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.
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.
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.
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.
Amicus Brief: Pretextual Stops Enable Racist Policing
Attorney Wood on behalf of MACDL joined the powerful amicus coalition in Commonwealth v. Daveiga, including CPCS, the New England Innocence Project, the ACLU of Massachusetts, and the Charles Hamilton Houston Institute for Racial Justice. The brief argues our consistent position that pretextual stops enable racist policing.
The amicus brief urges the SJC to extend the reasoning of Commonwealth v. Long and to adopt Chief Justice Budd's reasoning in her concurring opinion to ban all pretextual traffic stops. Traffic stops have become the modern equivalent of the general warrant, granting police officers arbitrary power to stop virtually any driver they want. The brief marshalls the overwhelming evidence that police use this arbitrary power disproportionately to stop and investigate people of color - most of whom are innocent of any crime.
This case has an undisputed fact pattern that exemplifies the problem. Gang unit cops were looking for a specific car but did not have probable cause to arrest anyone. The target car committed a minor traffic violation - being double parked. They saw Daveiga, who they considered as sort of "usual suspect", in the back seat. They ordered the car to move.
But later, they decided to stop the car explicitly on the "pretext" of the prior minor double parking infraction, which they had already decided to excuse! Really, they wanted to investigate the hunch that Mr. Daveiga, a Black Cape Verdean passenger, was up to no good. The arresting officer had stopped him thirty times in the past. They ordered him out, searched and found a gun in the car.
"Zoom" Hearings Violate Constitutional Rights
On November 20, 2020, Attorney Wood on behalf of MACDL - along with Katherine Naples-Mitchell of the Charles Hamilton Houston Institute for Race & Justice and Meredith Shih of the Boston Bar Association - filed a joint amicus brief arguing that forcing defendants to have suppression hearings heard over “Zoom” will disparately harm people of color. Zoom hearings disproportionately limit access to these public hearings that determine whether police have engaged in unconstitutional conduct in cases that are disproportionately brought against people of color.
No "Dead Time": Convictionless Time in Jail Deserves Credit
On November 13, 2020, Attorney Wood and a team from Foley Hoag including Attorney Christopher Hart filed an amicus brief urging the SJC to hold that defendants who were jailed but whose convictions were invalid should be allowed to ask judges to credit that time in jail against another conviction. This is particularly true for defendants convicted in the infamous Massachusetts drug lab scandals. The principle is simple: the government took more of someone’s life than it was entitled to, that should count for something if the person is validly punished later.
The Road to Commonwealth v. Long
Following up on our recent post, Attorney Wood recently wrote a longer piece describing the litigation the led to the SJC’s recent decision in Commonwealth v. Long, which lessened the burden for defendants moving to suppress due to racial profiling or “Driving While Black.” You can read the full article at the MACDL website here.
Amicus Brief: Racist Pretextual Stops and Distracted Driving Law
Attorney Wood was proud to be part of a team arguing that the Supreme Judicial Court should abandon its cases allowing for pretextual stops and restricting how defendants can prove that a particular stop was racially discriminatory. The amicus brief goes on to point out that the Commonwealth’s new “Distracted Driving” hands-free law limits data collection on stops by individual officers, making it essentially impossible to ever prove a claim of discrimination. The Court should replace the current test with a test that asks whether a driver would have normally been stopped for the violation without a pretext. If not, then the prosecution has the burden to prove that the stop was not discriminatory. This amazing team was made up of Oren Nimni for the Lawyers for Committee for Civil Rights, Katharine Naples-Mitchell for the Charles Hamilton Houston Institute for Race & Justice, Chauncey Wood for the Massachusetts Association of Criminal Defense Lawyers, and Radha Natarajan for the New England Innocence Project.
Important Amicus Brief Regarding Police Stops
Today, the SJC heard argument in Commonwealth v. Tykorie Evelyn, an important case regarding police stops in so-called “high crime” areas where residents may seek to avoid contact with the police out of nervousness or fear, not consciousness of guilt. As co-chair of the MACDL Amicus Committee, Attorney Wood was proud to help pull together and assist a great team from Foley Hoag consisting of Anthony Mirenda, Neil Austin, Rachel Hutchinson, and Ned Melanson. Their brief powerfully argues, among other things, that nervousness or lack of engagement by a black teenager during a police encounter is not indicative of criminality. You can read the brief here.
Amicus Brief: Indigent Defense Crisis
Today, Attorney Wood and a team of lawyers filed an amicus brief on behalf of MACDL, Hampden Lawyers for Justice and the ACLU in Carrasquillo v. Hampden County District Court, an appeal pending before the SJC and scheduled to be argued in November.
In this case, CPCS is challenging the order of the Hampden County District Court requiring Hampden County staff public defenders to accept all appointments in the Springfield District Court for which bar advocates could not be found. The appeal is a vehicle to discuss the growing shortage of bar advocates across the Commonwealth. Like CPCS, MACDL et al. assert that the source of the problem is the Legislature's failure to increase rates paid to bar advocates over the past 15 years since the SJC instructed the Legislature to address this issue in its 2005 decision, Lavallee. Unlike CPCS, MACDL et al. urge the Court to increase rates on its own authority. Because the legislature has failed to act and that failure is now causing a breakdown in the criminal justice system, MACDL et al. argue that the only solution to this constitutional crisis is an increase in rates paid to bar advocates and the SJC has the authority to order this increase effective immediately.
The legal team is:
- Chauncey Wood: MACDL amicus director
- Matt Segal: ACLUM Legal Director
- Jessica Lewis: ACLUM staff attorney
- Robert McDonnell: Partner, Morgan Lewis
- Timothy Burke:- Partner, Morgan Lewis
- Matthew Bohenek: associate, Morgan Lewis
- David Hoose: Hampden President, Lawyers for Justice
Amicus Brief: Right to Alternative to Police Impounding Your Vehicle
On October 17, Attorney Wood co-authored an amicus brief on behalf MACDL and the ACLU in a Fourth Amendment case. The brief argues that police must notify people that they may propose an alternative to impoundment of their vehicle before the police may impound it. This is critical because impoundment inevitably leads to an invasive inventory search and because impoundment is an unreasonable financial burden on poor people if there is reasonable alternative to impoundment.
Amicus Brief: Defendant Has Right to Know His Attorney Was Not Appointed, Not Paid
On October 15, Attorney Wood filed an amicus brief in the Supreme Judicial Court on behalf of the Cato Institute in Commonwealth v. Francis. In this case, trial counsel volunteered to serve as Mr. Francis's pro bono counsel without telling Mr. Francis that he was not being paid because the trial judge refused to appoint trial counsel as not qualified to handle murder cases. We argue that depriving Mr. Francis of this crucial information was a violation the right to choice of counsel and resulted in structural error requiring automatic reversal.
Amicus Brief: Not Guilty of Accessory to Murder
On May 1, 2019, the Supreme Judicial Court ordered a not guilty verdict for a defendant charged with accessory to murder. On behalf of MACDL and CPCS, Attorney Jellison authored an amicus brief in support of the defendant who was represented by Attorney Jin Ho King of MRDK Law. The witness refused give a phone number, which he had a right to do, and gave evasive answers. He was just scared and wanted to distance himself. The SJC adopted our argument that he didn't provide the killer with a defense or mislead police.