Attorney Joan M. Fund
Fund & FitzGerald
888 Purchase Street, Suite 309, New Bedford, MA 02740
191 Sumner Street, Newton, MA 02459
The Attorney General is continuing its investigation into the Hinton Laboratory in Jamaica Plain. The integrity of thousands of cases have been impaired by the actions of the drug analysis unit. As of now, one chemist has been charged. The investigation continues.
The total number of people who have been convicted on tainted evidence is unknown at this time. Some people are serving lengthy sentences based on the malfeasance of a chemist. The effects are widespread. In some instances the weight of drugs was increased, hence increasing a mandatory sentence. In some instances substances that tested negative for illegal drugs was tampered with to make the results positive. In all cases, the wrongdoing violated the rights of individuals to receive a fair trial.
If you or someone you know was charged, convicted, plead guilty, was deported, or was incarcerated – even briefly based on the drug analysis done at the Hinton Laboratory, there are steps to take. From finding out the name of the chemist in the case; filing a Motion for Stay of Sentence; a Motion to Dismiss; or a Motion for a New Trial, action must be taken to right this wrong.
In a recent Massachusetts decision, a Superior Court Judge ruled that the GPS monitoring system gave false readings as to the location of the defendant. The Court relied on, in part, the expert testimony of Dr. Frank DeFalco finding as follows:
In his opinion, the margin of error for a transmitter on an ankle bracelet used by the GPS system …can be hundreds of feet, sometimes even more. And in Mr. DeFalco’s opinion, given the location of the ankle bracelet transmitter …., he opined that the transmitter gave false information …and in Mr. DeFalco’s opinion, it is probable that the GPS readings were false…
In this landmark ruling, Attorney Fund was pleased the Court ruled in favor of her client.
Today the Appeals Court reversed a drug conviction in the case of Commonwealth v. Podgurski, No. 10-P-2135.
The Court found that the defendant should have been able to present the defense of entrapment to the jury. “Entrapment by law enforcement involves “implanting criminal ideas in innocent minds and thereby bringing about offenses that otherwise would never have been perpetrated.” Commonwealth v. Shuman, 391 Mass. 345, 351 (1984), quoting Perkins, Criminal Law 1031 (2d ed.1969). “There are two elements of the entrapment defense: (1) that the defendant was induced by a government agent or one acting at his direction and (2) that the defendant lacked predisposition to engage in the criminal conduct of which he is accused.” Commonwealth v. Madigan, 449 Mass. 702, 707 (2007), quoting from Commonwealth v. Penta, 32 Mass.App.Ct. 36, 47 (1992). “
The Court also found that the manner in which the drugs were weighed was improper. “Where a measuring device is at issue, the courts in Massachusetts have required the party proffering a measurement at trial to present sufficient evidence to satisfy a threshold showing that the device is accurate.”
As an attorney who has tried drug cases from possession with intent to distribute to trafficking in controlled substances, I know that every defense must be zealously presented and no stone left unturned to obtain justice for my clients.
You should know your rights and your choices if you are arrested for drunk driving.
First time offender: First time offenders have a choice. Do you take it to trial or seek an alternative disposition. What choice should you make? How do you know which is the right one for you?
First time offenders alternative disposition:
- Plead to a Continuance without a Finding aka CWF. It is similar to, but not technically a guilty plea and if you do everything you are supposed to, the case ends in a dismissal. Pay a number of fines and court fees (over $2500 in total), and of course a hit to your insurance.
- Unsupervised probation for one year.
- Mandatory participation in 16 week (1 hour) alcohol-drug education(DAE) program paid for by defendant.
- License suspended for 45 to 90 days (not including any penalty for breath test refusal)
- License suspension is 210 days for drivers under age 21.
- You are eligible for a hardship license right away, in most cases.
What if you refused the breath test? Just for refusing the breath test after an arrest, your license is immediately suspended for 180 days, before you even have appeared in court.
Can you go to jail? Under the statute, the penalties include jail for not more than 2 1/2 years House of Correction; Fine: $500-$5,000; and License suspended for 1 year; work/education hardship considered in 3 months; general hardship in 6 months.
The realities: The minimum penalties are open to almost everyone for first time OUI/DUI arrests without extenuating circumstances like accident or injury.
Shaking your head invokes your right to remain silent and ends an interrogation by the police. Too intimidated by the police to say ‘no’ , then shake your head. That is the law under the Massachusetts Constitution as defined in the ruling of Commonwealth v. Clark decided January 13, 2012.
Massachusetts judges are not limited by the federal cases that require defendants to clearly announce they don’t want to be interviewed.
In relevant part, the unanimous decision written by Justice Lenk states:
“Both the text and history of [Article 12 of the state Declaration of Rights] support the view that it provides greater protection against self-incrimination than the Fifth Amendment,’’ and that “given the nature of the right at issue – the right to remain silent – it seems sensible to recognize that a suspect may well communicate through conduct other than speech.’’