tactics.  The police asked Thompkins if he was spiritual.  The police then asked Thompkins if he prayed to God.  The police then asked Thompkins if he would pray to God for forgiveness because he killed a man.  Thompkins’ answer to these questions was “yes.”  These answers were used at Thompkins trial, where he was convicted.  Upon appeal to SCOTUS, the Court held that the right to remain silent will be waived unless the suspect states he is invoking the right.  Too many, this ruling turned Miranda on its ear by placing the burden upon the defendant to demonstrate that he invoked his right.  Justice Sotomayor stated in her dissent that this case is “a substantial retreat from the protection against compelled self-incrimination that Miranda v. Arizona has long provided during custodial interrogation.”   This creates an interesting situation where a suspect must state “I wish to invoke my right to remain silent” in order to remain silent. In steps Commonwealth v. Clarke.

 In Clarke, there is no lengthy interrogation.  The facts in Clarke are much simpler.  Before the interrogation began, the police asked Clarke if he wanted to speak.  Clarke responded by shaking his head.  The police interrogated him anyways, and used his statements against him at trial.  The SJC held that there does not need to be a clear invocation of the right to remain silent, under Article 12 of the Massachusetts Constitution.  The SJC stated that Article 12 of the Massachusetts Constitution provided greater protection than the Fifth Amendment of the U.S. Constitution.  Thus, Massachusetts was not required to follow the ruling of Berghuis.  The SJC also stated that in cases where there is ambiguity as to whether or not the suspect has invoked a right, “there can be no dispute that it is good police practice for them to stop questioning on any other subject and ask the suspect to make his choice clear.”  Therefore, the burden is once again placed upon the police to demonstrate that there was a clear waiver of the right to remain silent before a suspect’s statements can be used at trial.  Well, at least in Massachusetts.      


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Bad Laws: How Good Intentions Can Cause Harm

People want their families to feel safe from the dangers of the world.  It is this feeling that forms the foundation of our legal system.  All types of laws are drafted with this safety in mind.  There are ordinances to make sure buildings are safe.  There are traffic laws to insure that we drive in a safe manner.  There are a many laws to govern how we treat one another.  These include laws that punish those who harm members of the society, such as rape and murder.  These laws are known as malum in se.  Of course, there are also laws that punish regardless of intent, like speeding or most forms of illegal possession.  These laws are known as malum prohibitum.  If you haven’t noticed, there is a theme going on here.  The theme is intent, either on the part of the wrong-doer or the legislature.  Punishing the evil intent of a potential criminal is pretty straight forward as well as supported by the society at large.  The trick part is when the legislature’s intent is to punish regardless of the actor, deeming the act itself illegal.  I’m sure you have a question, like where is this going.  The next step in our discussion is here.

A woman, who is a fourth year medical student and from Tennessee, visits the 9/11 memorial while on a job interview in New York.  The woman, who had no criminal record and is licensed to carry a handgun in Tennessee, spots a sign at the memorial that states no weapons are allowed.  Being the law-abiding citizen that she is, the woman then locates a security guard to have her gun checked before she enters the memorial. The guard escorts her to a police officer who promptly arrests her for carrying an illegal firearm.  It’s illegal since the woman did not have a license to carry a handgun in New York as firearm licenses are not reciprocal between states like driving licenses are.  The district attorney in the case is seeking the minimum sentence for felony gun possession, which is three and a half years.

Now for the fun, what intent is being punished in this scenario?  The woman does not seem to possess the “evil-doer” intent as she was trying to obey the laws.  (Of course, unbeknownst to her, to be in compliance with New York law, obeying the law would have meant leaving her gun at home.)  The usual intent of the legislature in illegal handgun cases it to be tough on crime and add extra sentences to those guilty criminals who use or possess guns.  Thus, a drug dealer arrested with an illegal gun would face an extra three and a half years on top of his conviction for drug dealing.  The laws are written this way so that any judge sentencing a criminal cannot use his/her discretion and lower the sentence.  The problem with these types of laws is when people whom the law is not designed to target get arrested, such as the average person.  Legislators in this case are even asking the district attorney to not seek the minimum punishment.  This is an interesting situation, as legislators are asking a government agency to not enforce a law that the legislature wrote.

Now, there is not much that can be done for the woman from Tennessee.  She is just going to have to see how things shake out in the end.  What can we do about the future?  We’ll just have to think about what type of society we want and elect the appropriate legislators.  Do we want a society where the courts can use their discretion during sentencing? We would have to accept that there will be occasions where, every once in a while, a particular sentence will not be harsh enough for a particular criminal.  Or, do we want laws that have enforced minimums for certain crime?  We would have to accept that these laws would allow for people to serve long sentences even though the “criminal” had no intent to harm anyone?  No answers here, just a lot of thinking.

If you have any legal questions, check out my website and contact me.

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Does the Police Use of a GPS Violate the Fourth Amendment?

For this post, I’ll be discussing a case that is before the Supreme Court of the United States (“SCOTUS”).

In November, SCOTUS heard arguments on a case that may change our rights under the Fourth Amendment, U.S. v.  Jones.  The Fourth Amendment, provides protection by requiring the government to obtain a warrant, by demonstrating enough probable cause  to a magistrate, in order to search or seize property or a person.  The argument in this case, is whether or not attaching a GPS tracking device to a car, in order to discover where the suspect drove for over a month, required a search warrant.  (My personal favorite is the Third Amendment, but that doesn’t come up as often.)

Throughout the intervening centuries since its creation, the Fourth Amendment has been molded and changed by the courts to arrive at the modern definition.  At its simplest, the modern definition states that the Fourth Amendment protects a citizen’s expectation of privacy.  If a person expects a piece of property, an area of space or a conversation to be private, then the government will be required to obtain a search warrant in order to seize, search or listen.  Now, there are exceptions to the rule of requiring a warrant. (Some say these exceptions are some numerous as to be larger than the rule.)  One such exception is being in public.  If a person commits an act, or goes to a location, the government is not required to obtain a warrant in tracking a suspect’s movement.  It’s a simple rationale, if everyone can see you do something, why does the government have to jump through hoops to see what everyone else can?  SCOTUS has tackled question of police observing of criminal suspects many times before, and has usually ruled in favor of the police.

In the car tracking context, SCOTUS has dealt with this issue before in 1983, in U.S. v Knotts.  The issue in Knotts was the use of a beeper.  Police attached a beeper device to Knott’s car, who was criminal suspect, without a warrant.  The police could, at any time, activate the beeper and determine its location, and the location of the suspect’s car.  Knott’s claimed that attaching a device that could announce his location at any time to the police was a violation of the Fourth Amendment.  The government claimed that since the car was in public, the beeper performed the same function as a patrolman assigned to following the car.  SCOTUS agreed with the government and issued this ruling which has been precedent ever since: “A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”

Now comes Jones.  The basic facts are the same: the police attached a tracking device to a car that moved in public.  However, during oral arguments, SCOTUS reacted differently.  When Deputy U.S. Solicitor General Michael R. Dreeben, the government’s attorney, presented his case, he was hammered by questions from the Justices.  The first questions came from Chief Justice Roberts, who questioned the continued use of the Knotts precedent.  Roberts stated that Knotts is almost thirty years old, and the upgrades in technology allows more information to be collected by a GPS than a beeper.  Roberts worried that the current GPS could not only display the current position, like the old beeper, but could also show all movements over for the previous month.  Roberts wondered with the ever-changing world of technology, what could the police of the future collect.  Dreeben countered that these actions take place in public and thus, there is no expectation of privacy.  Justice Kennedy then asked if the police could attach a GPS to a coat without a warrant, since the coat is worn in public.  Justice Alito said that the issue is that technology allows for more intrusion into citizens’ lives than ever before.  Justice Breyer stated that if the government won the case, the government could monitor the movements of every person in the country twenty-four hours a day, which sounds like 1984.  Justice Sotomayor stated that the Fourth Amendment was drafted to prevent the use of general warrants, which allowed the government to indiscriminately investigate on mere suspicion.  She did not see how using a GPS was any different.

Stephen C. Leckar, the attorney defending Jones, began his argument that the attachment of the device was a trespass.  The Justices were not impressed by this argument, and suggested that there were larger constitutional issues at stake.  Leckar came around by the end of his presentation and stated that the GPS was a complete robotic substitute for human surveillance.

I have to say that I’m surprised at the Court’s possible leanings during oral arguments.  The Court was questioning a thirty year precedent that actions in public are not protected by the Fourth Amendment.  Of course, observed leanings during oral arguments is no predictor of the actual ruling.  But, the fact that the Court would question an established precedent is a surprise in itself.  We’ll just have to wait and see what happens later this next year.

If you have any legal questions, check out my website and contact me.

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Beware Chapter 9

First, my apologies to my readers.  The last scheduled post hit on the day after my wedding and the day before my honeymoon.  I thought I could get a quick post out.  I was wrong.  Since I don’t have any other weddings or honeymoons approaching, I should be okay for a while.  Now, back to the post.

Your first questions probably are “what is Chapter 9,” and “why should I fear it?”  Simple, Chapter 9 could permanently alter the town you live in and, if you are employed by that town, put a large dent in your future income.

 What is it?

Chapter 9 is one of the chapters in bankruptcy, like Chapters 7, 13 and 11.  What’s special about Chapter 9 is that it can only be used by municipalities.  It was created by Congress in 1934 so that towns could deal with the effects of the Great Depression.  At that time, towns were struggling with their ability to raise revenue and meet their budgets.  There are some differences with Chapter 9 from other chapters in bankruptcy.  This chapter is restricted only to municipalities that are within states that constitutionally allow for towns to claim Chapter 9, so it’s not available to every town.  Further, municipalities can neither be forced into this chapter of bankruptcy nor can they be forced to liquidate assets, as in the other chapters.  Bankruptcy judges cannot modify a municipalities’ bankruptcy payment plan, which is the usual practice of other chapters.  Chapter 9 does not protect collective bargaining agreements or pension plans.  For these reasons, Chapter 9 has been called the “Bankruptcy’s Bully.”

Why Should I Fear It?

If the town you live in or work for claims Chapter 9, you are about to lose some part of your town that you rely on.  Your town is possibly losing police officers, firemen, teachers or a cut in services such as operating hours at libraries or the town hall.  Even worse, the number one reason for a town to consider Chapter 9 is funding pension plans.  Once a town claims Chapter 9, pension plans are the first item on the chopping block in order to balance the budget.  Some pensioners are seeing cuts in the pension payments of 50-70%.  Cuts this deep seriously affect a person’s life style.

What Can I Do?

There is only one solution to solving a town’s economic woes: elect responsible politicians who can design sound financial plans and have the courage to implement them.  It’s that simple.  In such trying times, the worst thing for a town is to have leaders who bury their heads in the sand and ignore the financial reality.  Otherwise, your town will change and it won’t be for the better.  Here’s the proof.

If you have any legal questions, check out my website and contact me.

This post inspired by “The Next Chapter,” ABA Journal, November 2011


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Does Bevilacqua Matter to the Average Joe?

Well, like almost everything else in law, the answer is; it depends.  First, before we can examine that answer we must explore some history.

In mid-October, the Massachusetts Supreme Judicial Court (“SJC”) decided the case of Bevilacqua v. Rodriguez, 460 Mass. 762, (2011).  This case, along with Ibanez decided earlier in the year, is a continuation of the courts’ struggle in untying the foreclosure knot.  This “knot” was created during the heyday of the last decade.  The untying of this knot, and dealing with its consequences, is proving to be difficult.

What happened to Mr. Bevilacqua? 

The background of the case is simple; Mr. Bevilacqua purchased an unclear title.  The property was foreclosed on by US Bank.  Mr. Bevilacqua purchased the property from US Bank and then spent hundreds of thousands of dollars converting the property in to condominiums.  Then the ruling of Ibanez, which held that improperly executed mortgage documents affected an owner’s title, clouded Mr. Bevilacqua’s title.  (Apparently, US Bank began foreclosure proceedings a month before it was assigned title,and thus, had no right to foreclose.)  Thus, US Bank did not have clear ownership of the title it sold to Mr. Bevilacqua.  Mr. Bevilacqua brought his case to Land Court in a try title action on order to clear the title.  The Land Court ruled that he did not have standing to bring the action since he did not have title.  Mr. Bevilacqua appealed and the SJC upheld the Land Court’s decision.

What does all this mean?

The simplest answer for Mr. Bevilacqua is that the chain of title is broken.  He needs to fix the chain in order to gain ownership.  How can he do this?  Luckily, the SJC left open the idea of how chain of title can be repaired.  There are two options with variable parts: (1) a quit claim deed, or (2) another foreclosure.

The first and easiest method, legally, would be to buy a quitclaim deed for the property from the original owner who was foreclosed upon, a man named Mr. Rodriguez.  Of course, this method would depend upon how easy it is to track down the former owner.  (For Mr. Bevilacqua this could be difficult since Mr. Rodriguez never responded to any court filings.)

The second option, foreclosure, has many options depending upon who performs the foreclosure.  Mr. Bevilacqua could foreclose upon the property himself, in an effort to clear the title.  This option would require Mr. Bevilacqua to follow the foreclosure requirements such as sending notices, etc.  The legal fees would be in the thousands.

Mr. Bevilacqua could also use the old common law foreclosure process.  This process requires the forecloser to enter the property, state that he is foreclosing and file a certificate with the registry of deeds.  The waiting period after the filing is three years before the property is foreclosed.

The final foreclosure option is demanding that the bank re-foreclose on the property.  This option includes another problem.  Since there would be another foreclosure auction, Mr. Bevilacqua might not be the highest bidder and thus, might not win the property.  If that happened, there would be more legal trouble as Mr. Bevilacqua tried to recover the funds he invested in the property.

What does all this mean to the Average Joe?

Back to the original question posed at the beginning to this post: what does the mean to the average person.  Honestly, not much.  The average person is more concerned about retaining his home and is not too concerned about obtaining more property for investment purposes.  Now if the Average Joe is considering purchasing property, especially if this property was foreclosed on, it might be a good idea for the Average Joe to review the title history of the property to insure that there are no Bevilacqua issues.  It would probably be a better idea to have an attorney also review the title history in, just to make sure.

If you have any legal questions, check out my website and contact me.

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Something New

Hello.  I am an attorney that opened my own office in Clinton, Massachusetts in January of 2011.  My practice is focused primarily on bankruptcy, criminal law, family law and some estate planning.  The purpose of this blog will be to explore the ever changing field of law and discussing the effects of those changes on the world around us.  My goal is to make posts twice a month.  I hope you’ll enjoy reading this post.  If you are curious about me, my website can be found here.

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