On Remand

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Latest Podcast Episode:

Interview with Professor Steven Morrison on the Right to Assembly under the First Amendment

Visiting Professor of Law, New England Law | Boston


We were joined by Professor Steven Morrison, a Visiting Professor of Law at New England Law | Boston, to discuss his two latest pieces of scholarship. The first entitled “Brandenburg for Groups,” which seeks to recover the right to assembly as a core First Amendment right and proposes a test that would protect group activity. The second is entitled “The Membership Crime Origin of the First Amendment” and provides a historical overview of the World War 1 era during which time the First Amendment protected the right to assembly the same as it protected speech

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Professor Morrisons’s article first entitled “Brandenburg for Groups” can be found here. It will also be published in the Lewis & Clark Law Review To learn more about their publication, click here.

Further, Professor Morrisons’s second article entitled “Brandenburg for Groups” can be found here.

Latest Featured Article:

Fact and Fiction

Book Review of the Honorable Michael Ponsor’s book A Hanging Judge

Tigran W. Eldred

Shortly after the millennium, United States District Court Judge Michael Ponsor presided over the first death penalty trial to take place in Massachusetts in half a century. That case, as many will recall, remains a testament to the legal and moral complexity of the justice system’s long struggle with capital punishment. Dubbed the “Angel of Death,” the defendant, thirty-year old nurse Kristen Gilbert, was accused of overdosing her patients with epinephrine at a veteran’s hospital in North Hampton. Gilbert’s motive, according to the prosecutors, was to bring her into contact with her paramour, a security guard at the hospital, and to create medical emergencies that generated the type of excitement she craved. After more than 250 pretrial motions and four months of trial—consisting of more than seventy witnesses and complicated expert and scientific testimony, at a cost of over $1.5 million—Gilbert was convicted of multiple counts of murder and attempted murder. The penalty phase, which involved gut-wrenching testimony from family members on both sides, ended with the jury unable to reach a unanimous verdict on whether to impose death. As a result, and as required by federal law, Ponsor sentenced Gilbert to life in prison without the possibility of parole.

More than a decade later, Ponsor’s first novel, The Hanging Judge, has just been published. The protagonist is David Norcross, a federal judge in western Massachusetts who faces the region’s first death penalty case in more than fifty years. While Ponsor disclaims any similarity between the novel and any real person, or any aspect of the Gilbert case (p. ix–x), the parallels are hard to miss. Indeed, Ponsor’s decades of experience presiding over criminal cases, especially the Gilbert saga, infuses his writing with the “heft of authenticity” for which he has been justly commended. Continuing in this vein, this review considers how The Hanging Judge contributes meaningful insights from a seasoned jurist into crime, its adjudication, and America’s relationship with the death penalty.

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Latest Featured Massachusetts Criminal Digest Case Summary:

Commonwealth v. Horne

466 Mass. 440 (2013)

The defendant, Daniel Horne, was convicted by a Superior Court jury of second-degree murder, possession of ammunition without proper firearm identification (“FID”), and two separate counts of unlicensed carrying of a rifle in an unpermitted area. The defendant appealed, arguing for reversal of his convictions due to the numerous errors that occurred at trial. The Supreme Judicial Court of Massachusetts (“SJC”) vacated and set aside the conviction of second-degree murder, but affirmed the other convictions.

On October 16, 2009, the defendant’s television was removed from his apartment in Springfield Massachusetts. The defendant suspected that the individual who took his television was Joseph Darco. On October 17, 2009, Darco attended a birthday party at the apartment where the victim, nineteen-year-old Brittany Perez, resided. This apartment was on the first floor of a building and a few houses away from the defendant’s apartment. Shortly after sunset, a party guest observed the defendant holding a gun after hearing someone shout, “I want my TV.”

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Latest from the Faculty Blog:

Privacy and the Surveillance State

Lawrence Friedman

According to a recent New York Times/CBS News poll, Americans by a large margin favor installing video surveillance devices in public places in order to provide greater security, with 78 percent of participants saying such surveillance is a good idea.

The poll was taken in the wake of the bombings in Boston on Marathon Monday and the results likely reflect the very real anxiety that such horrific events can produce. The positive reaction to greater surveillance is natural and understandable. But that does not necessarily mean that it will lead to sound public policy.

It remains that it is always easier to give away someone else’s privacy interests, especially hypothetically. Most people cannot imagine ever being the target of government surveillance–for them, the potentially ubiquitous video recording devices will be aimed at someone else.

That is fine as far as it goes, but the fact is that, under the Fourth Amendment doctrine for determining whether you have a protectable privacy right as against the government, the Supreme Court has repeatedly said that any expectation of privacy you assert must be objectively reasonable. We all do lots of things in public that we assume to be private–like talking on cell phones, text messaging, and even having a conversation with the person walking next to you, and believe the assumption to be reasonable because we do not really expect anyone nearby actually to listen to what we are saying or texting. But the fact that someone could do so, according to the Court, eliminates any true expectation of privacy. And even if that were not the case, could we say any of these communications reasonably should be deemed private when the government has the capacity to record and review all of them?

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