Imagine, if you will, that you are a reasonable Massachusetts resident who awakens early one spring morning to find that some evil prankster has littered the lawn and sidewalk outside your home with open bear traps and slimy old banana peels. You know that dozens of kids will be walking past on their way to your nearby middle school within the hour.

Your responsibility under the circumstances is pretty clear here, at least unless you’re prepared to pay for a wardful of kiddie-sized artificial limbs: you’re going to have to clear out, rope off, or otherwise mitigate an obvious hazard to the public on your property.

Easy enough. Now try this one: what if it were a January morning, and you awoke to find that your sidewalk had naturally frozen into a solid sheet of slippery snow and ice? Until recently, you could have thrown some popcorn in the microwave, eased into your favorite bunny slippers, and enjoyed the hilarious slip-and-fall antics with your morning coffee.

The ice was, you see, merely a “natural accumulation.” It came from the sky! It wasn’t your fault!

That’s right: Massachusetts law for the past 150 years has held property owners responsible only for injuries resulting from “unnatural accumulations” of snow and ice. While the “natural” vs. “unnatural” distinction is about as unnatural as it gets, the best I’ve been able to discern is that accumulations caused by any kind of “synthetic” means (i.e., your mother going a little crazy with the snowblower) incur liability, while those which have fallen into place “naturally” (i.e., Mother Nature) do not.

This rule, eliminated at long last today in Papadopolous v. Target, was so stupid that it has been known nationwide as “The Massachusetts Rule” for at least the past century. (This kind of special treatment is not generally proportionate to a given rule’s logic or correctness.) It is an ancient holdover from a time when a completely different legal standard was applied to the duty owed by landowners to people who might be passing over their property in the normal course of business (”invitees”) as opposed to paying tenants.¹

I don’t have much of a stomach for torts,² but anyone who was mostly conscious through their first year of law school will recall the “duty of reasonable care” which homeowners owe to those—even, in some cases, known trespassers—who may be crossing over their property. The principle is pretty straightforward: Every man’s home is his castle, and if you want to cover your floors in rancid butter, rusty caltrops, and used medical supplies, you have every right to do so—so long as you don’t expose anyone else to these conditions. If you know (or have reason to know) of a hazard which might be encountered by others, you have a legal³ responsibility to employ all reasonable means available to clean it up. Hence the banana peels-and-bear-traps hypothetical above, and the simple logic of today’s decision. While a general duty of reasonable care to anyone who might cross their property has been the law for property owners in the Commonwealth since at least the 1977, the courts never bothered to shovel up the old “natural” vs. “unnatural” distinction for snow and ice—and plaintiffs have been tripping up on it ever since.

This weird little exception to the reasonable care rule is somewhat understandable on a practical level: clearing out snow in the middle of a New England winter is a lot of work. But even Rhode Island⁴ snidely parted ways with Massachusetts on this years ago, laconically noting that:

We believe that today a landlord, armed with an ample supply of salt, sand, scrapers, shovels and even perhaps a snow blower, can acquit himself quite admirably as he takes to the common passageways to do battle with the fallen snow, the sun-melted snow now turned to ice, or the frozen rain.

–-Fuller v. Housing Auth. of Providence, 108 R.I. 770, 773 (1971)(emphasis added)

The SJC has basically adopted this reasoning, albeit in slightly less-quotable form, and scattered enough quick-melt salt on the old “natural accumulation” rule to do away with it forever. It even liked this development so much that it opted to make the rule fully retroactive—complete with the usual inevitable assurances that, really, there’s no reason to think that any litigation-minded plaintiff would actually be impolite enough to reach for the blank checkbook this might present for anyone who has taken a spill on some ice in the past 150 years.⁵

As of Papadopolous, the SJC has now finally—mercifully—brought Massachusetts to the very cutting edge of postmodern snow law. Bonus: this decision lands in the middle of one of the Commonwealth’s hottest summers on record.

Happy shoveling!

1. The SJC has provided a perfectly serviceable review of the 150 years of relevant law within its opinion which I don’t feel any need to retread here. [↩]
2. at least those not served a la mode [↩]
3. if not moral and social [↩]
4. Rhode Island! A place so married to tradition that it is the last American state to continue to openly celebrate Victory over Japan Day! [↩]
5. I kid. This was, of course, a major change to a common law rule, a circumstance which generally demands retroactivity. I just love how every time any court announces a groundbreaking retroactive rule it always seems to feel obligated to add that this won’t really, y’know, change anything, and there’s certainly no reason to believe that it will inspire a fresh wave of legal action. [↩]

Uncategorized massachusetts, stupid laws

We’re still only a few hours out from the release of today’s Supreme Court decision in Padilla v. Kentucky–-the facts and issues of which I’ve previously summarized here—and there’s no way I’m going to get through any kind of analysis of this thing without resorting to rank superlatives. So if you’ll indulge me, let’s run ‘em down right up front:

(1) Padilla is the single most significant stand that the Court has taken on behalf of the rights of non-citizens in my lifetime. It will provide a massive, widespread, immediate benefit for innumerable deserving¹ people, including many of my clients.

(2) Padilla has created the single most burdensome obligation that the Court has ever imposed upon the criminal defense bar.

(3) I have never had such thoroughly mixed reservations about a case that I should otherwise love so much.

Okay, deep breaths. Let’s break this down:

(1) What does Padilla mean for non-citizens?

As of today, any non-citizen present in the United States who enters a guilty plea to a criminal offense which will carry a “truly clear” consequence of future deportation (and, arguably, other immigration consequences) who is represented by counsel must be advised by their attorney of this consequence. In cases in which the immigration outcome is less certain (as it is in many, if not most criminal cases), counsel is obligated to advise that the plea may carry a risk of deportation. Non-citizens who have not been properly advised of these risks and/or consequence may be eligible to withdraw their pleas based upon ineffective assistance of counsel.²

(2) What does Padilla mean for criminal defense attorneys?

In a perfect world, the Supreme Court would have mailed courtesy copies of this decision to every criminal defense attorney in the United States firmly affixed to a very large bottle of J+B. Once the full implications of this ruling really start to sink in, most of them will be needing a stiff pour.

Simply put: Padilla requires the defense bar to learn a lot about federal immigration law, and very quickly. Imagine a baker who specializes in artisan breads arriving in the kitchen one morning to find that his boss has amended his job description to include the creation, production, and presentation of French pastries—with no concomitant training opportunities or salary increase. It’s kind of like that.

As of today, criminal defense attorneys throughout the United States are now required—upon pain of Constitutional ineffectiveness—to be conversant in all 33 definitions of the term “aggravated felony” outlined in the Immigration and Nationality Act as well as specific federal interpretations of each of these definitions and applications of these definitions to their local jurisdiction’s criminal statutes [PDF]. They will be expected to know exactly what does and does not constitute a “conviction”—a term which, under federal immigration law, is defined far more broadly than its equivalent in many states, including Massachusetts—and to have a working knowledge of how a client’s past criminal record may combine with the plea in question to raise a serious risk of deportation. They will be expected to have a working knowledge of “crimes of moral turpitude,” and to be able to articulate the legal and semantic differences between inadmissible and deportable offenses. They should probably learn a bit about mandatory detention [PDF] and the mechanics of immigration removal proceedings. This is, needless to say, a lot to learn at once, and replete with moving parts.

If you’ll allow me one more analogy: Padilla has drafted criminal attorneys to serve in the ranks of the armies of Immigrationland. It may not be what most of them signed up for, but they now have their marching orders and it seems that “theirs is not to make reply / theirs is not to question why.”

(3) What else is going on here?

Plenty. I’ll have more to say about this shortly, but here are a few immediate thoughts:

Padilla is kind of an interesting counterpoint to last year’s monumental Sixth Amendment ruling in Melendez-Diaz v. Massachusetts, in which the Court held that the government must introduce live supporting testimony from the chemist responsible for the analysis of a controlled substance before evidence of that substance may be used against a criminal defendant. Where Melendez-Diaz has caused massive systemic migraines for prosecutors and law enforcement, Padilla will now impose what I have to assume will be a comparable burden of time and resources upon the defense bar. In both cases, of course, the Court has been suspiciously quick to claim that these two sweeping, transformative decisions really won’t “commence [a] parade of horribles” (Melendez-Diaz) or “open the floodgates” (Padilla).

This is also the first time of which I’m aware that the Supreme Court has gone as far as to require defense counsel to be aware of a “collateral consequence” of a guilty plea. For as much as I hate slippery-slope arguments, there is a serious question here as to potential future challenges. What if a defendant isn’t informed that his conviction will leave him ineligible to receive federal student loan assistance? To serve in the U.S. military? To obtain a real estate license, or sit for a state bar exam? Do we need to provide each defendant with a checklist for these and every other possible potential future foreseeable consequence?

For as much as I wholeheartedly agree with Justice Stevens’s contention that the possibility of a lifetime of exile from the United States is perhaps the most serious collateral consequence imaginable, the fact remains that it is still a federal issue which is entirely separate from state-based criminal systems. Just a thought.

Again, though, these are all initial impressions within hours of first reading this decision. I’ll likely have more to say—including Massachusetts-specific analysis—once I’ve digested this thing a bit more, but my overall response (as an immigration practitioner, as least) is a feeling that justice has been done here. Despite my quibbling above, I fully agree with Justice Stevens:

Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.

1. And, arguably, not-so-deserving… [↩]
2. Far more will likely be limned from this 18-page opinion in the coming years, but I think that this is a pretty fair summary of the basic holding. [↩]

Immigration Appeals, U.S. Supreme Court

“Tiny Weapons” could be (but is not) a sparkly J-pop duo or a bearded, Brooklyn-based indie-folk collective. Happily, it is instead the focus of today’s Appeals Court decision in Commonwealth v. Cruz-Rivera (08-P1758, Dec. 18, 2009). In relevant part, the court sensibly held that:

Contrary to the motion judge’s findings, there was no evidence that pill-bottle sized weapons had “proliferated” nor was there evidence that the defendant had a specific history of using tiny weapons.

Cruz-Rivera was subjected to a traffic stop after he was observed operating his vehicle in “an unsafe manner.” Although there was some belief that he might somehow be a person of mild interest in connection  an incident in Lowell,¹ there simply wasn’t enough to hold him or charge him with anything. Following a routine patfrisk for officer safety, the defendant was declared free to leave just before officers decided—and hey, why not, while we’ve got him here—to perform a detailed, comprehensive, fine-tooth search of his vehicle for reasons never really clearly stated on the record in any kind of way that should have passed the laugh test.

Almost immediately at the outset of the search, officers proceeded to examine a large-ish “vitamin pill bottle” in the vehicle’s center console, in which they found… well, you can probably guess. Nothing my mother ever made me take—although it might have gotten me through my chores  a lot faster.

The defendant moved to suppress the evidence as the result of an unlawful search, and the motion judge found that “[b]oth officers [had] received training indicating a proliferation of smaller weapons that are easily concealed in small containers…. which include razors, knives, and pen-sized single-shot guns, ” although it was “perhaps a relative longshot” that they might find a “small knife or a one-shot revolver.”²

On appeal, the Appeals Court reversed the motion judge, holding that:

On this record, it simply was not reasonable to believe that the defendant might, upon his release with a message that he was free to go, enter his car, reach into the console, open a pill bottle, extract a weapon smaller than four and one-half inches by one and three-fourths inches and use it in an effort to harm the two nearby, fully armed police officers who had just released him. Indeed, allowing police to search the pill bottle under the circumstances this record reveals would, as a practical matter, essentially remove most constitutional brakes on police power to search the contents of motor vehicles stopped for routine traffic incidents.

Exactly the right result. Remember:  this was a vitamin pill bottle. We’re not talking about a massive bottle of Vicodin with someone else’s name on it, a green plastic box labeled “Rebekah’s Pot,” or, indeed, a dodgy titanium cylinder marked “CAUTION! TINY WEAPONS INSIDE!” Having found no other reason to hold the defendant, the police conducted an invasive search of his vehicle which included areas that no reasonable person would ever believe to contain weapons, and then attempted to justify the whole thing after the fact with a weird explanation of how small weapons can be, sometimes, in the known universe. (Also, quick protip: Any true collector knows that tiny weapons begin to lose their value pretty much immediately unless they are protected from the elements in a childproof screwtop vitamin bottle.)

As I have discussed in this space more than once already, officer safety is serious business. I don’t discount the entirely-valid concerns that should arise when police engage a suspect for even the most routine traffic stops, and officers should be encouraged to take all reasonable measures to protect themselves—but there’s nothing wrong with an appellate court stepping in to ensure that the limits of these searches are properly circumscribed. Having already decided that a suspect is free to go, there is simply no defensible reason to conduct an invasive search of every container in his vehicle.

Well, anyway. If you are the kind of person who is inclined to believe that criminals are always “getting off” on “technicalities,” (and it happens far less often than you might think, anyway) you may want to read these facts again—and kindly remember that the Constitution is never a technicality, at least not here in the Commonwealth.

1. Not quite as bad as it sounds: see footnote 2 in the opinion [↩]
2. Unless, of course, the defendant was wanted for questioning in connection with the assassination of President Garfield. [↩]

Criminal Appeals, massachusetts

Anyone who hated Melendez-Diaz v. Massachusetts now finds themselves looking down the barrel of Commonwealth v. Hollister, App. Ct. No. 08-P-1080 (Nov. 17, 2009), in which the Appeals Court has reversed the conviction of a defendant who did not have the opportunity to cross-examine the technician who determined that the loaded gun at issue was a “firearm.”

Melendez-Diaz was, of course, the most important criminal law ruling from the Supreme Court’s last term. As I’ve already discussed (more than you ever really need to know here and here) it was an elegant and, at base, nearly inarguable Scalia decision which held that introducing certifications of drug lab results without the opportunity to cross-examine their authors at trial is a violation of a defendant’s Sixth Amendment right to confront all witnesses against him. There was never any question whether Melendez-Diaz would be extended to ballistics evidence—as, indeed, it recently formally has been in Morales v. Massachusetts, 129 S. Ct. 2858 (2009)—but the real question was always “how far?” Hollister provides an interesting signpost in that direction.

Hollister concerned an unlicensed possession of a firearm charge arising from a loaded gun found in the glove compartment of the defendant’s truck. During a bench trial, the judge had an opportunity to inspect the weapon itself, as well as a certificate from a ballistics technician who had tested the gun and determined that it fit the statutory definition of a “firearm.” This definition includes:

…a pistol, revolver or other weapon of any description, loaded or unloaded, from which a shot or bullet can be discharged and of which the length of the barrel or barrels is less than 16 inches or 18 inches in the case of a shotgun as originally manufactured.

—G.L. c. 140, § 121 (emphasis added)

This definition necessarily requires that each and every weapon at issue in a gun possession case must be tested by a certified ballistics technician to determine whether the thing is actually operable, just as the chemical makeup of suspected illegal substances must be scientifically confirmed in a drug lab. While the process of testing out guns may be a bit less science-y (if not a lot more fun) than that of spectrographically analyzing dodgy powders, it is still evidence prepared in anticipation of trial which, if properly proven, will provide definitive proof of a significant element of the charge.

It is, in other words, squarely within the kind of evidence which Melendez-Diaz has held must be supported by live testimony at risk of violating the defendant’s Constitutional rights. Under traditional appellate review standards, it becomes the Commonwealth’s burden in each case in which such a violation may have occurred to prove that this Constitutional error was “harmless beyond a reasonable doubt.”

It’s easy to imagine a drug case in which failure to give the defendant the chance to cross-examine the lab tech on his findings might be held to constitute harmless error, and Massachusetts courts have been happy to do so more than once in the months since Melendez-Diaz came down. There are plenty of circumstantial factors—smell, appearance, results of field testing, the presence of scales, cash, and drug paraphernalia, and/or your massive library of live Phish bootlegs, etc.—which may be considered in order to find that any given substance is an illegal drug, and the Commonwealth routinely introduces these right along with lab certificates in such cases. But the only truly reliable way to determine if a given gun is a “firearm” in the statutory sense¹ is to shoot it at something and see what happens. (To be fair, the [admittedly slight] odds that the loaded gun found in the defendant’s truck in Hollister was not actually a “firearm” were probably actually much better than those that one of the plastic sandwich baggies full of white powder in Melendez-Diaz was not some kind of illegal substance. On a purely practical level, there is at least some rationally justifiable reason to keep a fake or broken gun handy—never know whom you may need to scare off, I suppose—at least more so than stashing baggies full of baking soda or whatever).

Hollister was tried and appealed pre-Melendez-Diaz, and really doesn’t have much practical use in a world where prosecutors have already taken to introducing the supporting testimony of analysts of every kind to preclude this issue altogether. Still, it’s a natural and welcome development in post-Melendez-Diaz caselaw, and the Appeals Court has [marksmanship metaphor of your choice here] on this one.

1. Assuming that no one is prepared to testify that they had seen it fired before [↩]

massachusetts

So. Gatesgate.¹

For as eminently debatable as this week’s arrest of Professor Henry Louis Gates and its aftermath may be for people who are properly qualified to discuss the state of race relations in America, I am not one of those people.² But I have been excited to see how much attention this story has brought to the Commonwealth’s colonial-era disorderly conduct statute, and this is as good a time as any for us to review once again why its continued existence is nothing but an embarassment to us all.

Professor Gates, as we all know by now, was arrested for disorderly conduct on his own front porch in Cambridge last week. Police had been called by a concerned citizen who reported a burglary while watching Gates and his driver attempting to strongarm a door to which Gates had misplaced his keys after a trip to China. The police arrived and established Gates’s identity with a photo ID which included the address in which they were standing.

According to the police report, Gates then became upset and expressed his opinions regarding the injustice of the situation, the Cambridge Police Department, and the treatment of African-American men by police in the United States, at which point he was cuffed and arrested for disorderly conduct as a small crowd gathered. The charge was subsequently killed several days later, together with the usual “not our best moment, not his best moment” statement from the Cambridge PD.

Letting this go was the right move for all concerned, obviously. But what if the case had gone forward?

As I have previously discussed as thoroughly as I cared to, the Commonwealth’s disorderly conduct statute is a facially unconstitutional 400-year-old mess that has been preserved only through willful acts of judicial alchemy. Unfortunately, its many vagaries and moving parts have made it a reliable standby in the collective arsenal of law enforcement officers throughout the Commonwealth and, right or wrong, it is all too common to see this charge brought after an arrest in which the defendant has forgone his Fifth Amendment right to remain silent in favor of his First Amendment right to express his opinion about the situation.

The defense’s first strategy would almost certainly have been to move to dismiss the charge. Looking at only one of this crime’s many possible elements, it is highly unlikely that Gates’s alleged conduct (even assuming that it was just as obnoxious as reported) caused or created a risk of “public inconvenience or alarm.” According to the police report, his confrontation with police began in his own kitchen after he had provided them with evidence of his identity; he was then was invited to step out and continue the discussion on his own front porch. Although the police report alleges that a small crowd was gathering at this point, the fact remains that the officers had no reason to be there once they had established that Gates had not just burgled the place, and it seems highly unlikely that that this gracefully-aging gentleman with a cane, a bronchial infection, 12 hours of jet lag, and a Harvard ID was otherwise likely to pose any risk of “public inconvenience or alarm.”³

The “public” element aside, however, there is the basic issue of a citizen’s right to vocally disagree with the police. While most reasonable people can agree that it’s probably best to keep calm in the face of possible arrest, it is also understandable that, as the U.S. Supreme Court has previously held, your average law-abiding citizen is going to get a little worked up if he feels that he is being treated like a criminal for no good reason. Despite the best efforts of the police to work the magic words “tumultuous” and “served no legitimate purpose” into the affidavit in support of the criminal complaint [page 4], Gates’s conduct closely resembles that of defendants in at least two other Massachusetts appellate cases⁴ in which disorderly conduct convictions have been reversed:

In Commonwealth v. Lopiano, 60 Mass. App. Ct. 723 (2004), police had just witnessed the defendant assaulting his girlfriend before they moved in to arrest him; he then began flailing his arms and yelling loudly about his civil rights and such. In reversing his conviction for disorderly conduct, the Appeals Court noted that his behavior was not “extreme” or otherwise threatening, and was not therefore statutorily “tumultuous.”

Commonwealth v. Zettel, 46 Mass. App. Ct. 471 (1999), my personal favorite in this line of cases, held that a difference of opinion with a police officer is a “legitimate purpose” that may provide a proper defense against a charge of disorderly conduct. Although the defendant in Zettel had actually kicked a cop in the shins following an argument with him over her right to a parking spot in Fall River, the court held that her conduct arose from a “legitimate purpose” for causing a scene. But this is consistent: Massachusetts and other jurisdictions have found “legitimate purpose” for causes as diverse as protecting your water supply and attempting to save your marriage, so why not challenging a police officer who is expressing an intent to arrest you?

For as much fun as this little Gedankenexperiment may be, we are still talking about a criminal offense which carries up to six months of committed time. Disorderly conduct charges are regularly and routinely brought against defendants of every description around the Commonwealth—most of whom do not have Al Sharpton on speed-dial—under nearly identical circumstances. Let’s hope that all of this publicity will finally shame the legislature into putting G.L.c. 272 Sec. 53 out of its misery.

1. Note: Nobody should ever call this incident “Gatesgate,” for any reason. [↩]
2. For what it’s worth, I believe that the heartless and disturbingly insensitive prosecution of UMass Amherst student Jason Vassell is a far better example of the point that Gates and his supporters have been trying to make… it was really only the fact that it happened in Western Massachusetts that has kept it out of the conversation. [↩]
3. This is generally defined as “affecting or likely to affect persons in a place to which the public or a substantial group has access.” Commonwealth v. Molligi, 70 Mass. App. Ct. 108 (2007). So maybe a few people could hear him from the sidewalk—but so what? I just don’t see it. “Public” really should mean “public.” As a policy matter, this statute is supposed to preserve public order, not the sensibilities of police officers. [↩]
4. There are many more, but these are the two that immediately came to mind when I read the Gates police report [↩]

disorderly conduct, massachusetts, stupid laws

So you’ve been caught stealing from The Electric Company.¹  Your trial and conviction were otherwise unremarkable, and you’re short on good issues for appeal. Might as well try this:

The defendant lastly contends that the electricity and the gas sold by NSTAR do not constitute “property”…

Commonwealth v. Catalano, No. 08-P-1340 (July 1, 2009)

This is, of course, yet another appellate argument that sounds totally crazy when you say it out loud. Sure, the appellant is saying, maybe the electric company generates, manages, and distributes electricity, but that doesn’t mean that they own it! As The Rascals once never sang: All the world over, so easy to see… Currents of electrically charged particles passing by means of conductors from one body to another just got to be free!

Although perhaps morally questionable, this position is actually legally defensible. On first read, the definition of “property” outlined in the larceny statute really doesn’t seem to include electricity, or anything that resembles electricity.² While it is otherwise remarkably thorough—e.g., ”data while in transit,” “a beast or a bird which is ordinarily kept in confinement”—the statute makes no mention of household utilities as property subject to larceny.

Of course, the court also doesn’t want to be responsible for converting the Commonwealth’s entire electric grid into some kind of wacky Napster-style free-for-all. So, soldering iron in hand, the panel expertly grafts public utilities into the larceny statute’s “personal chattel” provision.

“Chattel” is, of course, one of the grande ensemble of Frenchified lawyerin’ words which came to dominate English common law after the  Norman Conquest. It’s really just a fancy way to say “movable property,” and is best defined as pretty much anything that could logically complete the phrase: “Hey, that guy just stole my _________!” As the Appeals Court is quick to note, gas has been viewed as a chattel subject to larceny in the Commonwealth since at least 1853. But no one had ever bothered to ask about electricity before now.

Bereft of any relevant Massachusetts caselaw, the court reluctantly resorts to actual science. After (presumably) dispatching a law clerk for a field trip to the Museum of Science’s Van de Graaf generator exhibit, the Court reports back that:

…electricity, like gas, also may be stored and conveyed. Storage is possible in a capacitor, and may be transmitted through wires.

Well, that and the U.S. Supreme Court already found that there is a property interest in electricity 70 years ago, as have several other states. So while this “would have been a novel question one hundred years ago,” and “the defendant is correct that this precise issue has never been addressed in Massachusetts”:

…it is a well-established legal principle that electricity and gas are personal property that may be the subject of larceny.

1. Better them than 3-2-1 Contact, which no doubt would unleash the unchecked extralegal vigilantism of  The Bloodhound Gang. [↩]
2. ”The term “property”, as used in the section, shall include money, personal chattels, a bank note, bond, promissory note, bill of exchange or other bill, order or certificate, a book of accounts for or concerning money or goods due or to become due or to be delivered, a deed or writing containing a conveyance of land, any valuable contract in force, a receipt, release or defeasance, a writ, process, certificate of title or duplicate certificate issued under chapter one hundred and eighty-five, a public record, anything which is of the realty or is annexed thereto, a security deposit received pursuant to section fifteen B of chapter one hundred and eighty-six, electronically processed or stored data, either tangible or intangible, data while in transit, telecommunications services, and any domesticated animal, including dogs, or a beast or bird which is ordinarily kept in confinement.” G.L. c. 266, § 30(2 [↩]

Uncategorized

There’s something kind of inherently dodgy about sequels. They’re usually nothing more than a quick buck and a cheap laugh, the faint shadow of what we enjoyed so much the first time around. For every beloved classic that really captures what worked in the original (Terminator 2, The Godfather: Part II, The Empire Strikes Back), Hollywood cranks out vaults of best-forgotten throwaways (see¹ every other Terminator sequel, The Godfather: Part III, The Phantom Menace²).

The Supreme Court’s 5-4 decision in Melendez-Diaz v. Massachusetts [PDF] was released earlier today as a followup to its critically-acclaimed performance in Crawford v. Washington. To the surprise of pretty much no one I know who cares about these things, Justice Scalia’s majority opinion came down almost exactly as I predicted it would a few days ago. (Just a warning: The following might get a little confusing if you haven’t read that post, or any other review of the issues in this case.)

As sequels go, Melendez-Diaz is a formula job. Scalia revisits everything that we loved about Crawford, and once more finds that the Confrontation Clause was intended to mean exactly what it says: a criminal defendant “shall enjoy the right… to confront all witnesses against him.” As of today, this is true even—or perhaps especially?—if those witnesses happen to be wearing lab coats. Melendez-Diaz has emphatically held that evidence of the chemical composition of an alleged controlled substance may not be introduced without the supporting live testimony of an analyst responsible for this testing. It’s a good result, and I’m happy to see it.

I don’t know about you, but I hate it when sequels re-cast major characters.³ While Scalia reprises his Crawford role as the dorky-but-likeable strict constructionist leading man here, Thomas⁴ plays the plucky swing voter, and Kennedy⁵ serviceably captains a grumbly dissent that is a full ten pages longer than the majority opinion. It’s all kind of confusing.

Justice Thomas, still riding high from recent cases in which he was the lone voice in favor of both gutting the Voting Rights Act and giving the government the green light to probe the underpants of our nation’s 13-year-old girls on a whim⁶, filed a one-page concurrence in which he basically agreed with Scalia on every point (nothing new there), but also made it clear for the record that he only supports Crawford as it relates to “formal testimonial” statements.⁷

This was more the kind of thing that I was expecting from Chief Justice Roberts⁸, but Roberts joined Kennedy’s rambling 33-page⁹ dissent together with Alito and Breyer. I would dig into this dissent more, but I’m just not up to it right now, mostly because: (1) caselaw, like history, is written by the winners and (2) I don’t like it very much. While I do agree that Scalia has overstated the efficacy of the so-called “burden-shifting statutes” used in many states, I was otherwise entirely unpersuaded by Kennedy’s arguments. I will note only that the idea that 21st-century chemists are in any way comparable to 18th-century copyists simply doesn’t pass the laugh test, and that I think that he otherwise vastly overstates both the import and the potential impact of this decision even as he indulges in an unbecoming display of haughty pragmatism. Besides, lengthy contextual examinations of what the Framers were thinking at any given moment is the kind of thing that really only works for one of the Court’s current members—and he’s on the other side of this one.

It’s really unfortunate that a case of this significance had to be so closely divided, but it is especially interesting to see who ended up where. The Court’s three (arguably) most “liberal”¹⁰ justices have teamed up with its two avowed conservatives against four of its most consistently moderate thinkers. Like so many Supreme Court-worthy cases, however, Melendez-Diaz presents issues that are far more important than the typical “conservative” or “liberal” distinctions with which the rest of the country has become so obsessed. As Walter Dellinger just noted in a Slate post, these two unlikely combinations of justices can be viewed as “legalists” (what does the law say?) versus “pragmatists” (what will this result achieve?), and Justice Sotomayor can’t necessarily be counted upon to reliably fall upon either side of this split if and when she takes the bench.

Well, anyway. This case may not be as much fun to talk about as today’s Redding “strip-search” ruling, but I’m fairly confident that it will ultimately prove to be far more important, both here in Massachusetts and elsewhere.

1. Or, better yet—don’t. [↩]
2. Yeah, I know: it’s a prequel. So maybe I’m assuming that the Supreme Court and Star Wars attract totally different packs of fanboys. Throw me to the Sarlacc. [↩]
3. E.g., Katie Holmes’s replacement by Maggie Gyllenhaal during the course of the Batman reboot. It’s a small thing, I know, and I actually like Gyllenhaal better—but still: Why? [↩]
4. Yeah, that Thomas. [↩]
5. Yeah, that Kennedy. [↩]
6. Seriously, I wish that were just a stupid joke. Today’s wantonly authoritarian dissent in Redding is one of the single scariest things I’ve ever read in a Supreme Court opinion issued in my lifetime. [↩]
7. Read: Barely agrees with Crawford at all. [↩]
8. This was, after all, the essence of the position taken by his mentor William Rehnquist in his Crawford concurrence, and it is otherwise fairly consistent with Roberts’ brand of moderate conservatism [↩]
9. Including not one, but two appendices full of [mostly pre-Crawford] cases that this decision will allegedly disturb or overturn… [↩]
10. This is relatively speaking: I continue to maintain that there have been no true “liberals” on the Court in my lifetime. [↩]

Criminal Appeals, U.S. Supreme Court, massachusetts

It’s the bottom of the ninth for The Nine as we head into the U.S. Supreme Court’s last full week of the 2008-2009 term. As always, the Court is saving some of the best—and, inevitably, most internally divisive—rulings for last.¹ Here in the Commonwealth, we are eagerly awaiting the results of the most significant Massachusetts criminal case to reach the nation’s highest court this term: Melendez-Diaz v. Massachusetts, 07-591. If it comes down the way that most people seem to be expecting, this ruling may have an a broad and immediate influence on the litigation of drug-related criminal cases.

Luis Melendez-Diaz was arrested in Dorchester during the course of a drug transaction in a parking lot. He and his co-defendants were found to be in possession of a number of plastic baggies of powder of varying consistencies—some of which was white, some of which was yellow. Some, but not all, of these substances were tested by chemists in the state drug laboratory, and the lab concluded that all 22 grams or so was cocaine. The forms certifying these findings did not offer any specific information as to what methods were used to reach this conclusion, exactly how much of the drugs were tested, or any explanation as to the obvious differences in visual appearance between the samples. Pursuant to standard Massachusetts trial procedure, these drug certifications were deemed admissible in and of themselves, and their authors were not called to testify.

In his appeal to the Massachusetts Court of Appeals, Melendez-Diaz argued that these drug certifications were inherently “testimonial,” and therefore constituted inadmissible hearsay without the supporting live testimony of their author at trial. This argument naturally arises from recent developments in the interpretation of the Sixth Amendment’s Confrontation Clause, which provides that “…in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” Like so many of our finest Constitutional principles, this is an ancient and honorable doctrine with a pedigree that predates Roman law, and a reasonably simple one: whenever realistically possible, our society believes that witnesses with testimony that would tend to criminally inculpate a defendant must be brought into court not only to present this evidence, but to be made available for cross-examination by the accused.

Unfortunately for Melendez-Diaz, the Supreme Judicial Court of Massachusetts had already squarely addressed this issue in Commonwealth v. Verde, 444 Mass. 279 (2005), and concluded that drug certifications are merely “business records,” rather than testimonial hearsay. Bound by this precedent, the Appeals Court dismissed Melendez-Diaz’s appeal in an unpublished opinion [PDF] which the SJC declined to review.

While this would almost certainly be the end of the road for any given criminal appeal, Melendez-Diaz had the benefit of some truly impressive advocates who took his case from an unpublished dismissal by an intermediary state appellate court straight to the docket of the U.S. Supreme Court. Inspiring stuff for any aspiring appellate attorney, but why would the Supremes choose to pluck this otherwise-unremarkable little case out of obscurity?

Read more…

1. As summarized over at SCOTUSblog, there are a total of ten major rulings left as of today’s date, including a campaign finance case arising from an anti-Hillary Clinton campaign “film,” a Fourth Amendment challenge to a school’s humiliating strip-search of a young girl, and the politically-charged “New Haven firefighters” Second Circuit case in which Supreme Court nominee Sonia Sotomayor was a panelist. [↩]

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The  Administrative Appeals Office (”AAO”) of the United States Citizenship and Immigration Services (”CIS”) may be the most mysterious appellate body in the American legal system. The AAO is tasked¹ with the review of a wide range of immigration-related decisions that have the potential to seriously affect people’s lives, including the denials and/or revocations of visas, waivers, and other basic immigration issues arising from CIS decisions. It is, in short, the unloved little step-brother of the Board of Immigration Appeals, the better-known body which generally handles appeals from decisions of American immigration courts.

Despite this significant authority, the AAO’s opinions are not formally published, rarely binding on anything beyond the case at hand, and are, in certain cases, unreviewable by a higher court. Its decisions are never credited to any particular judge or adjudicator and, to the extent that they are made available to the public, they are clumsily organized by subject matter in groups of annoying PDF files which are not indexed or otherwise easily searchable.

It is also well worth noting that appellants must remit a non-refundable $585 fee² simply for the privilege of having their appeals filed before the AAO. There’s no telling where all of that money is going, though, especially considering that—unlike any other appellate body in the United States of which I’m aware—the AAO doesn’t even have a website.

But you don’t have believe me. Just take it from the CIS ombudsman, who offers the following dismal summary [PDF]:

The lack of published information on AAO standards and procedures leads customers and stakeholders to question the integrity of the AAO decision-making process.

As of today, however, I have reason to question not only the AAO’s “decision-making process,” but its entire existence.

After careful consideration, I have come to the following rather startling conclusion:

The Administrative Appeals Office has no jurisdiction over anything.

The proof is fairly easy to come by, but you’re going to have to bear with me here: I’m about to get all regulatory on you.

This sordid fiasco begins with 8 C.F.R. §103.3, which outlines the contours of the immigration appellate process. 103.3(a)(iv) helpfully defines the “AAU” (a.k.a. “AAO”) as “the appellate body which considers cases under the appellate jurisdiction of the Associate Commisioner, Examinations.” Okay—so far, so well-regulated. But what kinds of cases?

That’s also pretty straightforward. 103.3(a)(ii) states that “[d]ecisions under the appellate jurisdiction of the Associate Commissioner, Examinations, are listed in Sec. 103.1(f)(2) of this part.”

Awesome! I love it when federal regulations are this elegantly organized. So there’s a whole section that defines exactly which cases the AAO has authority over. Good to know. Let’s take a look at §103.1(f)(2), shall we?

No, seriously. Take a look. It won’t take long, and you’re never going to believe this next part if you don’t.

There is no Section 103.1(f)(2). It seems someone idly plucked the AAO’s entire reason to live from the regulatory shelf, played with it for a few minutes, and forgot to put it back where it belonged.

Seriously, I’m pretty sure that’s what happened. You can find the pre-2004 version, which lovingly details some 55 different types of cases over which the AAO has appellate authority, here. As far as I can tell, however, this section was never restored or otherwise added to any other regulatory provision once it was removed.³

What does all of this mean? Simply put, the AAO has gone rogue. As of this month’s anniversary of the last amendment, it hasn’t had proper legal authority to review any given case for at least five years.

I know this may all seem unnecessarily fiddly and semantic, a sort of nerdly “gotcha” game. But I submit that this is a hugely significant problem. Subject-matter jurisdiction is one of the most essential foundations of a functioning appellate system, especially on the federal level. A court that doesn’t even know what kinds of cases it’s permitted to consider is really no court at all.

I’ve been poking around to see if anyone more important than myself has actually noticed this astonishing loophole, and the evidence is inconclusive. The 2009 version of the official CIS Adjudicator’s Field Manual still cites the missing regulation (see Sec. 10.8) in its brief discussion of which cases may be appealed to the AAO. The CIS website still enumerates a long list of issues over which the AAO has jurisdiction which appears to be drawn from the missing provision. And the instructions which accompany the I-290B form used to file appeals before the AAO unhelpfully state only that the AAO may review decisions arising from any immigration proceeding “in which the Board of Immigration Appeals does not have appellate jurisdiction.”

If this broad assertion of jurisdiction by exclusion suggests a sort of implicit recognition of the simple fact that the AAO has no enumerated authority whatsoever, the recent ombudsman’s statement quoted above manages to wiggle around the whole issue entirely:

“The AAO exercises appellate jurisdiction over the matters described in 8 C.F.R. § 103.1(f)(3)(iii) (as in effect on February 28, 2003)….”

Oh, c’mon. Maybe that was the best they could do under the circumstances, but it’s still undeniably sneaky. If you believe that one, try this:

It is clearly apparent that the Framers of the U.S. Constitution did not intend for women to enjoy the right to vote, and did not provide for any possibility that they would be permitted to do so. There is, therefore, absolutely no Constitutional support for the proposition that women have been granted the franchise. (See Constitution of the United States of America, as in effect August 17, 1920).

See how that works?

I wish I were missing something here, but I am left with three inescapable conclusions:

(1) The AAO has been legally invalid since 2004, but

(2) We’re stuck with it anyway, and don’t really have any choice but to continue to bring our cases before it, because

(3) No one cares.

1. Well, maybe not exactly, but more on that in a minute… [↩]
2. This has to be the most expensive appellate filing fee in the Western world. By way of comparison, this is exactly $135 more than the filing fee for a typical immigration appeal before the First Circuit Court of Appeals [PDF] and a full $285 more than the fee for initial docketing of a petition for writ of certiorari to the U. S. Supreme Court [PDF]. [↩]
3. To be fair, it appears that there is a possibility that the AAO’s appellate authority was taken out of the regulations and “delegated” to the AAO by DHS pursuant to the powers granted it by 103.1(a) in something referenced in several sources as “Delegation Memo 0150.” However, this memo is not available to the general public (I’ve looked), and my position remains that appellants should be properly placed on notice of the AAO’s appellate jurisdiction through regulatory means, especially for as long as 103.3(a)(ii) continues to state that this information is actually available in the regulations and CIS’s official secondary sources continue to reference this defunct provision. Federal regulations are subject to public review and criticism—the so-called “notice and comment” rulemaking process so beloved of administrative lawyers. “We have jurisdiction over your case, and we have this secret internal memo to prove it” is the kind of thing one might reasonably expect to hear before being exiled to a Siberian gulag. If DHS has actually redefined the AAO through such a memo (and, again, there’s really no way for me to know if they have actually done so) apart from the regulatory process, I would submit that this represents an attitude to administrative lawmaking that has no place in a functioning constitutional democracy. [↩]

Immigration Appeals, stupid laws

“…the foreigner, and the fatherless, and the widow, who are within your gates.” —Deuteronomy 16:14

There are more than a half-dozen Bible verses which extend equal status to immigrants and widows in the same breath, and it logically follows that the authors intended for each group to be protected and respected equally.¹

This month has seen justice for both the foreigner and the widow in relation to appellate topics previously covered in this space:

(1) Attorney General Eric Holder formally vacated [PDF] former AG Michael Mukasey’s midnight denial of immigrant’s rights to counsel in removal proceedings [PDF] and has ordered the DOJ to look into reasonable, Constitutionally-friendly guidelines on this front.

(2) DHS Secretary Janet Napolitano has punted the “widow penalty” issue for the time being by placing a two-year moratorium on the deportation of widow(er)s and any children under 18 who may otherwise be adversely affected by this penalty. This is a fair solution, and represents about the most that she could do independent of Congress or the courts. As I have previously noted, two years should be enough time to give Congress and/or the Supreme Court to do something about this, and I am now fairly confident that justice will be done on at least one of these fronts within the next year.

1. Not that anyone at FAIR particularly cares what the Bible actually says. There’s really no looking back once you’ve been certified as a hate group, after all. [↩]

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