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The Insanity Defense

November 29, 2013

The Insanity Defense in criminal law has always been a controversial topic to defendants, prosecutors, defense lawyers, judges and the public.  Attorney William F. Sullivan at Sullivan and Sweeney has recently been involved in two high profile murder cases where the “insanity defense” was utilized, He has a unique perspective as to the how this defense is used and its problems and the possible improvements that can be made.

In Commonwealth v. Fujita and Commonwealth v. Lucas Walters, issues of serious mental health issues were raised before the cases even went before a jury in these Massachusetts murder cases.

Juries have traditionally been reluctant to acquit a defendant on the basis of an Insanity Defense and the Fujita and Walters cases showed the inherent difficulties in presenting this type of defense even where, there is strong valid evidence of mental illness. Under the law, a defendant is (supposed) to be acquitted if the prosecution cannot prove that the defendant was not criminally responsible at the time of the crime. A defendant is not criminally responsible if because of a major mental illness the defendant did not appreciate what he was doing was wrong or that because of the mental illness he could not control his actions. This is fine in theory but in reality juries have traditionally had difficulty following this instruction.

Why and what is needed for a successful Insanity Defense?

In order to be successful in presenting an Insanity Defense, there are almost always certain factors that must be presented to a jury or judge;

1. There should be some pre existing history of mental illness. This can be found either in previous treatment or diagnosis or by documented previous actions consistent with the illness. This can be dealt with if not present, but counsel should look long and hard for any such prior evidence.

2. An effective and qualified expert who can effectively explain the mental illness and how the illness affected the defendant is vital. The expert must be able to apply his/her medical opinions to the above stated legal standard. This expert also must be able to withstand the cross examination of the prosecutor and the cynicism of the jury. The expert must be part teacher and part doctor.

3. A strong cross examination of the prosecution’s expert is an absolute necessity. The defense expert can help prepare counsel for cross examining the prosecution’s witness. In addition, counsel must be up to date with his/her knowledge of the applicable research regarding the medical literature and research upon which the witness bases their opinion.

It is also helpful to seek counsel comfortable worth this type of case. There are always complicated discovery issues relating to prior medical records, court ordered psychiatric exams and other issues unique to this type of case. Many experienced defense attorneys have never handled an Insanity Defense and may be reluctant or intimidated by the unique character of these type cases. If you need an experienced attorney in these matters contact Attorney William F. Sullivan at Sullivan and Sweeney 617-328-6900 to discuss the insanity defense.

In later blogs, I will discuss the various suggestions being put forward in legal circles to make this long standing and long accepted defense more fairly applied such as in the Fujita and Walters cases mentioned above. 

 

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Family Law, Divorce, Mediation

November 22, 2013

Family Law, Divorce, Mediation

             At Sweeney and Associates we understand how difficult it is for families going through divorce, custody disputes, or child support issues. We pride ourselves in not only representing our clients zealously in and out of court but also assisting them through the difficult times they endure during the litigation. Attorney Richard Sweeney and Attorney Sabrina Bonanno represent clients going through divorce, whether it is contested or uncontested, clients wanting to change the custody and visitation arrangement, and clients who are dealing with a parent who has not paid child support or if one parent seeks to change the amount of child support owed. Call us at 617-328-6900 or email us at rsweeney@rsweeneylaw.com to discuss your case.

In Massachusetts, you can either file for a contested or uncontested divorce. It is important to note that whether you file for a contested or uncontested divorce, an automatic restraining order applies to both parties which prohibits either spouse from engaging in any activity that would affect the financial status of either or both spouses.

Uncontested divorces are governed by G.L. c.208, Section 1A. An uncontested divorce based on an irretrievable breakdown of the marriage is filed when both parties agree they want to separate. The document filed is called a Joint Petition for Divorce. If you are filing for an uncontested divorce the following must be filed:

  • Joint Petition for Divorce
  • Notarized Separation Agreement.
  • Affidavit of Irretrievable Breakdown  (signed by both parties)
  • R-408-Certificate of Absolute Divorce or Annulment Statistical Information
  • Certified copy of civil marriage certificate
  • Financial Form
    • Long Form if you earn more than $75,000
    • Short Form if you make less than $75,000
  • Affidavit of Care and Custody (if you have children with the spouse you are divorcing)
  • Child Support Guidelines Worksheet (if you have children with the spouse you are divorcing)
  • Participate in a Parent Education Program (if you have children with the spouse you are divorcing)
    • This is done after the divorce paperwork is filed

Contested divorces are governed by G.L. c.208, Section 1B. A contested divorce based on an irretrievable breakdown of the marriage is filed when only one party wants a divorce. If one party files for a contested divorce and then the other party agrees that there has been an irretrievable breakdown of the marriage, the Complaint for Divorce can be amended to a Joint Petition. If you are filing for a contested divorce the following must be filed:

  • Complaint for Divorce
  • Affidavit of Irretrievable Breakdown
  • R-408-Certificate of Absolute Divorce or Annulment Statistical Information
  • Certified copy of civil marriage certificate
  • Financial Form
    • Long Form if you earn more than $75,000
    • Short Form if you make less than $75,000
  • Affidavit of Care and Custody (if you have child(ren) with the spouse you are divorcing)
  • Child Support Guidelines Worksheet (if you have child(ren) with the spouse you are divorcing)
  • Participate in a Parent Education Program (if you have child(ren)
    • This is done after the divorce paperwork is filed
  • Within 45 days, of serving the other spouse with the Summons and Complaint, both parties must exchange financial information as required by Supplemental Probate Rule 410

A Complaint for Separate Support can be filed if one or both parties want to separate but do not want to divorce. These Complaints are governed by G.L. c.209, Section 30. The following documents must be filed:

  • Complaint for Separate Support
  • Certified copy of civil marriage certificate
  • Financial Form
    • Long Form if you earn more than $75,000
    • Short Form if you make less than $75,000
  • Affidavit of Care and Custody (if you have child(ren) with the spouse you are divorcing)
  • Child Support Guidelines Worksheet (if you have child(ren) with the spouse you are divorcing)

When facing life altering issues such as these it is vital to your future and your family  that you hire reputable and experienced attorneys to handle your case. If you are need assistance from experienced, knowledgeable attorneys contact Sweeney and Associates at 617-328-6900 or email us at rsweeney@rsweeneylaw.com  today and let us help you navigate the system and obtain the best result possible.  These issues affect you and your whole family and we are experienced and can provide you and your family with the resources and help necessary to deal with these problems.

Attorney Richard J. Sweeney is a board certified mediator and can assist you and your family in any of these matters in an economical and just manner.  Please call 617-328-6900 to discuss your inexpensive option to costly litigation.  We can draft separation agreements and final court documents for both spouses if there is agreement on disposition of the assets and other issues.  If you agree on most issues often a session or two with Attorney Richard Sweeney can help you resolve outstanding disputes saving time and money.

Child Pornography Laws

November 15, 2013

Child Pornography Laws

           Sweeney and Associates has handled high profile child pornography cases which have received not only national but international media coverage in the cases of Robert Diduca and Geoffrey Portway. We have also handled numerous cases in State and District Courts in this area.  When you are faced with charges involving child pornography the laws are harsh and it is extremely important that you hire an experienced attorney familiar with both Massachusetts Child Pornography Law and Federal Child Pornography Law. At Sweeney and Associates we have handled Child Pornography and Sexual Assault cases both in state courts and federal courts and are very knowledgeable in this area.

Depending on the charges, Possession of Child Pornography, Production of Child pornography or Distribution of Child Pornography, as well as the type and amount of material you possess, you may be charged in a District or Superior Court in Massachusetts or your case could be taken over and brought directly into Federal Court. Some cases may start out in District Court but then the Federal Government will take over the case and charges will be brought in Federal Court due to the type of images you possess, the amount, whether you have been distributing these images by trading online or engaging in Peer to Peer Networks. Do to the level of investigatory resources the Federal government has allocated to investigate these crimes your case may well begin and remain in Federal Court. Peer to peer networks and chat rooms are self monitoring and reporting potential violations to the police and the police and federal agencies have agents who also monitor these sites and track IP addresses right back to your computer.  They then come with a search warrant and seek to question you and most clients end up hurting their case fatally by giving a statement to the police during these searches instead of invoking their 5th Amendment privilege to remain silent and not answer any questions.  Because of this, it is important to hire an attorney experienced with handling these types of charges in any court.

With any case involving child pornography, our primary goal is always to fight the charges against you and force the government to prove not only that it was your computer but that it was actually you using the computer to download or distribute images or videos. Note that in one case that we were involved with the police raided the wrong home, arrested and charged the occupant with Child Pornography charges and it took months before he was cleared when it was proven that a neighbor was using his wireless router to access the internet.

At Sweeney and Associates we are very proactive in fighting these charges.  We begin by filing motions to obtain all the discovery information available including copies of the hard drive(s) of your computer because discovery is a key component in Child pornography cases.  Generally, the charges are based on the Commonwealth or Government tracking your chat room conversations, Peer to peer networking exchanges, IP address, and/or your email address where photographs or videos were sent or received. Being knowledgeable in the field of technology and having a computer expert on hand allows us, in some cases, to discredit the reliability of the tracking technology and provides the defense that it was another individual responsible for the possession or distribution of child pornography.

After we obtain and review all the discovery, cases generally follow one of two paths. In some cases, we can proceed with filing a motion to suppress certain evidence or the search warrant. We can also file motions to dismiss based on our review of the discovery including if the images do not meet the statutory definition of child pornography (see below) or if the person depicted appears to be of age. In other cases, due to the evidence in their possession, including any statements you may have made to the investigators, we must try to reach an agreement with the prosecutor known as a plea agreement.

While our main goal is always to keep you from being convicted, we are also very well aware of the stigma associated with these kinds of charges and the collateral consequences including having to register as a sex offender if you are convicted at trial. If negotiating a plea is in your best interest and you agree, then we will discuss your case with the prosecutor. We have been successful in reducing or amending certain charges so that a person receives only probation and/or does not have to register as a sex offender.  (NOTE this is not a promise that this will happen in your case as each case is different and attorneys cannot promise any outcome in any particular case.  Past achievements are not promises of future achievements.)

Below is a chart depicting the most common charges a person will face in both state or federal court and the punishment for each charge. Please note this is not an exhaustive list and for those offenses that increase incarceration time based on prior convictions, there are only certain convictions that qualify for the increase in incarceration time.

STATE STATUTES AND PUNISHMENTS

G.L. c. 272 29A Production of Child Pornography State prison not less than 10 years nor more than 20 yearsOR$10,000- $50,000 fineORBoth incarceration and fine
G.L. c. 272 29B Distribution of Child Pornography(depiction of a person under 18 in a state of nudity or engaged in a sexual act) State prison not less than 10 years nor more than 20 yearsOR$10,000- $50,000fineOR3x the economic gain from distributing the imagesOR

Both incarceration and fine

G.L. c. 272 29C Possession of Child Pornography State prison not more than 5 years ORHouse of Correction not more than 2.5 yearsOR
$1,000-$10,000 fineOR
Both incarceration and afineMust register as a sex offenderCase Cannot Be Continued Without A Finding

FEDERAL STATUTES AND PUNISHMENTS

 

18 U.S.C. § 2251(a) Sexual Exploitation of a Child Not less than 15 years nor more than 30 years for first convictionNot less than 25 nor more than 50 years if second convictionNot less than 35 years nor more than life if third or subsequent convictionANDFine imposed
18 U.S.C. § 2252(a)(2) Distribution of Child Pornography Not less than 5 years nor more than 20 years for first convictionNot less than 15 years nor more than 40 years if prior convictionANDFine imposed
18 U.S.C. § 2252(a)(4)(B) Possession of Child Pornography Not more than 10yearsORFine imposedORBoth incarceration and a fineNot more than 20 years if the child is under 12

AND

Fine imposed

Not less than 10 years nor more than 20 years if second or subsequent conviction

AND

Fine imposed

Most states mirror the Federal Laws on Child Pornography found in 18 USC § 2256:

For the purposes of this chapter, the term—

(1) “minor” means any person under the age of eighteen years;

(2)

(A) Except as provided in subparagraph (B), “sexually explicit conduct” means actual or simulated—

(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

(ii) bestiality;

(iii) masturbation;

(iv) sadistic or masochistic abuse; or

(v) lascivious exhibition of the genitals or pubic area of any person;

(B) For purposes of subsection 8(B)  [1] of this section, “sexually explicit conduct” means—

(i) graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited;

(ii) graphic or lascivious simulated;

(I) bestiality;

(II) masturbation; or

(III) sadistic or masochistic abuse; or

(iii) graphic or simulated lascivious exhibition of the genitals or pubic area of any person;

(3) “producing” means producing, directing, manufacturing, issuing, publishing, or advertising;

(4) “organization” means a person other than an individual;

(5) “visual depiction” includes undeveloped film and videotape, data stored on computer disk or by electronic means which is capable of conversion into a visual image, and data which is capable of conversion into a visual image that has been transmitted by any means, whether or not stored in a permanent format;

(6) “computer” has the meaning given that term in section 1030 of this title;

(7) “custody or control” includes temporary supervision over or responsibility for a minor whether legally or illegally obtained;

(8) “child pornography” means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—

(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;

(B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or

(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

(9) “identifiable minor”—

(A) means a person—

(i)

(I) who was a minor at the time the visual depiction was created, adapted, or modified; or

(II) whose image as a minor was used in creating, adapting, or modifying the visual depiction; and

(ii) who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature; and

(B) shall not be construed to require proof of the actual identity of the identifiable minor.

(10) “graphic”, when used with respect to a depiction of sexually explicit conduct, means that a viewer can observe any part of the genitals or pubic area of any depicted person or animal during any part of the time that the sexually explicit conduct is being depicted; and

(11) the term “indistinguishable” used with respect to a depiction, means virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct. This definition does not apply to depictions that are drawings, cartoons, sculptures, or paintings depicting minors or adults.

Even though the federal statutes state the length of incarceration, it is important to note that an individual’s sentence in Federal Court is governed by the Federal Sentencing Guidelines which contain “enhancements” based on the nature and number of images, whether a computer was used, the age of the child and other such issues that arise in almost every case.  Federal Judges are not generally pleased with these enhancements and have deviated from them to reduce the defendant’s jail time.  You want an attorney that is aware of these and will negotiate on your behalf to reduce the penalty. While judge’s have discretion to deviate from the Guidelines by either increasing or decreasing an individual’s sentence, most often the judge will sentence an individual based on the Guidelines calculation. The Federal Sentencing Guidelines determine a person’s sentence by starting at a base level for the specific charge and then the sentence is either increased or decreased based on a variety of factors. A person’s criminal history is also taken into account in determining one’s sentence. A person’s sentence is also reduced if they take responsibility for their crime by pleading guilty. Attorneys at Sweeney and Associates are knowledgeable in how to calculate a sentence under the Guidelines which is invaluable in determining whether or not your best option is to proceed with a trial or accept a plea agreement.

Attorney Richard Sweeney is experienced and knowledgeable in every aspect of child pornography charges.  It is vital to your future and liberty that you hire reputable and experienced attorneys to handle your case. If you are facing these charges, contact Sweeney and Associates at 617-328-6900 or email us at RSweeney@RSweeneylaw.com  today and let us help you navigate the system and obtain the best result possible.  This type of charge affects you and your whole family and we are experienced and can provide you and your family with the resources and help necessary to deal with these charges.

MASSACHUSETTS HARDSHIP LICENSE

January 14, 2013

FIRST OFFENSE OUI HARDSHIP LICENSE APPLICATIONS TO THE REGISTRY OF MOTOR VEHICLES

The following is information regarding the availability of hardship licenses for people whose OUI cases have been disposed of in court pursuant to MGLc.90,s.24D.  Please be advised that this information is being provided solely for the purpose of allowing a defendant to better prepare for their hardship hearing before appearing at a Registry, and that the Registry may require other documents or information before rendering a decision.  At a minimum, please be aware of the following:

 Hardship licenses are available on any case where a defendant has been properly granted a disposition under MGL c.90, s24D.  The Registrar will not entertain requests in cases where the records of the agency reflect that such a disposition was not available to the defendant.

  1. In order to allow for the courts and the Registry to exchange information regarding these dispositions,
  2. hardship applicants must wait 3 business days after their court date before appearing at the Registry, and MUST first have appeared for in-take at their assigned first offender program.

Example:  On a court disposition on Monday, you may not appear at the Registry until Thursday.

Hardship applications may only be made at Registry locations that conduct hearings.  Presently, those branches are: Boston (630 Washington Street), Brockton, North Attleboro, Lowell, Worcester, Springfield and Lawrence. Theses locations are subject to change without notice.

You may not operate a motor vehicle until such time a hardship license may be granted.  Any evidence that you have been drinking since you have been suspended in this matter will be grounds for denial of your application.

You must provide the following documentation at the hearing:

:  Proof of hardship (i.e. employment, education, medical, etc.)

:  Proof of enrollment in a Massachusetts First Offender Program approved by the Department of Public Health.  No out of state programs authorized by MGL c.90, s24D.  You must first appear at the first offenders program that you have been assigned to for your initial interview, and have that documented on letterhead from the program.

IMPORTANT NOTE:  Hardship licenses are not available under this law if you are suspended or revoked for any reason apart from this case, if charges other than OUI in this case cause you to be suspended or revoked, or if these charges combined with other incidents on your driving record result in other suspension or revocation action.

For assistance with this or any other legal problem contact Attorney Richard Sweeney at 617-328-6900 or at RSweeney@Rsweeneylaw.com

Search and Seizure

October 17, 2012

Do the police have to advise you of your rights?

Police need not advise you of your rights and they are not responsible for advising you of your rights to refuse an illegal search. They are not required to tell you if and when they can make a permissible search. Police need not tell you that you can withhold permission for them to enter your home, nor that police have a right to seize anything in plain view.

JUST SAY NO!

That should be the words we all use when the police ask if they can search you, your car or your home.  Consent from you, in most cases, makes the search legal and everything they discover admissible against you in court.

Once you are placed under arrest and handcuffed, police may search your vehicle without a search warrant only if you are within reach of the vehicle, or if the police reasonably believe that evidence can be found in the vehicle that will prove the offense for which you were placed under arrest. The purpose of a search is to uncover and expose evidence that can then be seized by the police.   Every citizen of the United States has a right under the Constitution to a reasonable expectation to privacy. However, those rights are limited. Police however often take liberties in stopping people without probable cause, and arresting people based on illegal foundations.

A search in and of itself, violates a person’s reasonable expectation of privacy. Permissible searches are often called legal searches, while impermissible searches are often called illegal searches or prohibited searches. If the violation of a person’s expectation to privacy is reasonable, then the search is permissible. A reasonable search can occur with explicit consent or implicit consent. If a person is asked if they may be searched and that person then responds affirmatively, consent has been given to the search. By giving consent, the searched person no longer has a reasonable expectation to any privacy. If contraband, paraphernalia, a weapon, or some other piece of evidence or if criminal activity is “in plain view”, an exception to consent arises under the law. That type of voluntary exposure allows the police to view the article without a search. Since a search is not needed to view something “in plain view”, then there is no violation of a person’s reasonable expectation to privacy. To put it another way, the law assumes that if the person intended that which was “in plain view” to be kept private, then he or she would not have placed it in a position where it could be easily viewed by anyone.

A police stop is a seizure under the law. If the seizure is reasonable, then it is permissible, otherwise it is a violation of a person’s Fourteenth Amendment rights (also commonly termed an illegal search and seizure). If a police officer observes criminal activity, or activity which would lead a reasonable person to conclude that it was of a criminal nature, or if an informant provides sound and verified information to the police officer about a criminal activity, then a subsequent seizure is reasonable and permissible. If at the time of a stop, a police officer sees or has a reasonable belief that the suspect is armed, the officer may “pat down” the suspect and seize any weapons that could cause harm to the officer or another person during an arrest.

Can they search my home?

In almost all instances, a search warrant is required for the police to enter a private dwelling. In most other instances when a search warrant is not required, the officer must have probable cause. However, there are exceptions to the rule. If an officer has an arrest warrant and in the process of executing the warrant in the suspect’s yard the suspect gets away and runs into his home, the police have a right to enter the home in “hot pursuit” to make the arrest. If an officer has probable cause (more than a reasonable belief that a crime has been committed), and he cannot take the time to obtain a warrant without losing evidence or the suspect, then he may enter and search and seize without a warrant. An officer may also search a home if he has consent to do so, however, whether that consent allows permissible search of another dwelling member’s belongs is quite another story. If the person who gives consent to the search has authority to give the consent, then the search may be permissible so long as it does not violate the rights of another person. The mere sharing of a home (roommates) does not give one roommate authority to consent to a search of the other roommate if there existed a reasonable expectation to privacy. The right to a reasonable expectation to privacy is a personal right to privacy of the person’s physical body and his immediate surroundings. A search includes a person’s clothing, body, and immediate surroundings or those surroundings within his reach. For example, a legal search of a person sitting in a recliner would include the immediate area surrounding the recliner as well as the person’s body.

What if the search was not legal?

If a search or a search and seizure was impermissible, under the exclusionary rule, the evidence gathered from that seizure is inadmissible in the defendant’s criminal trial. As you might expect, there are exceptions to that rule, too. If the search was to protect the public, if one or more legal searches and one or more illegal searches are conducted, or if the search revealed evidence that would have been otherwise known or produced by some other means regardless of the search, then the search – even though illegal – and the evidence gathered can be admitted into evidence at trial. The exclusionary rule prohibits evidence obtained in an illegal manner from being used against a person during a criminal trial.  I cannot cover all of the exceptions to the rules of evidence for criminal prosecution. The exclusionary rule has many exceptions to determine which is legal and illegal evidence. As well, it is only one legal doctrine used to analyze evidence in a criminal trial, and each procedure (search and seizure) must be analyzed separately.

As you can see this is an area that is full of issues that can benefit you if you are arrested and the police seize evidence to be used against you as a result of a search and seizure.  The better lawyers study these issues and the cases that come out on a weekly basis to ensure that your rights are protected.

If the evidence is thrown out your case often is thrown out with it.

Experienced attorneys look at the evidence and file motions to suppress (throw out) the evidence if it was a result of an unlawful search and seizure.  In short your entire case can depend on a good lawyer looking at the facts and applying the law.

If you are arrested…

Make sure that you hire an experienced defense attorney that specializes in this area.  The law firm of Sullivan and Sweeney has extensive experience in this area and we can assist you in evaluating your case and providing the best defense for you.  Research any attorney you are entrusting your future to and be sure to look at the experience and background of Attorneys Richard Sweeney and Sabrina Bonanno at wwwRsweeneylaw.com.  Call us at 617-328-6900 for immediate help or send an email to RSweeney@RSweeneylaw.com.

Massachusetts License to Carry a Firearm Denied Due To My Old Criminal Record

August 5, 2012

In the last 6 months many Massachusetts Police Officers and others have been denied a renewal of their license to carry a firearm despite the fact that they have had a license to carry for over 30 years in some cases.  CJIS (Criminal Justice Information Services Division) now has gained access to juvenile records in the 1960’s and police officers and others are being denied renewal for crimes that were revealed to investigators when they first applied for a job as a police officer or, for others, were revealed before getting their first license to carry a firearm.

What can be done?  Most of these issues revolve around probation or suspended sentence issues where a Not Guilty or Dismissal is needed before you can be approved for a Massachusetts License To Carry A firearm.

Attorney Richard Sweeney is able to go back to these courts and file motions that allow for the record to be changed thus enabling CJIS to approve the application.  If you are a police officer who has this problem, or a current or former Massachusetts resident with a conviction on your record there are steps that can be taken to help you clean up your old record and keep your job.  I have a proven record of success this matter and can be reached at 617-328-6900 or email me at RSweeney@RSweeneylaw.com.

Sweeney & Associates is an experienced Massachusetts Criminal Defense Firm and can assist you in all criminal cases, civil cases or family law issue.  Call us at 617-328-6900 or see our website at www.Rsweeneylaw.com. (more…)

The New CORI Law and who can see my record

June 15, 2012

What is a “record” and who can see it? (Criminal Offender Record Information of “CORI” laws)

 

What does “CORI” mean?

A: A CORI, or Criminal Offender Record Information, consists of records and data in any communicable form compiled by  a Massachusetts  justice agency.  They relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, sentencing, incarceration, rehabilitation, release or other judicial proceedings.  They DO NOT include juvenile criminal history, unless the juvenile was adjudicated as an adult on the charges.

What is iCORI and the iCORI response?

A: iCORI is a newly developed computer system used by the Department of Criminal Justice Information Services to file CORI records provided to them daily by the trial courts.  An iCORI response is the confidential information regarding certain criminal offenses a person was charged with in Massachusetts, and on which that person was arraigned in either District Court or Superior Court.  Once a person is arraigned, they have a “record”, which will never disappear without a court order.

How can I get my dismissed case removed from my criminal record?

 

A:         The probation department routinely opposes any attempt to remove anything from your record.  In limited circumstances, such as the wrong person was listed or misidentified in some way, a court order will accomplish that result.  In most cases, the best you can hope for is a “sealed record”.  Misdemeanors may be sealed 5 years after the conviction or any period of incarceration, whichever is last.  Felonies may be sealed 10 years after the conviction or any period of incarceration, whichever is last.

However, that is not always a good thing, because it will come back, in certain circumstances, as “sealed”, which invites speculation.  Criminal justice agencies may obtain all criminal record information, including sealed records, for the performance of their duties.

Contact us to discuss this matter.  The best way to prevent problems is to contact us immediately when you suspect the police are interested in you as there are various ways of dismissing cases PRIOR TO ARRAIGNMENT, at which time there is no “record” prior to arraignment.

I was never charged with some of the offenses that appear on my criminal record.  Where do I go to dispute this?

A: You need to contact the probation department of the court in which the disputed charges were brought.  This means if you are disputing several different charges out of several different courts, you must contact each of the probation departments of each of the various courts.  We can assist you in bringing motions before the court to prove you were the not the person charged, and ask to have the matter “expunged” from your record.  These are court proceedings where you should have an attorney representing, as they are not simple processes.  Often it is necessary to go to the police departments themselves and get booking photos to prove you are not the person listed.

BEWARE OF ALLOWING OTHERS TO USE YOUR INFORMATION TO OBTAIN AN ID ILLEGALLY AS THIS PERSON MAY GET ARRESTED AND BOOKED UNDER YOUR NAME AND IT IS TIME CONSUMING AND EXPENSIVE TO GO BACK AND PROVE THAT IT WAS NOT YOU!

 

What are the new CORI reforms?

 

A:         The CORI reforms are intended to provide ex-offenders with a better chance of re-integrating themselves into the employment world, while still maintaining public safety.  Individuals may now see what non-law enforcement entities have requested their CORI, to determine if checks were run prior to an interview or job rejection.

A crucial part of the reforms is the “Ban of the Box”, which prevents employers from asking (on an initial written employment application) whether an applicant for a job has been convicted of a criminal offense, unless the employer is prohibited by law from hiring individuals for a particular position because of criminal convictions.

Applicants are also entitled to a new Due Process Right, where if an employer has obtained criminal history information about an applicant, they must provide the applicant with the information prior to asking him/her about it.

Before an employer makes an adverse decision based on an applicant’s CORI, the employer must: notify the applicant of the potential adverse employment action; provide the applicant with a copy of their CORI; provide a copy of the employer’s CORI policy (if applicable); identify the information in the CORI that is the basis for the potential adverse employment action; provide the applicant with the opportunity to dispute the accuracy of the information in the CORI; provide the applicant with a copy of DCJIS information on the process for correcting CORI; and document all steps taken that comply with the above requirements.

Who gets to see my record and how much do they get to see?

 

A:         That depends on who the requesting party is and the degree of access they have to request and receive criminal history information through iCORI.

Employers now have Standard Access to CORI.  This means they can receive information on:

* All pending criminal charges, including cases continued without a finding of      guilt until they are dismissed;

* All misdemeanor convictions for 5 years following the date of disposition or    date of release from incarceration (whichever is later);

* All felony convictions for 10 years following the date of disposition or date of release from incarceration (whichever is later);

* All convictions for murder, voluntary manslaughter, involuntary manslaughter, and sex offenses;

* Information relating to offenses on which the subject was adjudicated as an     adult while younger than 17 years old

Landlords now have Standard Access to CORI (same as employers) in order to screen applicants for housing.  They can screen any adult leaseholder or applicant, but not other adult household members.

Hospitals, Healthcare Staffing Agencies, Healthcare Clinical Programs, Banks, Security System Installers and Amusement Device Operators are some examples of employers who have Required 1 Access to CORI. This means they must comply with regulations in hiring, and have access to:

* All pending criminal charges, including cases continued without a finding of      guilt, until they are dismissed;

* All misdemeanor and felony convictions dating from the subject’s 17th birthday;

* All information relating to those offenses for which the subject was adjudicated           as an adult while younger than 17 years old;

* All convictions for murder, voluntary manslaughter, involuntary manslaughter, and sex offenses

Assisted Living Facilities, Nursing Homes, Programs for Children, Councils on Aging, and Military Recruiters are some examples of employers who have Required 2 Access to CORI.  This means they must comply with regulations in hiring, and have access to:

* Non-conviction information;

* All pending criminal charges, including cases continued without a finding of      guilt, until they are dismissed;

* All misdemeanor convictions and felony convictions dating from the subject’s 17th birthday;

* All information relating to those offenses for which the subject was adjudicated           as an adult while younger than 17 years old;

* All convictions for murder, voluntary manslaughter, involuntary manslaughter   and sex offenses

Only Camps for children are given Required 3 Access to CORI.  This means they must comply with regulations in hiring, and have access to:

* Non-conviction information;

* All pending criminal charges, including cases continued without a finding of      guilt, until they are dismissed;

* All misdemeanor convictions and felony convictions dating from the subject’s 17th birthday;

* All information relating to those offenses for which the subject was adjudicated           as an adult while younger than 17 years old;

* All convictions for murder, voluntary manslaughter, involuntary manslaughter   and sex offenses

The Massachusetts Department of Early Education and Care has Required 4 Access to CORI.  This means they must comply with regulations in hiring, and have access to:

* Non-conviction information;

* All pending criminal charges, including cases continued without a finding of      guilt, until they are dismissed;

* All misdemeanor convictions and felony convictions dating from the subject’s 17th birthday;

* All information relating to those offenses for which the subject was adjudicated           as an adult while younger than 17 years old;

* All convictions for murder, voluntary manslaughter, involuntary manslaughter   and sex offenses;

* Information regarding criminal offenses that have been sealed

The Public has limited access to Open CORI. This means they have access to:

* Misdemeanor convictions within 1 year of conviction or release from incarceration;

* Felony convictions within 2 years of conviction or release from incarceration;

* All felony convictions punishable by five or more years of incarceration within             10 years of conviction or release from incarceration;

* All murder, manslaughter and sex offense convictions, unless sealed

REQUEST FOR PUBLICLY ACCESSIBLE MASSACHUSETTS CORI

 

There is no iCORI registration fee for public use, and individuals can use it to request their own personal CORI. Individuals can register for:

* Open CORI, which provides you with the ability to request some CORI         information of any individual;

* Personal CORI, which provides you with the ability to request your own      CORI; or

* Advocate, Guardian or Representative, which provides you with the ability to request CORI on behalf of someone else

If you don’t understand this and/or need an attorney to help you contact us at Rsweeney@rsweeneylaw.com.  See our website at www.Rsweeneylaw.com.  We can help!