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.

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

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

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.

I happened to be in the Appeals Court the morning that they took up this unusually amusing case. Here are just a couple of instructive excerpts taken verbatim from my notebook:

JUSTICE GREEN (within first minute of argument): “I don’t know why this case is here.”

JUSTICE BROWN (waving his arms around umpire-style): “The Commonwealth wins on all five issues here. All five! That’s called a shutout. The Commonwealth has nailed it.”

It’s not often that appellate judges tell you exactly how they’re going to dispose of a case during the course of oral arguments, let alone within the first sixty seconds. Usually cases in which the outcome will be so obvious are relegated to the purgatory of the appropriately-named “non-argument list,” and the parties never have a chance to show up to explain themselves before an opinion issues. Having actually seen this one for myself, however, I have to suspect that the Court only put it on the calendar for the same reason that Steven Hawking might want to keep a book of easy Soduku puzzles handy on the coffee table: It’s just good, clean, mindless fun.

As an appeal, Harrington had only one reason to live: a District Court judge with a grudge against the current state of the Commonwealth’s ridiculous disorderly conduct statute which dates back to his time as a Massachusetts state representative.¹

In the course of a totally routine disorderly conduct case, the judge took it upon himself to try to convince the Court of Appeals that it should hold the current interpretation of the statute² unconstitutional and strictly limit the law to its face.

Harrington came to the Court not as a direct appeal but via something which, the Court snidely notes, “ostensibly” took the form of a “reported question” under Mass.R.Crim.Pro 34. (This is a fun-but-rarely-used vehicle by which trial courts may send up questions of law which are “so important or doubtful” as to require resolution by the Appeals Court before proceeding to trial.) But the Court is not even convinced that there is a “question” in Harrington at all, and they’ve certainly got a point.

Three of them, actually:

1) The District Court was asking the Appeals Court to overrule the Supreme Judicial Court. This not only directly violated Robert Heinlein’s familiar proscription against teaching pigs to sing³, but may in fact have actually been more pointless than that.⁴

It’s just Not How Things Are Done, is what I’m trying to say. Lower appellate courts can’t overrule higher ones; they just can’t, no more than a lowly squaddie may draw up detailed battle plans, a state governor set federal immigration policy, or an older sibling overrule a curfew set by the head of the household. Even the courts have a chain of command, and it has to be followed just as strictly as any other.

2) The Appeals Court has not seen the inside of a college dorm room for many, many years. To my knowledge, none of them own beanbag chairs, hackeysacks, or drug rugs, and they certainly do not want to sit up late with you for academic bull sessions while drinking Jolt Cola and listening to John Zorn records. If they are going to strike down a statute⁵, they’re going to have to have an actual appeal based upon an actual start-to-finish case in front of them to hang their actual decision on. They’ve already got more than enough actual appeals from actual cases to deal with, thank you very much, and they just don’t have time for your what-ifs.

3) The legislature has amended this statute twice since the Commonwealth’s highest court handed down Alegeta, and the law generally presumes the Great and General Court are all total SJC fanboys/girls who spend their weekends updating their pocket parts. If our elected representatives had believed that there was something wrong with the way that our unelected judicial gatekeepers had interpreted the statute, either of those amendments could have done something about this. But they didn’t.

1. I totally agree on this, but I’ve already hated on this statute more than once in this space and I’ll try to restrain myself now.
2. Following the SJC’s opinion in Alegata v. Commonwealth, 353 Mass. 287 [1967], this law now officially includes a definition of “disorderly” which is found nowhere in the statute
3. ”…it wastes your time and annoys the pig.”
4. Maybe I’ve just read Charlotte’s Web one too many times, but I have to believe that there might be a particularly talented, irresistably anthropromorphic, pig out there somewhere who could actually be taught to sing.
5. Which, on balance, they probably won’t anyway

I’m just going to voice my respectful dissent on this right up front. This is all just one kid’s opinion, but whatever else this decision may be, it is not “the most dangerous libel decision in decades.” It has not “turned libel law on its head,” it is not a “bizarre twist,” it has not held that “truth is no longer an absolute defense” to libel, and it doesn’t “threaten to overturn” anything.

The boring truth is that in Noonan the First Circuit has merely glancingly condoned (as opposed to having definitively upheld) a highly questionable state law on reasonable procedural grounds. Somehow all of the critics of this opinion seem to have lost sight of the fact that the standard here was not that which would have been used had the court reviewed the case on the merits after trial, but only in terms of a motion for summary judgment: was there a “triable issue of fact” under existing Massachusetts law? Sadly, there was.

This is not to say that I agree with the outcome: At the end of the day, I’m a public-interest attorney, a progressive voter, an ACLU member, and an uncompromising defender and fan of the First Amendment. But this is an appellate, and not a First Amendment, blawg, so the following analysis is conducted accordingly.

The facts are far simpler than the law, so let’s begin at the beginning. Plaintiff Noonan was a Staples employee who engaged in some shady accounting (not a lot, but enough to get noticed) on his expense accounts and such during the course of his employment there. Staples caught Noonan, fired him, and made an example of him in a mass email sent out to all 1,500 of his former colleagues in the company’s North American division. Noonan did not seriously contend that the email as published was not true, but sued Staples anyway on the theory that it was libelous. In Noonan, the First Circuit (Tourella, J.) has agreed that it is possible that a reasonable person could have found the email to have been libel under Massachusetts law, and has remanded to the district court for further proceedings.

This, of course, is the part where every American law school graduate’s head explodes. How could a statement which is empirically true ever constitute libel? Truth is the “absolute defense” to libel, right? Yes. Yes, it is. Everywhere but the Commonwealth.

That’s right: You’re in the jungle now. Welcome to the jungle.

Let’s get to the law:

American libel law as we know it was invented in 1735 when John Peter Zenger was tried on charges of  ”seditious libel” arising from certain articles his newspaper had published regarding one William Cosby, the sitting colonial governor of New York. (One might assume, if one is too lazy to go looking for it, that the objectionable content had something to do with Mr. Cosby’s tastelessly colorful sweaters and unholy love of Jell-O.) Zenger’s attorney argued to the jury that no matter how scandalous the content of his publication may have been, Zenger simply should not be found guilty of libel because it was all true. The jury agreed to effectively ignore the law on Zenger’s behalf, making him the first—and perhaps still the most famous—American beneficiary of an act of jury nullification.

Strange as it seems today, this was an unprecedented development in Western libel jurisprudence. Our British colonial overlords had no problem spelling “libel” without the letters L-I-E, and it was a basic point of law that truthful statements could be libelous if made with “actual malice.” The American concept of truth as an “absolute defense” to libel can be directly traced to the popular belief in the justice of Zenger’s acquittal, and nearly every American jurisdiction has adopted it.

Every American jurisdiction but one. Cue the Mass Confusion.

Massachusetts has never recognized an “absolute” truth-based defense to libel.  It has instead effectively carried on the legacy of the colonial English law in G. L. c. 231, Section 92, under which truthful statements made with “actual malice” (in the “popular sense” of “hatred and ill-will“) may still constitute libel. Given that Sec. 92 (first codified in 1855; more on the history of the statute in the 1903 case which affirmed it) is still technically valid, the First’s holding in Noonan that summary judgment in the trial court was improperly granted because there was still an open question under Massachusetts law as to the “actual malice” of Staples’s actions was not really all that radical.

To be fair, not all of the confusion here is Mass-based. The Supreme Court’s landmark 1964 decision in New York Times Co. v. Sullivan provided a new Constitutional definition for the common-law phrase “actual malice” in libel cases involving public figures. Under this standard, “actual malice” may only be found in statements made about public figures if these statements were made either with actual knowledge that the statement was false or with “reckless disregard” as to whether or not the statement was true. (Libel: Barack Obama is a “radical Muslim” who “pals around with terrorists.” Not libel: George W. Bush is a convicted drunk driver. See how that works?) So there’s inevitably going to be some confusion now between what all First Amendment lawyers know about “actual malice” in the Sullivan context, and the actual common-law definition which still controls for the purpose of the “actual malice” exception to the truth defense against claims of libel involving private individuals in Massachusetts.

Noonan was not, of course, a public figure at the time that the email went out, and no one is arguing that he should be viewed as one now. Although the SJC casually suggested more than three decades ago that it may someday address the Constitutionality of truth-based libel suits involving private persons, there has never been a direct ruling on this issue. (As far as I’m aware, the closest they’ve come since then was in a case involving my favorite series of budget travel guides and an Israeli hostelier with a groping problem, and that decision held for the defendants only because the plaintiff was a private person who happened to be involved in a matter of nominal “public concern.”) So for as stupid and anachronistic and un-American as this statute undoubtedly is, the “actual malice” bit which ultimately controls here has never been directly challenged nor struck down by a state court as it pertains to private individuals, and it is still therefore the law of the Commonwealth. Not great (or even good) law, but it’s still the law. (Now that the case has been remanded for further proceedings, it would be nice if the federal district court would be kind enough to certify this mess to the SJC for review of the Constitutionality of Sec. 92, but I really don’t see that happening.)

In light of all of this, the most surprising thing to come out of this whole decision, for me, anyway, is that Staples’s expensive appellate counsel—from a notable national law firm which will remain unnamed in the interest of keeping myself from the receiving end of my very own truth-based libel suit—appears to have dropped the Constitutional ball:

In the rehearing proceedings, Staples has suggested that this exception to the truth defense may never be constitutional. But this argument is not developed now and was not raised in the initial briefing. Accordingly, we do not consider it at this time.

Of course, Justice Tourella was not so much surprised as relieved, as blaming counsel for failing to properly raise the issue gave him an easy out from having to address the obvious Constitutional questions at hand. (Like most appellate courts, the First can dodge Constitutional bullets faster than Neo on amphetemines.)

Which brings me to my final point.

The First Circuit is a pretty reliably conservative collection of judges. As a body, they have spent many lovely afternoons in Boston (as well as their summer home two weeks out of the year in Puerto Rico) wandering the pleasant, well-worn contours of the path of least resistance, taking plenty of time to savor the sweet scent of that peculiar breed of American beauty we call stare decisis along the way. If you’re looking for an appellate court that will spontaneously raise issues that have not been properly brought before it just to strike down a state law as un-Constitutional, get thee to the crazy hippies of the Ninth. I hear those dudes will do anything.

Since it’s not often that a motion for a new trial makes headlines, I thought that this would be a good time to address questions which I am often asked in connection with vacating convictions in Massachusetts. I should note up front that while practitioners typically refer to this process as a “motion for new trial,” these motions are also legally identical to motions to withdraw a guilty plea, and are often collectively referred to as “motions to vacate.” I will be using this last term throughout this post not only because it is somewhat simpler, but also because I like the sound of it.

What is a motion to vacate?

Rule 30(b) of the Massachusetts Rules of Criminal Procedure states that judges may vacate prior convictions “at any time” upon a showing that “justice may not have been done” in the prior proceedings. This includes convictions arising either from trials or guilty pleas.

If turning back the clock to rectify a situation in which “justice may not have been done” sounds like a job for Superman—or, if Mr. Kent is otherwise engaged, perhaps Matt Murdock—you can think of Rule 30(b) as a Massachusetts judge’s own personal phone booth. It bestows the courts with extraordinary powers, which is exactly why they generally choose to exercise them only in extraordinary circumstances.

How is a motion to vacate different from an appeal?

Motions to vacate differ from direct appeals in two significant ways:

1) Timing.  Notice of direct appeal from a criminal conviction must be brought within 30 days of the date of conviction, although late appeals may be permitted under certain circumstances. Under Rule 30(b), however, a motion to vacate a conviction may be brought “at any time.” It is not uncommon to see these motions brought decades or more after the original conviction, usually when the defendant is facing serious collateral consequences such as deportation or enhanced sentencing in a subsequent charge.

2) Content. New evidence may not be raised on direct appeal, as all claims made on appeal must be supported by the settled record in the trial court. A motion for new trial presents an opportunity to expand the record with information which did not appear in prior proceedings. This could be exculpatory (newly-available eyewitness testimony, new scientific evidence, etc.) or, more commonly, evidence as to elements of the trial (usually, but not always, attorney performance) which are not immediately apparent from the face of the record.

What does it take to vacate a conviction?

Grounds for a successful motion to vacate can vary widely, and you should consult an attorney who is experienced with these unique and highly technical motions if you believe that “justice may not have been done” in any criminal proceeding. Possible reasons for vacating convictions will depend entirely on the circumstances of your case, but they may include deficiencies in the plea hearing, problems at trial (including ineffective assistance of trial counsel), and/or newly-available exculpatory evidence.

Dude, I was totally high when I pled to that. Shouldn’t I get another chance?

Maybe, but probably not.

Judges are required to ask defendants a series of questions (known as the “plea colloquy”) under oath prior to accepting a plea to be sure that they haven’t used any drugs or alcohol that day and aren’t on any medication that would otherwise affect their judgment before a guilty plea may enter, and defendants are generally going to be stuck with the responses they provided at the time. Of course, the question itself isn’t especially useful: if you really were under the influence to a degree that would concern the court, you may not have been especially well-equipped to know whether or not your judgment was  impaired.  (Or, for that matter, that you were not actually engaged in a friendly conversation with, say, an affable black-robed porcupine about late-’70s modal jazz.)

You can see the problem here: if voluntary intoxication were proper grounds for withdrawing a guilty plea, our courts would be full of criminal defendants hopped up on their substances of choice hoping to be able to come back and get a better deal after the case was closed and the evidence disposed of.

That said, judges are obligated to determine that defendants are fully competent to enter a plea and know exactly what they are doing before accepting the plea and permitting it to become a conviction. Although I’m not aware of any reported Massachusetts case which has allowed a conviction to be vacated on these grounds, it is certainly possible that a judge who failed to notice a defendant’s state of obvious intoxication at the time of the plea would not be faulted for later permitting this plea to be withdrawn.

I am a foreign national who is about to be deported and permanently separated from my family in the U.S. because of an old, relatively minor, conviction. Can’t the judge consider this fact?

No. Although you can certainly mention it, Massachusetts courts are not simply permitted to explicitly take so-called “collateral consequences” into account when ruling on motions to vacate. And you wouldn’t want them to, anyway: No matter how the relevant state law defines it, immigration authorities will only consider a conviction to be officially vacated for their purposes if the record demonstrates that this decision was made on legal or Constitutional grounds. This is an unfortunate reality of our system, and only one more example of how it occasionally permits our laws to preclude the administration of justice.

However, this is not to say that it is not possible to clear a conviction when it is the only thing standing between you and your otherwise-lawful presence in the United States. In fact, there is sometimes an extra option available to those facing deportation for reopening an old plea that would not be available for U.S. citizens. You should consult an attorney immediately if you are currently facing immigration consequences from a criminal conviction.

How often are these motions granted?

Motions to vacate are, as they say, “disfavored.” There is generally a presumption in favor of the validity of any given conviction, and the burden is on the defendant to overcome this presumption. If this seems like a high standard, it is this way by design in favor of the basic principle that a functioning justice system requires some measure of finality in its criminal convictions.

This principle is especially true in regard to plea hearings in which criminal defendants have freely, knowingly, and voluntarily waived their Constitutional rights to have the evidence against them proven beyond a reasonable doubt and admitted their guilt. Given that any motion to withdraw such a plea must be decided by the same judge who originally accepted it, many judges will be skeptical of any claim that there was something wrong with the plea hearing.

This is not to say that it is impossible to win such motions, however, and I am proud to have been able to obtain favorable results on behalf of many of my clients.

Is vacating a conviction different from sealing/expunging a conviction?

Yes. Although Massachusetts has no provision for “expunging” a conviction in the way that other states permit,  an individual whose records have been  “sealed” by the court may truthfully inform anyone who needs to know that they do not have any criminal convictions. However, these records still technically exist, and may still be accessed by probation, immigration and other law enforcement authorities (although not potential employers, schools, etc.) for certain purposes. Also, records may not be sealed any sooner than 10 years after a misdemeanor conviction, or 15 years after a felony. (The Commonwealth has pretty much the harshest laws in the country in this area; as usual, I blame our theocratically-inclined forefathers.) If this time has already passed, however, sealing old convictions is still almost certainly going to be easier than vacating them.

Although vacating a conviction may ultimately remove it from one’s record entirely, a defendant may also be facing an entirely new set of problems once a motion to vacate is granted—more on which further below.

What happens after a motion to vacate is granted?

One of the most important questions that a defendant should ask himself and/or his attorney before filing a motion to vacate should not be “What if I lose this?”, but rather “What if I win?”

It is a common misconception that a “vacated” conviction is simply cleared from a defendant’s record with no further proceedings. While this may be true in some cases, it is often not quite so simple.

Once you have successfully litigated a motion to vacate, the case is treated as if your plea or trial had never occurred. So the good news is pretty good:  you get a chance for a new plea or trial. Of course, the bad news may also be that you… have a chance for a new plea or trial. Since prosecutors are understandably reluctant (or, in many cases, unable) to go forward with ancient cases in which documents, witnesses, and other evidence have become unavailable, your record may end up entirely cleared. If the conviction was fairly recent, however, the Commonwealth may be happy to offer you a new, substantially-similar plea bargain, or to proceed to re-try you.

Would you mind looking at my conviction to see if there’s anything that might be done to seal or vacate it?

Not at all! I am fully experienced and comfortable with these issues, and you are welcome to contact me any time to schedule a free consultation. If I feel that there is a reasonable possibility that your conviction may be sealed or vacated, it will be my pleasure to represent you in this matter.

(1) Decriminalization is not legalization. All together now, kids: No one may lawfully possess marijuana in the Commonwealth of Massachusetts, any more than they may lawfully ignore the speed limit or park in a handicapped parking space.  (If you’re already interested in the subject enough to read this, I’m pretty sure that you already know that, but it’s a good place to start.) In fact, as far as I am aware, marijuana has never been formally legalized anywhere in the world. (Even the Netherlands officially only “tolerates” marijuana possession, although perhaps somewhat more enthusiastically than Sarah Palin tolerates the gays.) Possession of an ounce or under is now punishable by a $100 fine—less than most traffic tickets—rather than the previous minimum six months of administrative probation, and civil citations issued under this provision will not appear on an individual’s criminal record. Current trafficking and distribution statutes remain as they were, leaving most dealers in urban areas subject to the two-year mandatory minimum for intent to distribute in a school zone. Offenders under 18 will be required to complete a drug education class within a year or face a $1,000 fine and the possibility of delinquincy proceedings in Juvenile Court. (I feel further compelled to remind you that driving under the influence of marijuana [or anything else] is also still just as bad an idea today as it was yesterday.)

(2) Contest it! Unless you really can’t make time to go to court, it will almost certainly be worth scheduling and showing up to a clerk-magistrate’s hearing to contest the citation. Keeping in mind that the police report will likely contain little more than a basic description of what was seized (as well the usual allusion to the officer’s “training and experience”), that the arresting officer will not be required to appear, and that any drugs seized will almost certainly never be sent out for testing at the state crime lab, you may well be able to convince the clerk-magistrate that the record doesn’t meet the “preponderance of the evidence” standard which is required for civil citations to issue. All clerk-magistrates run their own little private duchies, however, so I would expect the mileage on this argument to vary widely between district courts.

(2)(a) In a possible oversight, the new statute makes no provision for an appeal from the clerk-magistrate’s decision. (Smooth one, Soros!) In a helpful interpretative memo (PDF), District Court Chief Justice Lynda Connolly has suggested that the only possibility for review of an adverse finding under the new law would therefore be a request for certiori (i.e., discretionary review) in your friendly neighborhood Superior Court. This is a particularly fascinating aspect of the new law, and I’ll be interested to see how it plays out.

(2)(b) Then again, if you’re the kind of person who leaves room in your monthly budget for recreational drugs, you can probably afford to just step up and pay the fine already. Just pretend that you’re paying the tax that any objectively rational democratic society should have already levied on soft drugs. The Commonwealth could certainly use the money.

(3) The Commonwealth may–and almost certainly will–still criminalize public use of marijuana. Local municipalities are already scrambling to ensure that Snoop fans do not live out their dreams of rollin’ down the street smokin’ indo, no matter where their minds and/or money may be. Fair enough.

(4) Search and seizure. The possession of marijuana will almost certainly still be grounds for police to stop and search you and/or your vehicle, since marijuana is itself involved in a number of crimes beyond possession—i.e., possession of more than one ounce, distribution, driving under the influence—for which there may be probable cause for arrest. That’s my take on it, anyway; again, there are still plenty of possibilities here for interesting loopholes.

(4)(a) Identification. Speaking of loopholes: Once stopped by police, the new law seems to provide no requirement that individuals in possession of marijuana be required to identify themselves, nor any authority for police to detain them if they do not. I’m not really totally sure about this one, legally, but it certainly seems to prevent a pretty significant potential enforcement problems, especially since the new law establishes different penalties for juveniles and adults.

“For preventing disorders, arising in several places within this jurisdiction by reason of some still observing such festivals as were superstitiously kept in other communities, to the great dishonor of God and offense of others: it is therefore ordered by this court and the authority thereof that whosoever shall be found observing any such day as Christmas or the like, either by forbearing of labor, feasting, or any other way, upon any such account as aforesaid, every such person so offending shall pay for every such offence five shilling as a fine to the county.”

From the records of the General Court,
Massachusetts Bay Colony
May 11, 1659

Buried right in the middle of the steaming dog’s breakfast of old-timey criminality that is G.L.c. 272 Sec. 53 is the quaint classification of “persons who with offensive or disorderly acts or language accost and annoy members of the opposite sex.” Although not as widely employed as the “disorderly persons” provision, this may well be one of the stupidest criminal charges in the Mass. General Laws—if not any state criminal code—now in regular active use.

At worst, behavior sufficient to constitute “accosting and annoying” is pretty much just what it sounds like: criminal sexual harassment. There are only about a half-dozen appellate cases interpreting this, but it amounts to (1) “offensive or disorderly conduct” (2) intentionally directed at (3) a member of the opposite sex.

Such conduct can range (the following are all actual reported cases) from the truly scary (i.e., posting super-creepy “Wanted” posters of your ex-girlfriend around your high school) to the understandably irritating (unwanted hugs, backrubs, and verbal come-ons from a coworker which could have been addressed under existing civil sexual harrassment law), to old-fashioned indecent exposure to very-nearly victimless crimes (singing showtunes in the general direction of a teenage girl while leering at her).  I’m not saying that most of these offenders should have gone entirely unpunished, but only that there has to have been a more Constitutional—and slightly less Puritanical—way to charge them.

There is an obvious potential First Amendment problem automatically raised in any law which permits criminal prosecution based solely on non-threatening speech toward another. But I can acknowledge that this is more of an “as applied” challenge, given that the majority of speech for which someone may be charged under this statute is probably not protected by the First Amendment.

I am far more concerned that there is a really serious inherent equal protection violation built right into the statute for as long as the “opposite sex” element of Sec. 53 remains.

Here’s how it works:

I don’t know about you, but I, dear reader, have been accosted and annoyed by a member of the same sex. Maybe it’s my boyish good looks, my full head of hair, or the femme-y, Ira Glass-y, nasal I slip into when I start to get excited and run my words together, but there it is. I think “annoyed” is really the right word; I really don’t care, and it’s nothing to call the police over.

But you see the problem: Even if I wanted to, I couldn’t! There’s no crime! By criminalizing what I will call from this point forward “sexual harrassment” of the opposite sex, our legislature has by exclusion condoned and permitted sexual harrassment of the same sex at will throughout the Commonwealth. Obviously, this was not an intentional outcome, but only a natural consequence of keeping a 400-year-old statute on the books.

Public admissions and/or displays of homosexuality would have been wholly unthinkable to the Puritans of the Massachusetts Bay Colony. Women, as the “weaker sex,” required the vigilant oversight of their male providers and protectors. This is the world into which Sec. 53 was born, and the world in which it should have died. Instead, it fell on some ice.

As you may have heard, the gays have been a’marryin’ in healthy numbers here in the Commonwealth in the five years since the SJC affirmed everyone’s right to marry in Goodridge v. Dept of Public Health. As a true believer in stupid old liberal cliches like the right to privacy and equal protection under the law–not to mention that hippie pabulum about how maybe love really is all you need–I’m willing to bravely face the open threat that this ruling no doubt continues to pose to the domestic tranquility I now enjoy with my own heterosexual life partner. (We’ve made it so far, anyway…)

My point, however, is that I was particularly struck by the following observation in Justice Greaney’s Goodridge concurrence:

A classification may be gender based whether or not the challenged government action apportions benefits or burdens uniformly along gender lines. This is so because constitutional protections extend to individuals and not to categories of people.

While I must repeat again my unconditional support for equal marriage rights, I am compelled to point out that the above logic does compel the conclusion that Sec. 53 may be the only law currently in force in the United States which unfairly burdens heterosexuals. Simply put, heterosexual victims of opposite-sex advances may receive the full protection of our law enforcement system, while their counterparts on the receiving end of same-sex advances may not. Or, as I recently wrote in far more words:

The accosting and annoying provision of [Sec. 53] as it now reads is impermissibly and unconstitutionally underinclusive, in that it excuses an entire potential class of perpetrators while concurrently failing to protect their victims solely on the basis of their respective genders. As such, this provision’s strikingly anachronistic, unmistakably paternalistic, and quintessentially Puritanical language and intent are outshone only by the luminous glare of its arrant unconstitutionality.

I am not the first to make this argument, and I expect that I will not be the last. At the very least, the phrase “of the opposite sex” needs to go. At best, I’d like to see the entire “accost and annoy” provision removed if and when the legislature ever gets around to redoing Sec. 53 as fully and comprehensively as the SJC has asked them to.