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Matthew Barison
Boston, MA Trial Attorney
Boston, MA Trial Attorney


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Read my latest criminal law overview on "Carrying a Dangerous Weapon" at my blog:
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Bail is a very important matter for those facing criminal charges. At arraignment, the Commonwealth, though the Assistant District Attorney, will often request bail. The Defense Attorney will also make a bail request, and then the judge must decide how much bail, if any, to impose.

A recent decision by the Supreme Judicial Court (SJC) has outlined the factors to be considered in setting bail. The most important development from this new ruling, Brangan v. Commonwealth 477 Mass. 691 (2017), is that a Defendant’s dangerousness is NOT a factor to be considered in setting bail.

If the Commonwealth is moving to hold someone without bail, it must hold a dangerousness hearing, which is a separate event from the arraignment; at such a hearing, both parties may introduce evidence, including witness testimony, regarding the Defendant’s alleged dangerousness. The Commonwealth bears the burden of showing that no less restrictive conditions of release (such as GPS monitoring or stay away orders) would mitigate the Defendant’s dangerousness to either specific individuals or to the community at large. Such hearings are largely reserved for particularly heinous crimes.

If dangerousness is off limits at arraignment, then what elements CAN factor in to a bail determination? The most important is the Defendant’s record of defaults. A default occurs when an individual fails to show up for court without justification. If a Defendant has a history of defaults, judges will often impose some bail to assure his/her presence at future court dates. Other factors that judges may consider include: the nature and circumstances of the offense charged, the Defendant’s record of convictions, family ties, length of residence in the community, character, and financial resources.

The Brangan decision further outlines the manner in which a Defendant’s financial resources may be considered. At the broadest level, the court must give each Defendant an individualized bail determination that takes his/her financial resources into account. This is particularly important to poor and indigent Defendants. As the SJC explained:

“A bail that is set without any regard to whether a defendant is a pauper or a plutocrat runs the risk of being excessive and unfair. A $250 cash bail will have little impact on the well-to do, for whom it is less than the cost of a night's stay in a downtown Boston hotel, but it will probably result in detention for a homeless person whose entire earthly belongings can be carried in a cart. What would be a reasonable bail in the case of one defendant may be excessive in the case of another.” Brangan at 700.

That said, the court is NOT under any obligation to set a bail that the Defendant can afford to post. The test instead is based on reasonableness; the amount of bail set must be no higher than that which would secure the Defendant’s appearance. Judges are required to detail in writing all factors they have considered in setting bail.

If the bail set by the court is not affordable, resulting in the Defendant being held in custody, he/she is entitled to a bail review hearing. For bails set in the District Courts, bail review hearings occur in the Superior Court; for bails set at the Superior Court, bail review occurs at the SJC in front of a single justice.

While Massachusetts maintains a presumption favoring release on personal recognizance, it is very important to have an attorney make a strong bail argument at arraignment.
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A quick word to friends who are considering engaging in civil disobedience. Be prepared! If you disobey police orders, you are subject to arrest.

The police have broad power to enforce public order. During a protest, instigators are subject to arrest for "public order offenses" such as affray and disturbing the peace. Though the Boston Police tend not to arrest people in en-masse, if you repeatedly disobey an officer's order, you will probably be arrested. (Note, State Police and Federal law enforcement agencies tend to be more aggressive).

More on resisting arrest... the Massachusetts Model Jury Instructions state:

"A person commits the crime of resisting arrest if he knowingly prevents or attempts to prevent a police officer . . . from effecting an arrest of [himself] or another by using or threatening to use physical force or violence against the police officer or another [...]"

This language means you can get arrested for resisting yourself or attempting to help another resist. Also, the language allows arrest upon the "threat" of use of physical force. Individuals who do in fact use physical force against an officer will likely also be charged with Assault and Battery on a Police Officer (ABPO). Note: even the slightest application of force can be the basis for an ABPO charge.

After arrest, comes booking at the police station. At this point, most people are released, either on their personal recognizance to show up in court or by paying bail. Again, the police set this initial bail, and if a lot of people are being arrested, you may have to wait hours to be booked.

Upon release, you will be given a time to appear in court. That's when to contact me! The sooner you have an advocate working on your case, the better.

That short of this is, if you are contemplating arrest, have someone to call who will post your bail! Write down that number and keep it on your body; assume your phone will be inaccessible.

To those advocating for justice and radical equality, thank you! As you take to the streets, be smart in your tactics.
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In a move that has upset liberals, conservatives, tokers and teetotalers alike, the Massachusetts Legislature passed a bill yesterday delaying the opening of retail marijuana shops by six months.

As you may recall, this November, Massachusetts voters approved a ballot question legalizing marijuana. The ballot question made possession legal as of December 15, and gave the Commonwealth until January 1, 2018 to devise a regulatory structure governing retail sales. Thus, pot shops were set to open in 2018, thereby eliminating the legal grey-area that now exists, in which the possession of MJ is legal, but the sale of it is not.

You may also recall that the majority of the State Legislature and our Republican Governor were opposed to legalization. Nonetheless, when the ballot measure passed, the onus was on that very Legislature to implement the new law. Almost immediately after the ballot question passed, legislators began floating the idea of a delay; yesterday, in an extraordinary legislative maneuver, they passed a law accomplishing just that.

What makes the Legislature's actions extraordinary is the manner in which the delay was passed. Currently, the Legislature is not sitting in formal session. Laws proposed during formal session require the vote of legislators; that is, each State Representative and State Senator must vote yay, nay or abstain. These votes are a matter of public record. In an informal session, laws can still be passed, but in a different manner. There proposed laws are passed unless an objection is lodged. That is, support for the measure must be unanimous. As a result of this procedure whereby one legislator can block passage of a bill, informal sessions are generally used for non-controversial measures, such as the honorary naming of bridges. Informal sessions are generally less well attended, and do not require a roll-call vote.

Yesterday, with just three Senators and three Representatives present, a bill was introduced to delay the implementation of the marijuana retail sales, pushing the date back six months until the summer of 2018. None of the six legislators present objected, so the bill was passed, and is now on the desk of the Governor, who has previously expressed support for a delay.

A broad spectrum of people are upset because the Legislature's actions seem to repudiate the will of the people as expressed by their vote on the ballot question. Massachusetts voters had ample time to familiarize themselves with the proposal, which included detailed timelines, and a majority supported it. The ballot measure, as passed, gave the Commonwealth one year to establish the regulatory mechanism to oversee recreational sales.

By advancing the delaying legislation in informal session, legislators shielded themselves from having to vote on the matter on the record. If they had been forced to do so, they likely would have had to answer difficult questions from their constituents, namely why they supported a measure that contradicted the will of the people. Furthermore, since a single objection would have caused the delay bill to fail, its passage meant that not one of the 40 State Senators or 160 State Representatives had the courage to object. Given that Democrats dominate the Legislature (34 Senators and 126 Representatives to be exact), yesterday's actions showed that not one was willing to buck the political consensus and stand with the people. Had one done so, the measure still could have been re-introduced in formal session come 2017.

Given the extremely slow roll out of medical marijuana in Massachusetts, perhaps this delay comes as no surprise. The legislative maneuver executed yesterday shows that our representatives are prepared to contradict the will of the people, but only if they are shielded from public scrutiny for so doing; in effect, its a damning indictment against all of those who remained silent.

So, we are in for at least six additional months of a legal grey-zone; dealers rejoice, tax revenue delayed, and voters across the political spectrum feeling usurped. A most unwelcome last minute surprise from Beacon Hill.
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Sealing Criminal Records (CORI) in Massachusetts

Nobody’s perfect; if you’ve been charged with a crime, the charge, regardless of the outcome of the case, is likely a part of your criminal record, known in Massachusetts as your CORI (criminal offender record information). Such information is routinely used by prospective employers and landlords; if you have a criminal record, you may be disqualified for jobs or housing, despite your credentials.

Thankfully, the Commonwealth of Massachusetts has made it easier for individuals to have their criminal records sealed. Before getting into an overview of the process of sealing one’s record, it’s important to make a few key distinctions. First, sealing is different from expungement; the latter, in effect an erasure of your record, is not available in Massachusetts. Instead, when your case is sealed, a prospective employer who has requested your CORI report will see that you have no record. There are exceptions to this rule; sealed cased ARE visible to criminal justice agencies, such as police, probation, and courts, and certain State agencies such as the Department of Early Education, DCF and DYS. Sealing only applies to criminal cases, instances in which you have been charged with a misdemeanor or felony, not civil actions such as restraining orders. Finally, sealing only applies to your court and/or probation records; it has no effect on the underlying police report, which remains public information, though this is not included in a CORI.

Sealing Procedure

The method by which you may seal your criminal record depends on how your case was resolved:

If you were NOT convicted (found not guilty, case dismissed, acquitted, continued without a finding) then you may petition the court directly to have the case sealed. The mere fact that you were not convicted is not enough to justify a sealing of the record; instead you must show “good cause,” namely that the presence of the criminal charge on your record would cause you “specific harm.” Such harm could include you being disadvantaged in applying for jobs or housing. It is also important to show the court that you have made significant lifestyle changes since you were charged with the crime, such as drug treatment, anger management, etc. You may begin the sealing process at the conclusion of your case by filing a Petition to Seal Record with the court, along with supporting documentation. A judge will review your Petition and either deny it or schedule a hearing. At the hearing, you (or your attorney) will make an oral argument supporting your particular “good cause” for sealing the record. The judge will then rule by completing a Findings and Order of Court on Petition to Seal Record(s) form. Review this form before beginning the process; it enumerates the specific factors the judge will consider and thus should serve as a template for your “good cause” argument. Appeals are permitted. Finally, it is worth noting that these procedures also apply to individuals who WERE convicted of first time drug possession but who have otherwise complied with court orders.

If you WERE convicted (found guilty), then the procedure for sealing you records is different, namely you must wait before petitioning to seal. If you were convicted of a misdemeanor, you must wait five years and if you were convicted of a felony, you must wait ten years. The clock starts ticking on the latter of either: a) the date you were found guilty (if you were not sentenced to prison), or b) the date you were released from incarceration. Post-conviction probation does not affect these times. If you are convicted of any other crime during the 5 or 10 year wait period, the clock is reset; subsequent non-convictions have no effect on the wait periods. After the requisite time has elapsed, you must submit your Petition to the Office of the Commissioner of Probation. Thanks to recent changes at the Probation Department, the wait time for these petitions to be processed has been reduced from months to days. The Commissioner of Probation will also entertain petitions from individuals who have been convicted of a offense that has since been decriminalized, such as the possession of under 1 oz. of marijuana; in such cases, there is no waiting period.

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Regardless of your particular circumstances, it is advisable to have an attorney’s assistance when attempting to seal your records. If you are looking to seal your criminal record, contact me now; I will help you prepare and make your strongest argument so that you can get back to your life!

See this post, with PDF forms, on my website at:
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Massachusetts state law provides strong protections for consumers who have been subject to unfair or deceptive commercial practices. The Consumer Protection Act, also referred to as "93A" for the chapter in which it appears in Massachusetts laws, authorizes both individuals and the Attorney General to bring claims against offending businesses. When bringing a claim as an individual, the process begins with a 93A demand letter which outlines the nature of the complaint to the offending party. There are some technical requirements to this letter, so it is best to consult with an attorney prior to sending one.

The opposing party has thirty days to address your claim; if they fail to do so, you may then file a lawsuit against them in court. Should you go to court, 93A provides that successful plaintiffs are entitled to double or triple damages, attorneys fees and other costs. This potential exposure to enhanced penalties encourages settlement within the initial 30-day window. (On the flip side, if the court finds that you were offered a reasonable settlement, you will be limited to collecting just that.) 93A laws apply to commercial transactions occurring within Massachusetts and to companies that conduct substantial business in the state.

The Consumer Protection Act also applies to matters involving insurance companies. The insurance industry is highly regulated in Massachusetts, and state laws outline what constitutes unfair and deceptive acts regarding insurance matters. Some such acts include: failing to acknowledge claims, failing to investigate claims, and failing to effectuate prompt and equitable settlement. If your claim isn't being handled promptly or fairly by an insurance company, call me today for assistance.

While it may seem daunting to take on a company that has wronged you, be it a local shop or a large multi-national corporation, the law gives you tools to help level the playing field. With an aggressive attorney on your side, your claims are more likely to be resolved quickly and fairly.

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Today BP agreed to an $18.7B settlement agreement regarding its role in the 2010 Deepwater Horizon oil spill in the Gulf of Mexico.  The settlement effectively ends all federal and state claims against the oil giant.  Here is a breakdown of that $18.7B figure:

     -$5.5B for violation of the Clean Water Act;
     -$7.3B for damage to natural resources;
     -$4.9B for state claims (LA, MS, AL, FLA);
     -$1.0B in claims by local governments.

This outcome is the largest environmental law settlement in US history.

Benefits of the settlement include an end to the various federal and state cases that have been ongoing for the past five years.  Those affected now have greater certainty regarding compensation, and large costal restoration projects can be budgeted.

However, this settlement, like those in any case, short circuits the judicial process.  Under the Clean Water Act, one of our country’s most important and powerful environmental laws, it is up to a federal judge to determine the liability of and damages owed by polluters.  In this case, Judge Carl Barbier of New Orleans had already ruled that BP was guilty of “gross negligence” for the oil spill (versus simple negligence), and was thus subject to fines of $4,300 per barrel of oil spilled (vs. $1,100/barrel).  Based on the government’s findings regarding the amount of oil spilled, BP’s maximum fine under the CWA alone could have been $13.7B.

Under the terms of the settlement announced today, however, BP’s CWA fines are only $5.5B, or approximately 40% of the maximum it could have faced.

Since Judge Barbier had yet to rule on the CWA penalty, BP was probably feeling the heat and fearing a possible $13.7B fine.  Therefore, it is likely that BP significantly sweetened its offer to the government, resulting in today’s settlement.

What’s puzzling to me is why the government accepted this settlement.  The $5.5B CWA penalty is much closer to what BP would have faced had Judge Barbier not found that the oil giant had acted with gross negligence.  

The settlement is also troubling in that it follows the pattern of the government settling with large corporations short of judicial resolution.  We have seen this play out time and time again in the context of financial regulators settling fraud cases with Wall St. banks.  If the government had been able to pursue these cases for five years, why couldn’t it see them to their logical conclusions?  While it may have taken more time, the ultimate fines could have been far greater.  

I also worry about moral hazard.  Our federal government has some very strong environmental laws.  However, when it agrees not to enforce these laws to their full extent, would-be polluters may take greater risks in their operations.  Laws are only meaningful when enforced, and sadly, in today’s America, large corporate defendants are treated far better than your average low-level offender.  To add a final insult to injury, BP is likely to attempt to deduct over $6B of these penalties from its taxes.
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In many states, including Massachusetts, residents can legislate directly through the ballot initiative process. Recently, such proposals have included: expanding bottle deposits, repealing the casino law, and mandating paid employee sick leave.

In MA, the process for bringing forth such petitions is detailed in Article 48 of the Massachusetts Constitution. First, the proposal must have the support of ten voters. Then, the Attorney General must review the proposal to make sure it does not touch upon “excluded matters,” which themselves are enumerated in the MA Constitution. For instance, ballot measures regarding religion, religious practices, or the appointment of judges are strictly prohibited.

The Massachusetts Constitution also prohibits ballot petitions that infringe on personal liberties. Such liberties are found in the first part of the MA Constitution, which is known as the “Massachusetts Declaration of Rights.” While the Massachusetts Constitution was revolutionary at the time it was ratified in 1780, it is very much a living document that has changed with the times. In 1976, the language pertaining to personal liberties was expanded to state: “Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.” see MA Constitution, Article CVI.

So long as a ballot initiative does not infringe upon personal liberties or other excluded matters, the Attorney General will certify the initiative for filing with the Secretary of State. Having passed this first hurdle, initiative proponents must then gather signatures. (Specifically, proponents must gather a number of signatures equal to 3% of votes cast for Governor in the most recent election, roughly 69,000.) If this second hurdle is cleared, the initiative is sent to the Legislature, which can either approve it, disapprove it, propose a substitute, or take no action. If the legislature does not enact the proposed initiative within five months, the proponent must then gather a second round of signatures (this time 0.5% or votes cast for Governor in the most recent election, approximately 11,000). If this third hurdle is cleared, and all signatures are verified, then the initiative is placed on the ballot. The Secretary of State and Attorney General are responsible for creating a summary of the proposed initiative along with easy-to-understand explanations of the effect of a yes or no vote. Ballot measures that pass with a simple majority of votes take effect in thirty days.

Now that you are an expert on Massachusetts ballot initiatives, let’s take a look at California. In the Golden State, initiative proponents must first submit a text of the measure to a lower level official at the California Attorney General’s office, along with contact information and a $200 deposit. After a 30 day public review period, proponents may, but need not, alter the text of the initiative. After the initial public comment period, the Attorney General must draft a brief title and summary of the proposed petition within 15 days. Only then may the proponent begin to gather signatures. If the requisite signatures are gathered and verified, the initiative is put to vote.

You will notice that the process in California does not include initial review of the proposal by the Attorney General to make sure it does not infringe upon personal liberties. You will also notice that the Attorney General must draft a title and summary of the proposed petition prior to signature collection.

Such is the state of the law in California, and thus the basis of the conundrum facing Attorney General Kamala Harris. Harris has been presented with a petition drafted by California lawyer Matthew McLaughlin called the “Sodomite Suppression Act,” which proposed that gay people be “put to death by bullets to the head or by any other convenient method.” Now, had such a ballot initiative been proposed in Massachusetts, it would fail initial review by the Attorney General, as it clearly violates the Massachusetts Declaration of Human Rights. However, as noted, the California Attorney General is not specifically vested with the authority to make such preliminary determinations of constitutionality. AG Harris is thus in the un-enviable position of being mandated to draft a title and summary of this vile proposition. But Harris isn't going to just roll over and do it; instead, she has filed an action in the Sacramento Superior Court seeking judicial relief from her duty to prepare the title and summary. While the California AG generally does not have the power to prevent an initiative from moving forward to the signature gathering stage, Harris has argued that in this case, the proposal is unconstitutional on its face, and therefore presents a unique situation.

I’ll update this space once a decision is reached. For now, though, despite all we hate about Massachusetts politics, lets give credit to John Adams and the men whose foresight ensured that such crass and hateful publicity stunts will never see the light of day in our fair Commonwealth.
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