Article Preview: Why Is Your Grass Greener than Mine?: The Need for Legal Reform to Combat Gender Discrimination in Professional Sports

Sports arose in the primitive era as activities used to train warriors for battle. They continue to this day, though for different purposes: as a form of recreation, as a profession, and as a form of relaxation for spectators watching them. While women who play sports have gradually gained some acceptance in society, they experience gender discrimination and inequality compared to their male counterparts, in the form of lower wages, fewer endorsements, and less media coverage. This is especially true in professional sports. Tanya Dennis, the author of Why Is Your Grass Greener than Mine?: The Need for Legal Reform to Combat Gender Discrimination in Professional Sports, proposes a new statute (the “Professional Sports Act of 2015”), which provides women protection against gender discrimination in professional sports, and explains why the current state of the law is not adequate.

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Article Preview: One Step Forward Two Steps Back: The SJC’s Incorrect Decision in Commonwealth v. Gelfgatt Deprives Technology Users of Their Constitutional Rights

The Fifth Amendment of the United States Constitution protects individual criminal defendants against self-incrimination. However, as the world continues to develop at such a rapid pace and technology becomes synonymous with everyday life, Fifth Amendment protections become clouded. In 2014, the Massachusetts Supreme Judicial Court (“SJC”), in Commonwealth v. Galfgatt, significantly reduced Fifth Amendments protections by failing to extend these rights to the defendant, who was compelled to produce decryption keys encrypting mortgage schemes. Specifically, the SJC lowered the evidentiary burden of reasonable particularity in its forgone conclusion analysis. Additionally, the SJC failed to apply Article 12 of the Massachusetts constitution in its analysis.

In her article, One Step Forward Two Steps Back: The SJC’s Incorrect Decision in Commonwealth v. Gelfgatt Deprives Technology Users of Their Constitutional Rights, author Lauren DeMatteo argues that the SJC incorrectly held that the government’s suspicion was enough proof to sidestep the defendant’s constitutional rights that the evidence was a forgone conclusion. Moreover, in reaching this result, the SJC lowered the government’s evidentiary burden to probable cause, while failing to apply an Article 12 analysis.

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Article Preview: The (Unfinished) Growth of the Juvenile Justice System

The juvenile justice system has made dramatic changes over the past thirty years. In three landmark cases, Roper v. Simmons, Graham v. Florida, and Miller v. Alabama, the Supreme Court recognized that juvenile offenders are different from adult offenders. These cases marked a shift in the way the judiciary understands the cognitive differences between juveniles and adults. However, despite advancements in the system, courts have failed to properly focus on the goal of rehabilitation.

In The (Unfinished) Growth of the Juvenile Justice System, which will be featured in the New England Law Review’s Volume 50, Issue 2, Conor Walsh argues that a focus on rehabilitation is the key to meaningful reform of the juvenile justice system. With high recidivism rates, courts have incorrectly focused on punishment, rather than rehabilitation, so juvenile offenders are not successfully assimilating back into society. With most juvenile offenders likely to re-enter society, rehabilitation is necessary to ensure a successful transition which, in turn, prevents recidivism. Moreover, because juveniles are more capable of change than adults, rehabilitation is a realistic possibility.

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Contributing Author Profile: Sonja West

Sonja R. West is an associate professor at the University of Georgia School of Law, which she joined in 2006. She teaches courses on Constitutional Law, Media Law, and the U.S. Supreme Court.

Sonja earned a B.A. in journalism and communication studies from the University of Iowa. Prior to attending law school, she worked as a reporter in the Midwest and Washington, D.C. She received her J.D. from the University of Chicago School of Law where she served as executive editor of the school’s Law Review.

Following law school, Sonja served as a judicial clerk for the 9th Circuit Court of Appeals, then for the U.S. Supreme Court under Justice John Paul Stevens. She later worked as an attorney for a Los Angeles law firm where she represented media clients on First Amendment and intellectual property issues. Prior to joining the Georgia law faculty, she taught as the Hugo Black Faculty Fellow at the University of Alabama School of Law.

Sonja’s work has been published in numerous law reviews, including the Harvard Law Review, the UCLA Law Review, and the Michigan Law Review. She has contributed articles concerning legal issues to Slate and Huffington Post. She frequently appears as a commentator for news media outlets, including The New York Times, the National Law Journal, MSNBC, Bloomberg News, The Guardian, NPR, and The Boston Globe.

Contributing Editor: Ryan Goodhue

Contributing Author Profile: Clay Calvert

Respected author and professor, Clay Calvert, will be a panelist at the New England Law Review’s Spring Symposium on February 11, 2016.

Professor Calvert earned his B.A. in Communication with distinction and Ph.D. in Communication from Stanford University. He also received his J.D. Order of the Coif from the University of the Pacific’s McGeorge School of Law. Professor Calvert is a member of the State Bar of California and the Bar of the Supreme Court of the United States.

Professor Calvert is currently a Professor and Brechner Eminent Scholar in Mass Communication at the University of Florida in Gainesville where he teaches both undergraduate and graduate-level courses on communications and media law issues. He also directs the Marion B. Brechner First Amendment Project.

Professor Calvert has authored or co-authored more than 120 published law journal articles on freedom of expression-related topics. He is co-author of the leading undergraduate media law textbook with Don R. Pember, Mass Media Law (19th Ed. McGraw-Hill), and is author of the book Voyeur Nation: Media, Privacy, and Peering in Modern Culture (Westview Press).

Contributing Editor: Aysha Warsi

Contributing Author Profile: Amy Gajda

Amy Gajda is currently an Associate Professor of Law at Tulane University Law School and is internationally recognized for her expertise in the areas of information privacy, media law, torts, and higher education law. In 2013 she was awarded the Felix Frankfurter Award for Distinguished Teaching, Tulane University Law School’s highest teaching honor. She has chaired the Association of American Law Schools’ Sections on Mass Communication and Defamation and Privacy. Ms. Gadja also led the Association for Education in Journalism and Mass Communication’s Law and Policy Division.

Prior to pursuing her law degree, Ms. Gadja worked as an award-winning television journalist and news anchor. She then went on to practice law in Washington, D.C. before beginning her teaching career.

Ms. Gadja’s works have been published in The New York Times, as well as a number of legal journals. She has also authored two books, The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press, published in 2015, and The Trials of Academe, published in 2009. Her research interests focus on the intersection of social law and journalism.

The New England Law Review is proud and honored to feature Amy Gajda as our keynote speaker, and her book The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press at our 2016 Spring Book Symposium.

Contributing Editor: Shannon Boyne

Contributing Author Profile: James Gallagher

James (“Jim”) Gallagher began his legal career as an Officer and Judge Advocate for the United States Marine Corps: serving as prosecutor, defense counsel, and Special Assistant U.S. Attorney for the District of Hawaii. From 2006 through 2009, Jim was involved in the prosecution and defense of more than 100 courts-martial. In 2008, Jim deployed to Karmah, Iraq as the Battalion Judge Advocate with 2d Battalion, 3d Marines in support of Operation Iraqi Freedom. In this role, Jim was the legal adviser to the Battalion’s Commanding Officer advising him on issues involving international law, rules of engagement, and laws of war. Jim was also responsible for monitoring detainee operations, military justice, investigations, claims adjudication for the Battalion and serving as a liaison to local Iraqi judicial figures.

Jim now practices at Davis, Malm & D’Agostine, P.C. in Boston. Jim’s practice encompasses advising individuals and businesses on a wide variety of business, employment and litigation issues. Jim represents clients in these issues in both state and federal courts and in front of multiple administrative bodies.

Jim is admitted for practice in Massachusetts, Pennsylvania, and in the U.S. District Courts for the District of Massachusetts and the Eastern District of Pennsylvania. Further, Jim has been named a Massachusetts Super Lawyers Rising Star from 2011–2014.

Jim is still active in the Marine Corps Reserve. Jim graduated from Marine Corps Command and Staff College in June. From 2009 through 2013, prior to attending school, Jim served as an instructor at the Naval Justice School in Newport, Rhode Island. Additionally, Jim is an adjunct professor at Suffolk University Law School where he teaches a course on Military Law.

Contributing Editor: Kasey Emmons

Mass. Crim. Dig.: Commonwealth v. Sheridan

Commonwealth v. Sheridan, 25 N.E.3d 875 (2015)

I. Facts

Early one morning, the defendant, Matthew J. Sheridan, was pulled over by Officer Sean Glennon for an unilluminated headlight. While Glennon was conducting the stop, Sheridan appeared nervous, his hands shaking as he “fumbled” around for his license and registration. A second officer, Scott Walker, was patrolling the area, stopped at the scene, and approached the passenger window. Walker looked in the car’s passenger window and saw a small plastic sandwich bag sticking out from under a t-shirt on the floor; the bag appeared to contain about one-ounce of marijuana.

Walker indicated the presence of marijuana to Glennon, who then ordered Sheridan out of the car; a pat frisk revealed a cell phone and $285.00 cash. Glennon handcuffed Sheridan and searched the car, recovering two additional bags of marijuana. Sheridan was transported to the police station where, during booking for possession with the intent to distribute marijuana, the officers seized the cell phone and cash. Glennon proceeded to read the text messages in the cell phone, some of which appeared to be orders to purchase marijuana.

II. Procedural History

Sheridan was charged with violating G.L. c. 94C, § 32, possession with the intent to distribute marijuana, and a civil motor vehicle infraction for the broken headlight. He filed a motion to suppress the marijuana and cell phone, including the text messages, because the officers lacked probable cause to search the vehicle. After an evidentiary hearing, the motion was denied because the judge found the officers were entitled to enter the vehicle and seize the marijuana. Further, the search of the cell phone was a search incident to arrest and the information would be allowed under the inevitable discovery doctrine. A single justice granted Sheridan’s application for an interlocutory appeal and the Supreme Judicial Court (SJC) granted his application for direct appellate review.

III. Question Presented

Whether, in light of the decriminalization of one-ounce or less of marijuana, the officers had probable cause to enter and search the vehicle to seize the marijuana?

IV. Reasoning and Analysis

On review of a motion to suppress, the SJC “accept[s] the judge’s subsidiary findings of fact absent clear error but conduct[s] an independent review of [the judge’s] ultimate findings and conclusions of law.” The automobile exception to the warrant requirement requires the police officer to have probable cause to believe that the vehicle contains contraband or evidence of a crime, and the inherent mobility of the vehicle on a public way renders getting a warrant impracticable.

In the case of marijuana, this exception is further narrowed by requiring the officer to have probable cause to believe that the vehicle contained a criminal amount of marijuana. In order to have probable cause, the officer must know enough of the facts and circumstances “‘to warrant a person of reasonable caution in believing’ the vehicle contained a criminal quantity of marijuana.” In this case, Glennon testified at the evidentiary hearing that the bag contained what appeared to be “about” one-ounce of marijuana, a noncriminal quantity of marijuana that would not give rise to probable cause. Even in conjunction with Sheridan’s shaking and nervous behavior, the facts and circumstances were not such that “tipped the scales to probable cause.”

The SJC also considered the plain view exception to the warrant requirement. The plain view doctrine requires that the officer be lawfully in the position to see the object with a lawful right of access to the object, the object’s criminal nature is readily apparent, and that the officer discovered the object inadvertently. The SJC reasoned that while the officers could see the marijuana from their lawful vantage point outside the vehicle, the officers did not have lawful access to enter the vehicle, “[b]ecause the observation of a noncriminal amount of marijuana did not alone give rise to probable cause” to justify entering the vehicle.

With regard to the cell phone search and text messages, the SJC rejected the trial court judge’s finding that the search was permissible because, upon entering the vehicle, the officer found a criminal quantity of marijuana giving rise to probable cause to arrest Sheridan and search his phone incident to his arrest. The arrest was based on the entry to the vehicle, which the SJC found invalid, thus “the thread leading to the search of the text messages is unwound, and the text messages must be suppressed.”

V. Conclusion

The SJC reversed the trial judge’s denial of the defendant’s motion to suppress and held that, in light of the decriminalization of one-ounce of marijuana, the officers lacked probable cause to enter the vehicle and seize the marijuana, arrest the defendant, and search his phone. The officer could only see a noncriminal amount of marijuana and did not have sufficient facts and circumstances to believe that there was a criminal quantity of marijuana or other evidence of a crime in the vehicle. Therefore, the entry into the vehicle, seizure of marijuana, and subsequent search of the cell phone was unlawful.

Contributing Editor: Rachel Murray

Mass. Crim. Dig.: Commonwealth v. Burgos

Commonwealth v. Burgos, 19 N.E.3d 843 (2014)

I. Facts

On July 4, 2005, Dana Haywood was shot and killed in the Monte Park neighborhood of New Bedford. Three years later, Rico Almeida contacted the District Attorney’s office about Haywood’s murder. At the time, Almeida was sharing a cell with the defendant, John Burgos, when he found out that the defendant murdered Haywood. Almeida offered to help police by wearing a concealed recording device to get the defendant’s confession on tape. In order to secure a search warrant, police submitted an affidavit, which contained information about police officers’ prior dealings with Almeida. The affidavit also detailed the background of gang involvement between the defendant’s gang, United Front, and Haywood’s gang, Monte Park. Additionally, the affidavit stated that police suspected Haywood’s death was in retaliation for a United Front member’s murder.

A Superior Court judge issued the search warrant, which allowed police officers to provide Almeida a recording device to record a conversation with the defendant. The defendant admitted on tape to being one of the shooters that killed Haywood.

II. Procedural History

Once indicted for murder and unlawful possession of a firearm, the defendant filed a motion to suppress the recorded statements. The defendant argued the Commonwealth violated the wiretap statute because “the Commonwealth had not made the requisite showing that the recording would lead to evidence about a ‘designated offense’ committed ‘in connection with organized crime.’” A Superior Court judge denied the motion, stating that the affidavit contained sufficient facts to show that “the victim’s murder was committed in connection with organized crime because the facts showed the murder was ‘gang related.’”

After being tried and convicted of first degree murder, the defendant filed a timely notice of appeal and moved for a new trial due to ineffective assistance of trial counsel. The motion was remanded to Superior Court, where it was denied. The defendant subsequently filed another timely appeal.

III. Question Presented

The Massachusetts Supreme Judicial Court (“SJC”) considered three issues: (1) whether the recorded statements were a violation of the wiretap statute; (2) whether the defendant should be granted a new trial because he was deprived of effective assistance of counsel; and (3) whether the defendant’s motion to suppress evidence of his recorded call with his brother while he was a pretrial detainee was improperly denied.

IV. Reasoning and Analysis

The SJC first reviewed whether the secretly recorded statements should have been suppressed. The SJC looked to the wiretap statute and one of its exceptions: the one-party consent recording. This is “where the person who is conducting the surreptitious recording is an investigative or law enforcement officer investigating a ‘designated offense,’ and that officer is either (1) a party to the communication, or (2) has advance authorization from a party to the communication to intercept the conversation” (internal quotations omitted). The Commonwealth used the wiretap exception to support its argument that “the recording was carried out by law enforcement officers investigating the victim’s murder.” The defendant argued that it must be connected with organized crime. The defendant asserted that for this exception to apply, the Commonwealth must “show that the decision to intercept was made on the basis of a reasonable suspicion that interception would disclose or lead to evidence of a designated offense in connection with organized crime.” The SJC stated that the Commonwealth must show not only a nexus to organized crime but: 1) “a high degree of discipline and organization among the suspected members of the criminal enterprise” and 2) “that the designated offense was committed to promote the supply of illegal goods and services or the furtherance of an ongoing criminal business operation” (internal quotations omitted).

The SJC looked at other wiretap statute cases. In Commonwealth v. Tavares, 945 N.E.2d 329 (Mass. 2011), there was no connection to organized crime because there was no information in the police officer’s affidavit or other evidence that the crime was committed in connection with organized crime. In Commonwealth v. Hearns, 10 N.E.3d 108 (Mass. 2014), the Court found a link in connection to organized crime because the affidavit contained detailed information regarding the police officer’s direct knowledge that the alleged individuals distributed narcotics and possessed firearms. The SJC opined that Burgos’s situation is more similar to Tavares than to Hearns due to the police officer’s vague and conclusory affidavit in this case. The SJC concluded that there was nothing in the affidavit that showed these two gangs were at war with each other and that would connect the murder or the defendant to the gang’s drug dealing operations. The Court found that “a retaliatory killing alone, without a clear link to the goals of a criminal enterprise, does not amount to a connection to organized crime.” Therefore, the SJC held that the denial of the defendant’s motion to suppress was error and that a new trial should be granted.

Next, the SJC looked at whether the defendant was deprived of effective assistance of counsel because the defendant’s trial attorney decided to move for suppression of evidence from his conversation with Almeida. The defendant argued that the conversation between himself and Almeida was while he was in “custodial interrogation.” Therefore, the evidence was inadmissible because the defendant was not given his Miranda warnings before the conversation occurred. The defendant argued that his “trial attorney’s action fell measurably below that which might be expected from an ordinary fallible lawyer” (internal quotations ommited). However, the SJC found that the defendant was not in custody for Miranda purposes because he was voluntarily telling information to Almeida, whom he considered to be a friend. Therefore, the defendant’s trial attorney was not ineffective in raising the claim for suppression.

The final issue the SJC considered was whether the defendant’s motion to suppress evidence of his recorded call with his brother while he was a pretrial detainee was improperly denied. The SJC concluded that there was no error because there must be prejudice shown in order to suppress the evidence and there was none shown.

V. Conclusion

The SJC reversed Burgos’ conviction, and the case was remanded for a new trial.

Contributing Editor: Sameera Navidi

Article Preview: “Mature Person Preferred”

The Fair Housing Act was passed in 1968 with the purpose of outlawing discrimination by a property owner when renting or selling a dwelling based on “race, color, religion, sex, familial status, or national origin.” Section 3604(c) of the Fair Housing Act, which deals specifically with discriminatory advertising practices, prohibits housing advertisements through any medium that show “any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin.” Since the passage of that act, applying section 3604(c) has become more difficult due to issues such as internet advertising and First Amendment challenges.

This Note examines the federal court system’s interpretation of section 3604(c) of the Fair Housing Act. To determine whether an advertisement has violated section 3604(c), the courts use the “ordinary reader” test to determine whether an “ordinary reader would understand an advertisement to suggest a preference for or against a protected group.” In Ragin v. New York Times Company, the Second Circuit interpreted the term “preference” to mean “any ad that would discourage an ordinary reader of a particular race.” The Seventh Circuit also equated the word “preference” with discouraging an ordinary reader in Jancik v. Department of Housing & Urban Development. However, in Miami Valley Fair Housing Center, Inc. v. Connor Group, the Sixth Circuit declined to follow the Second and Seventh Circuits, ruling that the terms “preference” and “discourage” are not synonymous, and therefore the ordinary reader standard should apply any time an ordinary reader would believe an advertisement indicates a preference. These three decisions created a circuit split on the issue of whether the ordinary reader test applies to advertisements that discourage readers, or merely show a preference.

In her Article, “Mature Person Preferred”: The Circuit Split on the “Ordinary Reader” Standard for Advertisements in Violation of the Fair Housing Act, Heather Reid argues that the circuit split should be decided in favor of the Sixth Circuit and the ordinary reader test should apply to advertisements that show a preference.

Reid first argues that equating “discourage” to the language “indicates a preference” in section 3604(c) constructively replaces the language of the statute “with a broader restriction that has no textual support in the language of § 3604(c).” Additionally, neither the Second nor Seventh Circuit has articulated a reason for inserting “discourage” into the reasonable reader standard when it was not included in the statute.

Reid goes on to point out that including “discourage” creates an overly broad interpretation of the reasonable person standard that restricts free speech. An advertisement could “discourage” a member of a protected class by simply describing the property without showing a preference. This creates a valid First Amendment claim.

Reid then analyzes the ordinary reader test as it applies to online advertisements, which are prevalent in this age, yet were non-existent when the statute was passed. Reid warns that the Seventh and Second Circuit’s version of the ordinary reader standard is unworkable in the age of Internet advertisements. In print media, newspapers or publishers are held accountable for discriminatory ads they publish, which is one reason that the legislation is effective, but Internet service providers are exempt from civil liability in these circumstances, so the law will be less effective. Reid argues that since the standard that uses the “discourage” language is over-restrictive, it will lead to more confusion in enforcement due to the different standards between online ads and print ads. Reid concludes that the court must use a clear and broad, yet unrestrictive, standard that applies to advertisements equally across all mediums, which would be accomplished if the Court adopts the Sixth Circuit’s version of the ordinary reader standard.

Be sure to read the full article in the New England Law Review, Volume 49, Book Four, due to be posted here in early Fall.

Contributing Editor: John Mara