Attorney Wood recently testified as an expert witness on the effective assistance of counsel. in a pretrial evidentiary hearing in a Norfolk County felony case. A superior court judge found him qualified to explain the constitutional and ethical obligations of a criminal defense lawyer generally, the elements of effective representation, and to offer an opinion on the effectiveness of the defendant's prior attorney in permitting his client to submit to a police interrogation.
Challenging Old Convictions Based on Eyewitness Identification
Attorney Wood recently co-authored an amicus brief for the Massachusetts Association of Criminal Defense Lawyers in coalition with the Committee for Public Counsel Services, the New England Innocence Project, and the Innocence Project about the admissibility of eyewitness identification expert testimony in post-conviction challenges. Many Massachusetts defendants were tried at a time when social science had discovered several factors that affect the reliability of eye-witness testimony but Massachusetts courts were still regularly excluding expert testimony on such research. MACDL hopes this case will clarify that defendants convicted based in part on eye-witness testimony must be given an opportunity to challenge the reliability of that testimony in post conviction proceedings through such expert testimony.
Racial Bias in Jury Deliberations Must Be Fully Investigated
Attorney Wood recently assembled a tremendous team from Wilmer Cutler Picker Hale and Dorr and the Harvard Law School Criminal Justice Institute for an important amicus brief arguing that seeks to extend protections against racial bias in jury deliberations. Specifically, the brief argues that the Supreme Judicial Court should extend the obligation of the trial judge to investigate credible allegations of racial bias in jury deliberations beyond previous holdings to require that the trial judge conduct individual voir dire of all deliberating jurors to determine whether any expression of bias during deliberations has affected their ability to be fair and impartial.
Amicus Brief: Defense Investigation Must Remain Confidential
Attorney Wood along with Attorney Sara Silva recently filed an amicus brief on behalf of the Massachusetts Association of Criminal Defense lawyers arguing that the defense must be allowed to keep its investigation confidential and privileged. In this case, the trial judge ordered the defense to disclose data gathered by a mental health expert that the defendant’s attorneys decided not to call. (Indeed, a different mental health expert that the defense eventually called to testify did not rely on the first expert’s data.) This is classic work-product privileged material and should not be required to be disclosed to the prosecution.
Amicus Brief: Prosecution Must Always Disclose Exculpatory Evidence
Attorney Wood on behalf of the Massachusetts of Association of Criminal Defense Lawyers, along with a team from Wilmer Cutler Pickering Hale and Dorr, recently filed an amicus brief arguing that the prosecution’s duty to disclose exculpatory evidence still applies after trial. If the duty to disclose “Brady” evidence only applied prior to trial, then defendants could languish for decades in prison while prosecutors sat on evidence of their innocence. In this case, the prosecution failed to disclose evidence that a key witness against Raymond Gaines had signed an affidavit recanting his testimony against Gaines, alleging that Detective Peter O’Malley pressured him to falsely accuse Gaines. They also failed to disclose that O’Malley had similarly pressured witnesses to make false accusations in the infamous Carol Stuart murder case.
"Black Box" Algorithmic Location History Evidence Not Reliable
On February 20, 2024 the Supreme Judicial Court issued an important decision in Commonwealth v. Arrington regarding "black box" algorithmic digital forensics. The prosecution tried to use iPhone "frequent location history" evidence to prove the defendant’s presence at the scene. Agreeing with arguments made by a large amicus coalition including MACDL represented by Attorney Wood, the SJC excluded the evidence. We were pleased to see the SJC rely on Attorney Wood’s litigation in Commonwealth v. Rintala to require that new, unusual expert testimony be excluded unless the Commonwealth can prove how the underlying technology worked and that it is reliable and testable.
Amicus: Private Individuals Entitled to Non-Public Show Cause Hearing in Brothel Case
On behalf of the Massachusetts Association of Criminal Defense Lawyers, Attorney Wood filed an amicus memorandum in support of the petition of thirteen defendants in the currently infamous “brothel case.” Like all members of the public, they are entitled to the presumption of innocence and a non-public show cause hearing to determine if there is probable cause that they committed a crime. The exceptions to the rule requiring closed hearings that are meant to ensure integrity in government do not apply here. None of the people involved is a person seeking or holding political office or in other key government positions, or in any other position as a public figure. If probable cause is found, the cases will be public. If probable cause is not found against these private individuals, the law does not entitle the public to know about such unsubstantiated allegations.
Amicus: Exclude Expert Testimony on Proprietary "Black Box" Technologies
Attorney Wood - on behalf of MACDL and in cooperation with a team from the Electronic Frontier Foundation, the ACLU, and NACDL - recently filed an amicus brief with the Supreme Judicial Court arguing that supposed expert testimony regarding proprietary “black box” technologies should be excluded. Such testimony does not pass Daubert/Lanigan test unless accompanied by testimony from an expert who knows what is in that black box! Here, a prosecution witness intended to testify regarding the defendant’s iPhone “frequent location history” without knowing anything about the algorithm that produces such a history, including the reliability of the data it uses or the reliability of the algorithm used to reach the supposed result. The defendant’s attorney successfully argued below that the testimony failed Daubert/Lanigan. The SJC should uphold that order.
We Defend Other Attorneys and Their Clients, Too
Attorney Fullerton along with MACDL Board Member Eduardo Masferrer recently helped convince the Supreme Judicial Court to reject the Commonwealth’s attempt to disqualify a prominent defense attorney from her client’s case. In Commonwealth v. Monteiro, the Commonwealth had alleged that the attorney had an unwaivable conflict of interest even though the attorney had followed the rules precisely. She disclosed the conflict to the client, obtained a written waiver of the conflict, and provided a copy to the Court. The attorney-client relationship is the foundation of zealous defense. We are gratified that the Court recognized the correctness of Attorney Fullerton’s arguments and refused to interfere in the attorney’s proper representation of her client.
Attorney Ramos Receives Emerging Defender Award
On May 23, 2023, Wood & Nathanson Senior Associate, Attorney Melissa Ramos received the Emerging Defender Award from the Committee for Public Counsel Services. The award honors defense attorneys “committed to indigent defense who have gone above and beyond the call of duty, excelled when facing challenging situations, and shown they are highly motivated to continuously learn and improve.” Recipients must “have demonstrated a commitment to the CPCS core values of courage, accountability, respect, and excellence.” We have known these things to be true about Attorney Ramos since she joined us in 2019, but we are extremely pleased that colleagues within the profession agree with us. We confess to cheering a little more loudly than we were probably expected to during the ceremony.
Attorney Ramos Gives Annual Caselaw Update at MCLE
On April 27, 2023, Attorney Ramos spoke at Massachusetts Continuing Legal Education’s 2023 Criminal Law Conference. Her topic was no small task: summarize the year in criminal law in one hour and fifteen minutes. She and her co-presenter Attorney Nicholas Morris got attendees up to speed on topics as varied as cell site location information and juror misconduct. Attorney Ramos’s broad and up to date knowledge of criminal law is a true asset to the firm and our clients.
Amicus Brief: Tighten Admissibility for Identification from Video
Attorney Wood was part of a team from MACDL, Harvard’s Criminal Justice Institute, and the New England Innocence Project that recently filed an amicus brief asking the Supreme Judicial Court to harmonize the evidentiary rules regarding the admissibility of out of court lay identification opinion based on a surveillance video with the evidentiary rules regarding traditional eye-witness identification testimony (i.e. opinion testimony about first hand observation of a suspect committing a crime). Specifically, the brief urges the SJC to apply the modern understanding of the psychological factors that affect the reliability of the identification process - which is already reflected in the model jury instructions for evaluation of eye-witness identification testimony - to the admissibility and evaluation of lay identification opinion from a surveillance video. This issue is becoming increasingly important as technological advances make surveillance video more prevalent.
Brownlow Speer Award for Appellate Advocacy
On March 1, 2023, Attorney Wood received MACDL's Brownlow Speer Award for "excellence in appellate advocacy in the defense of the accused." The award recognizes both Attorney Wood’s work on behalf of his own clients resulting in the reversal of more than twenty convictions and sentences and his work with MACDL in advancing the law, authoring or co-authoring approximately 120 amicus briefs as co-chair of MACDL’s amicus committee. (Pictured is Attorney Wood with CPCS Attorney Rafael Feliciano-Cumbas who received MACDL’s Hines-Burnham Award for young defenders whose work shows exceptional promise, skill, and innovation.)
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The Right to Equal Protection and Fourth Amendment Rights Are Distinct Rights; Courts Must Protect Both
On behalf of MACDL, Attorney Wood and a team of attorneys from Wilmer Cutler Pickering Hale and Dorr recently filed an amicus brief urging the Supreme Judicial Court to fully enforce people’s rights not to be targeted for stops based on their race, regardless of whether the police have reasonable suspicion. The Commonwealth has repeatedly argued that if the police have reasonable suspicion, then it does not matter whether someone has been targeted because of their race. This argument is pernicious, essentially reading the equal protection clause out of the constitution. The SJC must reject such arguments.
MACDL Conference Features Multiple Wood & Nathanson Attorneys
The 2022 conference of the Massachusetts Association of Criminal Defense Lawyers featured multiple Wood & Nathanson attorneys. MACDL’s newest board member, Senior Associate Melissa Ramos, made sure the event ran smoothly taking charge of logistics for MACDL’s largest substantive event of the year. Attorney Wood presented on gang databases as an unreliable and unconstitutional proxy for race. He also recruited many of the speakers. Attorney Jellison presented on the police use of “training and experience” as cover for racial profiling and lack of reasonable suspicion. Wood & Nathanson attorneys are consistently sought out to present at MACDL and other continuing legal education seminars.
Amicus Brief Helps Convince SJC to Require Inquiry Into Racist Juror Comments
In Commonwealth v. Ralph R (November 10, 2022), Attorney Wood on behalf of MACDL and Sara Silva of Hogan Lovells on behalf of the Center for Juvenile Justice, the New England Innocence Project, and the Korematsu Center for Law and Equality submitted an amicus brief that helped convince the Supreme Judicial Court to clarify that if there is any basis to suspect racial bias in jury deliberations, the trial judge has an independent duty to make an adequate inquiry to address the issue. Here, a juror reported during trial that “discriminating comments” were made. But the judge simply shrugged it off, saying “I have no idea” what the juror meant. The SJC made clear that the judge had an obligation to figure out what the juror meant, rather than turn a blind eye.
After Exoneration by Attorney Wood, an $8M Verdict for Nat Cosenza
After Attorney Wood’s decade-long fight to exonerate Nat Cosenza, a Worcester federal court jury returned an $8 million verdict for our client on September 30, 2022. After Nat’s exoneration, Attorney Wood joined efforts with the nationally prominent civil rights firm Loevy & Loevy. The civil rights suit on behalf of Nat, which was filed in 2018, was tried to a jury in Worcester federal court. That jury found that “Detective Hazelhurst’s fabrication of evidence caused Plaintiff Cosenza to be wrongfully convicted.”
When we take on a client, we see the case through. Our defense never rests.
Attorney Wood Co-Authors Brief on Duty of Zealous Advocacy
In Commonwealth v. Edwards, the SJC recently considered the question of whether defense counsel must disclose a fatal flaw in the Commonwealth’s case when questioned about it by a judge. Attorney Wood, on behalf of MACDL, argued forcefully in a brief co-authored with the ACLU and CPCS, that counsel have multiple ethical duties that require counsel not assist the Commonwealth in making its case. As Attorney Wood explained to Massachusetts Lawyers Weekly, this is a “no brainer.” If counsel has identified a flaw in the Commonwealth’s case, exploiting it is not “sandbagging.” Counsel has a duty of zealous advocacy, confidentiality, and loyalty to exploit that weakness.
Track Record of Success in Defending Children
Attorneys Jellison and Alpert are zealous defenders of children ensnared in the criminal justice system. They are widely recognized as leading experts on protecting the constitutional rights of young people in Massachusetts courts. For example, Attorney Jellison convinced the SJC to dismiss all cases in Massachusetts against children under 12 that were already filed when the Legislature raised the age of the jurisdiction for the juvenile court. And Attorney Alpert convinced the Appeals Court that the widely-used juvenile probation condition “comply with DYS” violated separation of powers. Click below to read more about their track record of successfully defending children.