Wood & Nathanson, LLP

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Wood & Nathanson, LLP has moved its offices to 55 Union St., Fourth Floor, Boston, MA 02108. All email, phone, and fax contact information remains the same. The office is adjacent to Haymarket Station and public parking.

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.

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.

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 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.

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.

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.

On April 11, 2022 Attorney Caroline Alpert convinced the Supreme Judicial Court to ban the prosecutorial practice of manipulating continuances past a juvenile’s eighteenth birthday for the sole purpose of obtaining more punishment. If a juvenile is sentenced while seventeen or younger, Massachusetts statutes prohibit punishing (“rehabilitating”) them beyond their eighteenth birthday. If sentenced after their eighteenth birthday, they can be committed to DYS until nineteen. Some Massachusetts prosecutors were moving to continue sentencing past the juvenile’s eighteenth birthday in order obtain longer commitments. The SJC prohibited this kind of manipulation, requiring prosecutors to prove by clear and convincing evidence at an evidentiary hearing that continued commitment is “necessary for the rehabilitation of the juvenile.” Read the opinion here.

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.

On September 27, 2021, a unanimous SJC reversed the first degree murder conviction and life sentence of Attorney Wood's client Cara Rintala in a 47 page decision. After two trials in which juries could not agree on a verdict, the prosecutor called a bench chemist at a paint company to offer "expert" testimony in a third trial that paint found on the victim's body had been poured intentionally just before police arrived at the crime scene. His opinion convinced the third jury to convict. On appeal, the SJC accepted Attorney Wood's argument, supported by the affidavit from a professor of material science and several amicus briefs, that this "expert" opinion was junk science that was not reliable because it did not follow the scientific method and should not have been admitted. The decision is a powerful precedent that trial judges must demand that prosecutors who offer expert opinion purportedly based on new science first demonstrate its reliability - using the scientific method - before permitting the jury to hear it.

Attorney Wood and his associate Melissa Ramos immediately filed a motion seeking Ms. Rintala's release while the Commonwealth decides whether to attempt to retry her a fourth time.

On August 16, 2021, Attorney Nathanson along with Attorney Jellison convinced the Supreme Judicial Court to issue a landmark ruling banning discrimination against LGBTQ and Black jurors in jury selection. Attorney Nathanson and Attorney Jellison convinced the SJC to go beyond its Goodridge gay marriage decision and rule that LGBTQ persons are part of a constitutionally protected class. Further, the SJC reversed our clients’ convictions because the trial judge failed to protect Black jurors from discrimination. The judge repeatedly ruled that there were enough Black jurors on the jury, so the prosecutor was not discriminating in striking other Black jurors. But in heavily minority communities like Boston, this is an open invitation to discrimination by allowing just enough Black jurors onto the jury and excluding all others, even if they are qualified. In a strong concurrence, SJC Justice Lowy argued that prosecutors should always have to explain their juror strikes if a defendant objects. A powerful and persuasive amicus brief was filed by GLAD, Black and Pink MA, and the Charles Hamilton Houston Institute for Racial Justice.

On behalf of MACDL, Attorney Wood co-authored an amicus brief challenging racist pretextual stops in Commonwealth v. Garner. Joining the Charles Hamilton Houston Institute for Racial Justice, the Committee for Public Counsel Services, and the New England Innocence Project, the brief argues that the routinely degrading practice of pretextual stops must be abolished. This case, dealing with a person who was repeatedly stopped by the same police officer for minor offenses, shows how pretextual stops and justifications for the inevitable searches that follow depend on racist assumptions of dangerousness, subjective police conclusions, and inferential leaps sold to courts as police “training and experience.” That kind of junk evidence in the service of an oppressive, racist practice must be banned from our courts.

In a landmark ruling, the Supreme Judicial Court held that defendants may, in many circumstances, insist on in-person hearings rather than be forced to conduct a hearing via Zoom. In so ruling the SJC agreed with arguments made jointly by Attorney Wood for MACDL, along with the Charles Hamilton Houston Institute for Race & Justice and the Boston Bar Association. Requiring Zoom hearings has a disparate impact on poor people and people of color: they tend to do worse in such hearings and they have worse access to broadband internet necessary for such hearings. For a more detailed description, you can read the Boston Bar Association’s press release here.

Attorney Wood recently consulted on and was a signatory (as MACDL’s representative) to an amicus brief in Commonwealth v. Sweeting-Bailey. This brief by a coalition of civil rights groups explains why gang databases are artificial racist constructs and unreliable indicators of criminal behavior. Therefore, the fact that someone has been placed in a gang database should not be a basis for reasonable suspicion that he or she has committed a crime. Read the brief here.

Attorney Wood was recently interviewed by the American Bar Association's Judicial Division Record about MACDL's support for a defendant who opposed being forced to waive his constitutional right to an in-person suppression hearing. Read the article here. The case, Commonwealth v. Vasquez Diaz, is currently pending in the SJC. Read the brief here.

Recently, Attorney Jellison successfully defended a juvenile in disciplinary proceedings initiated by an amateur athletic organization. The juvenile was not involved in any misconduct, and Attorney Jellison's careful investigation revealed ample exculpatory evidence and the misunderstanding that resulted in accusation of her client. Because of this careful work, Attorney Jellison was able to end the proceedings without the need for a stressful evidentiary hearing for her young client.