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

Mass. Crim. Dig.: Commonwealth v. Valentin

Commonwealth v. Valentin, 470 Mass. 186 (2014)

I. Facts

In July 1991, Timothy Bond stole cocaine from Angel Ruidiaz, who was selling drugs for the defendant’s brother, Simon. Ruidiaz paid Simon for the stolen drugs, but Simon told Ruidiaz that he was “still going to get” Bond. Later that same month, while Bond was with a group of friends, including Kenneth Stokes, Simon and the defendant approached Bond from behind and shot him in the back of the head. Bond fell to the ground and Simon shot him again in the head. Stokes testified that the defendant next stomped on the victim’s head while making a profane death threat. Then the defendant and Simon fled on foot and, as they were running away, the defendant told Simon, “Man, put the gun away, the police are coming.”

At the trial, the defendant’s primary defense was an alibi, calling three witnesses to testify that he was playing dominoes elsewhere at the time of the shooting. The Commonwealth called four witnesses, including Stokes, who were at the shooting. All four of these witnesses testified that the defendant either “kicked” or “stomped” on the victim’s head after Simon fired the second shot. However, only Stokes testified that the defendant made a profane statement while he kicked or stomped on the victim’s head. On cross-examination, two witnesses acknowledged they did not tell the police shortly after the incident that they saw the defendant stomp on Bond. Stokes, though cross-examined, was not questioned about his failure to initially tell the police about the defendant’s statement. On the second day of jury deliberations, defendant’s trial counsel, Robinson, asked for the judge’s permission to have her law partner stand in for her. Although her partner had not worked on the case and had only discussed it with Robinson, the judge granted the request without seeking defendant’s consent to the substitution.

While substitute counsel was standing in, the jury asked to be, and was, reinstructed on joint venture and premeditation. Following the reinstruction, the judge assured substitute counsel that any objections that Robinson made in the main jury charge would be preserved and that he was not waiving any of these objections. That same day, the jury found the defendant guilty as a joint venturer in premeditated murder.

II. Procedural History

On May 15, 1992, defendant Pedro Valentin was convicted of murder in the first degree by reason of deliberate premeditation. The Supreme Judicial Court (“SJC”) affirmed his conviction in 1995. In January 2012 the defendant filed a motion for a new trial, which was denied on February 6, 2013, without a hearing. Later that same month the defendant filed a petition for leave to appeal under chapter 278, section 33E of the Massachusetts General Laws. On August 1, 2013, a single justice allowed the petition to address two of the issues presented.

III. Questions Presented

The SJC considered two questions: (1) whether the defendant’s trial counsel provided ineffective assistance by virtue of failing to impeach Stokes’s testimony regarding the defendant’s murder scene statement; and (2) whether the defendant was deprived of counsel as a result of his trial counsel’s partner standing in during jury deliberations.

IV. Reasoning and Analysis

(1) In reviewing an appeal from the denial of a motion for a new trial, which alleges errors grounded in the record before the court in its plenary review, the SJC reviews for a “substantial risk of a miscarriage of justice.” “A substantial risk of a miscarriage of justice exists when [there is] a ‘serious doubt whether the result of the trial might have been different had the error not been made.’” “Errors of this magnitude are extraordinary events and relief is seldom granted . . . . Such errors are particularly unlikely where, as here, the defendant’s conviction . . . has undergone the exacting scrutiny of plenary review under § 33E.”

A defendant’s right to counsel in a criminal case entails the right to “effective assistance of counsel.” In order to establish a claim of constitutional ineffectiveness of counsel, the defendant must show “that his attorney’s performance fell ‘below an objective standard of reasonableness’ such that there is a ‘probability sufficient to undermine confidence in the outcome.’” In cases where an attorney’s defense strategy proves unsuccessful, judicial examination of counsel’s performance should be highly deferential so as to avoid “the distorting effects of hindsight.”

For claims of ineffective assistance of counsel raised under both the Sixth Amendment to the U.S. Constitution and Article Twelve of the Declaration of Rights of the Massachusetts Constitution, the SJC is tasked with determining whether there has been a “serious incompetency, inefficiency, or inattention of counsel—behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer—and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available substantial ground of defence.” Although counsel’s failure to pursue an “obviously powerful form of impeachment” can rise to the level of unreasonableness such as to constitute ineffective assistance, the failure to impeach a witness does not necessarily, on its own, constitute ineffective assistance.

Here, counsel did extensively cross-examine and impeached Stokes based on a series of inconsistent statements. Thus, even though counsel did not extensively question Stokes about the defendant’s alleged statement, she did undermine the veracity of his entire testimony. Further, trial counsel’s decision not to impeach Stokes on this particular statement was a strategic one to avoid highlighting it. Thus, the Court found that this was not manifestly unreasonable.

However, even if it was unreasonable, the Court noted that this error did not lead to a substantial risk of a miscarriage of justice. That is because there was substantial additional evidence upon which the jury could have relied in determining that the defendant shared Simon’s intent to kill Bond. Finally, “[w]hether the defendant actually made the statement in question was not the linchpin of the defense.”

(2) In Massachusetts, jury deliberations are considered a critical stage of the proceedings when the jury communicates a request that is of legal significance. At this stage, assistance of counsel requires that a judge consult with counsel regarding the appropriate response to the jury’s request. The jury’s requested reinstruction was on joint venture and premeditation, two issues of legal significance in this case. Since this issue arose at a critical stage of the proceedings, it would be a structural error resulting in a new trial if the defendant was actually or constructively denied counsel. In cases of structural error, the defendant has a right to a new trial without a showing of prejudice.

The defendant claimed that the absence of his informed consent to substitute counsel during jury deliberations amounted to a structural error. “Structural errors are ones that render the ‘adversary process itself presumptively unreliable’ or that constitute ‘constitutional error[s] of the first magnitude’ that simply cannot be cured even if the error was ultimately harmless.” The Supreme Court has recognized that “[c]ircumstances of [this] magnitude may be present on some occasions when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.” However, constructive denials of counsel rarely meet this order of magnitude.

Here, substitute counsel’s representation of the defendant for this brief period did not constitute structural error because substitute counsel was not fundamentally incapable of representing defendant during the brief period of representation. Substitute counsel did actively render assistance to the defendant by preserving objections to the challenged instructions by trial counsel. Thus, any error involved in permitting substitute counsel was not structural and therefore requires a showing of prejudice in order to warrant a new trial. However, even if defendant was not constructively denied counsel outright, he is still entitled to effective assistance of counsel.

Unlike constructive denial of counsel, however, a claim for ineffective assistance of counsel, if performance was substandard, requires the defendant to show prejudice and that better performance might have accomplished something material for the defense. In considering a claim for ineffective assistance of counsel, the court uses an objective standard to determine whether the conduct fell within a range of professionally reasonable judgments based upon the professional norms that existed at the time of representation.

The defendant claimed that he was prejudiced by substitute counsel’s failure to object to the “joint venture” reinstruction. Specifically, the defendant argued that substitute counsel’s failure to object to the judge’s omission of “not guilty” on the “joint venture” reinstruction was prejudicial. However, the jury was previously instructed, generally and specifically, with respect to joint venture that they could find the defendant not guilty and, even if counsel had objected, it is unclear that the judge would have repeated the full instruction. The Court considered whether not pursuing this argument was “manifestly unreasonable” so as to give rise to a “substantial risk of a miscarriage of justice,” and determined there was no such risk.

“In a postappeal, collateral attack that raises an issue regarding jury instructions, we consider whether a reasonable juror could have used the instruction incorrectly, in light of the instruction as a whole and in the context of the trial.” Although the judge’s supplemental instructions could have been more clear in distinguishing between general malice and premeditation, the jury would have understood that the judge’s instruction regarding deliberate premeditation related to the intent to kill and not an intent to inflict grievous bodily harm. “Even though he could have made certain objections regarding the supplemental instructions, substitute counsel’s actions did not fall below what we would expect from an ordinary fallible lawyer, and the defendant was not significantly prejudiced by substitute counsel’s performance such that he is entitled to a new trial.”

V. Conclusion

For the foregoing reasons, the SJC affirmed denial of the defendant’s motion for a new trial.

Contributing Editor: Sarah Gage