Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Respondent-Appellant Facebook.

Argument: This Court should grant direct appellate review in this case because the public interest in preserving work product protection and attorney-client privilege is of such importance that justice requires a final determination by this Court. In compelling Facebook to produce information generated in the course of an attorney-led investigation, the Superior Court failed to properly apply the work product and attorney-client privilege protections that attached to those materials. The work product doctrine protects from disclosure information generated in the course of an attorney-led investigation that is conducted “because of” anticipated litigation, and an attorney’s sorting of information during a privileged investigation cannot be discoverable by his adversary. And the attorney-client privilege protects confidential communications between lawyers and their clients even if the client publicly discloses the existence of an attorney-led investigation. In rejecting these principles, the Superior Court created dangerous uncertainty in the attorney-client relationship.

Commonwealth v. Oswelt Millien; Opinion 

 

Argument: The Supreme Judicial Court, Gants, C.J., held that:
indigent defendant’s trial counsel’s performance was manifestly unreasonable in failing to seek public funds to retain an expert witness to offer opinion testimony on cause of injuries to defendant’s six-month-old daughter or to assist with cross-examination of Commonwealth’s witnesses; and trial counsel’s performance was prejudicial to defendant, thus satisfying test for an ineffective assistance claim on a motion for new trial.
Order denying motion for new trial reversed; judgments of conviction vacated; case remanded for new trial.

Brief for Amici Curiae National Association of Criminal Defense Lawyers and the Massachusetts Association of Criminal Defense Lawyers.

Argument: Every Dookhan defendant should be afforded the presumption that Dookhan’s fraud was prejudicial. The presumption of prejudice should be irrebuttable. A conclusive presumption preserves the integrity of the judicial system. A conclusive presumption would allow for more efficient administration of justice and would more effectively deter future commonwealth misconduct. The court should bar re-prosecution of dismissed Dookhan cases. Dismissal with prejudice is an appropriate corrective to the lax response by the Commonwealth to the Dookhan and Farak scandals. A bar on re-prosecution will obviate a need for courts to address the question of whether Dookhan not only falsified drug certifications, but also irrevocably corrupted the underlying drug sample.

Brief for the National Association of Criminal Defense Lawyers and the Massachusetts Association of Criminal Defense Lawyers as Amici Curiae.

Argument: Due process and the Rules of Professional Conduct require the prosecutors to promptly notify individual defendants of the exculpatory evidence in each affected case. Because the Commonwealth was aware of this exculpatory evidence at the time of each trial or plea, Brady v. Maryland requires prompt disclosure to each defendant. That a Brady violation occurred in each Dookhan defendant’s case is clear. Prior decisions of both the U.S. Supreme Court and this Court support the conclusion that Brady requires disclosure for defendants whose trials included Dookhan-tainted evidence. Prior decisions of both the U.S. Supreme Court and this Court support the conclusion that Brady requires disclosure for defendants in Dookhan-tainted cases who pled guilty. All prosecutors of Dookhan cases have an ethical obligation to promptly disclose this exculpatory evidence pursuant to Massachusetts Rule of Professional Conduct 3.8(d).

Brief of Amicus Curiae filed by Daniel K. Gelb, Esquire and Daniel B. Garrie, Esquire to which National Association of Criminal Defense Lawyers joins in support of defendant-appellant.

Argument: Compelling a password production to the Commonwealth is a violation of defendant’s right against self-incrimination pursuant to the Fifth Amendment of the United States Constitution and Article 12 of the Massachusetts Declaration of Rights. Society has adopted an objective expectation of privacy in computer passwords and encrypted data protected by the Fourth Amendment of the United States Constitution and Article 14 of the Massachusetts Declaration of Rights.

Brief of Juvenile Law Center, National Association of Criminal Defense Lawyers, et al. as Amici Curiae on Behalf of Appellee (full list of amici in appendix to attached brief).

Argument: Massachusetts’s mandatory life without parole sentencing scheme for juveniles convicted of first degree murder is unconstitutional under the United States and Massachusetts Constitutions. Marquise Brown should be sentenced based on the most severe lesser included offense of manslaughter. Mandatory life with parole sentences contravene Miller  and Graham.

Amicus curiae brief of Jorge Areiza, Hector Dejesus Puerta, Alejandra Gomez, Darney Gomez-Mesa, the Massachusetts Association of Criminal Defense Lawyers, and the National Association of Criminal Defense Lawyers.

Argument: Cellular phone communications and text messages are not ‘wire communications’ under G.L. c. 272, § 99. Even if the language of the Massachusetts Wiretap Act covers cellular phone communications, Massachusetts state courts have no authority to issue wiretap warrants for such communications because the legislature did not update the statute as mandated by Congress.

Brief of Amicus Curiae Filed by the National Association of Criminal Defense Lawyers in Support of Defendant-Appellant.

Argument:  When the basis for a motor vehicle stop is a stand-alone anonymous 911 telephone call, the Aguilar-Spinelli test should apply to the reasonable suspicion determination. Anonymous 911 calls are not inherently self-verifying and evolving technology requires the modernization of how the reliability is determined.

Brief for the Constitution Project, Drug Policy Alliance, National Association of Criminal Defense Lawyers, as Amici Curiae.

Argument: There is a broad national consensus that strict mandatory minimum laws fail to further the primary purposes of sentencing. A majority of states and the federal system have safety valves or have enacted substantial mandatory minimum reforms. Safety valves are the norm and exist in a majority of states and the federal system. Reforms across the country reflect the national consensus that mandatory minimums should be limited or eliminated.