Suffolk University Law Review Thu, 19 Nov 2015 19:44:48 +0000 en-US hourly 1 Donahue Lecture with James Bamford (November 12, 2015) Wed, 18 Nov 2015 15:32:22 +0000 As part of the Donahue Lecture Series, hosted by the Suffolk University Law Review, James Bamford, a New York Times Bestselling Author and columnist for Foreign Policy Magazine, discussed the history and scope of the NSA’s surveillance practices.  In case you missed Mr. Bamford’s lecture, entitled Espionage, Eavesdropping, Edward Snowden and the Foreign Intelligence Surveillance Act, you can watch it in its entirety here.  Suffolk University Law Review extends a thank you to Mr. Bamford for taking the time to interact with the Suffolk University Law School community.

The 2015-2016 Donahue Lecture Series will continue on March 3, 2016, when the President of the American Civil Liberties Union (ACLU), Susan N. Herman, will come to Suffolk University Law School to discuss civil liberties in the context of the War on Terror.  Ms. Herman has been the President of the ACLU since 2008 and has appeared on NPR, PBS, CSPAN, NBC, and MSNBC.  Her most recent book is Taking Liberties: The War on Terror and the Erosion of American Democracy, published in 2011.  We hope to see you there!

Only two weeks after Ms. Herman’s lecture, the 2015-2016 Donahue Lecture Series will come to a close when Aloke Chakravarty, a federal prosecutor involved in the investigation and prosecution in the Boston Marathon bombing case.  Stay tuned for more information.




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Week of November 16, 2015 Wed, 18 Nov 2015 14:41:10 +0000
  • Substantial Evidence Against Defendant Outweighs Prosecutor’s Improprieties at Trial

    Trial Advocacy
    Commonwealth v. Cadet, No. SJC-10505 (Mass. Nov. 18, 2015)
    Opinion digest provided by John P. Wilton

    The Supreme Judicial Court examined whether several prosecutorial improprieties created a substantial likelihood of a miscarriage of justice in the defendant’s conviction of first-degree murder.  The SJC reprimanded several of the prosecutor’s tactics, including:  referring to the defendant’s deceased girlfriend as the “victim” throughout trial; repeatedly inferring the defendant lacked masculinity for his inability to defend himself from his girlfriend without killing her; and characterizing the defendant as a “monster.”  Observing the overwhelming evidence against the defendant, the SJC concluded that these transgressions did not give rise to a substantial likelihood of a miscarriage of justice because it was unlikely the prosecutor’s conduct influenced the verdict.  Therefore, the errors at trial did not did not necessitate a do over.

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    Week of November 9, 2015 Wed, 18 Nov 2015 14:38:42 +0000
  • No Mistrial After Jury’s Inadvertent Consideration of Evidence

    Criminal Law
    Commonwealth v. Blanchard, No. 14-P-645 (Mass. App. Ct. Nov. 12, 2015)
    Opinion digest provided by Elma Delic

    The Massachusetts Appeals Court addressed whether the Superior Court erred in denying a motion for mistrial after the jury had inadvertently reviewed a binder containing evidence that had not been admitted during the trial.  After the trial judge conducted a voir dire examination of the jury, during which each juror confirmed he or she could disregard the contents of the binder for the deliberation, the trial judge impounded the initial jury slips and issued new ones.  Reasoning the trial judge had sufficiently ascertained whether the jury could reach a verdict based on only the admissible evidence in making its findings, the Court upheld denial of the defendant’s motion for mistrial.



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    Erasing Gender Privilege in Nonconsensual Procreation: An Argument for an Equitable Change to the Law Regarding the Unauthorized Use of Sperm Mon, 09 Nov 2015 19:02:48 +0000 Sperm stealing—also known as the unauthorized use of sperm—comes in several forms, which fall in three categories: sperm stashing, nonconsensual sexual intercourse, and the improper use of artificial reproductive technology (ART).  Sperm stashing usually occurs through a woman saving sperm from oral sexual relations or a used condom and using such sperm to inseminate herself.  Sperm stealing through nonconsensual sexual intercourse includes rape and statutory rape that results in pregnancy.  Improper use of ART includes a woman obtaining and becoming inseminated with a man’s sperm donation or implanted with fertilized pre-embryos created with his sperm without his consent.  A handful of cases dealing with sperm stealing have made it on to court dockets.  Most have been dismissed, others given the chance to make it to trial, and a clear minority have resulted in favorable verdicts for the man whose sperm was stolen.  Cases that have achieved verdicts, however, are restricted to improper use of ART, creating a class system among the categories of sperm stealing.  Typically, courts favor the policy of child welfare, ensuring the child has the support of two parents and making male rights to reproductive choice insignificant.  In Massachusetts—a state that allowed recovery for a man whose fertilized pre-embryo was used by his estranged wife—a new set of child support guidelines took effect on August 1, 2013, greatly enforcing and emphasizing the policy to favor the welfare of the child at all costs.  It prompts the inquiry of whether these policies may affect this preexisting case law.

    Read the full Note here.

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    Week of November 2, 2015 Thu, 05 Nov 2015 22:33:11 +0000
  • BMC Judge Erred By Dismissing Complaint Based on Interest of Public Justice

    Criminal Law
    Commonwealth v. Joseph Everett, No. 14-P-1761 (Mass. App. Ct. Nov. 3, 2015)
    Opinion digest provided by B. Tyler Blair

    The Massachusetts Appeals Court addressed whether the Boston Municipal Court (BMC) has the authority to unilaterally dismiss a legally valid criminal complaint if doing so would be in the “interest[] of public justice.”  A BMC judge dismissed a complaint against a defendant charged with operating a motor vehicle with a suspended license.  While the Commonwealth’s complaint was supported by probable cause and met all legal elements of a valid complaint, the BMC judge explained that persecuting the defendant was unnecessary because the defendant was already following all required prescriptions to reinstate his license, and that the defendant needed the license for his employment.  The Massachusetts Appeals Court held, however, that the BMC may not unilaterally dismiss a complaint by asserting an interest in public justice, but rather must comply with M. G. L. c. 278, s. 18 by first obtaining a guilty plea or a request for a continuance without a finding.

  • Inadvertent Presentation of Barred Evidence Not Harmful

    U.S. v. Brown, No. 14-1110 (1st Cir. Nov. 4, 2015)
    Opinion digest provided by Brandon R. Dillman

    The United States Court of Appeals for the First Circuit considered whether the inadvertent admission of evidence, which had already been proscribed by defendant’s motion in limine, warranted a new trial.  The Court reasoned that the defendant shared responsibility for the evidence being offered and admitted, and it determined there was enough other evidence to support the jury’s verdict.  Thus, because the defendant was not harmed by the inadvertent presentation of the evidence, the Court affirmed the lower court’s decision to deny the motion for a new trial.

  • SJC Creates Guide for Involuntary Civil Commitment Statute

    Involuntary Civil Commitment
    In the Matter of G.P., SJC-11911 (Mass. Nov. 5, 2015)
    Opinion digest provided by Brandon R. Dillman

    The Supreme Judicial Court interpreted M. G. L. c. 123, s. 35, which authorizes the involuntary civil commitment of persons due to alcoholism or substance abuse.  While the claim before the Court was moot, the Court nevertheless took the opportunity to guide future litigants on matters associated with the statute, including the standard of proof, rules of evidence, and appellate procedure.


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    Article Published by Suffolk University Law Review Cited in SCOTUS Briefs Thu, 05 Nov 2015 14:31:22 +0000


    An article published by Suffolk University Law Review was cited twenty-four times in various briefs and court documents filed in the United States Supreme Court in the matter of Spokeo, Inc. v. Robins.  The article, Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 885 (1983), is a revised version of Justice Scalia’s remarks at the Ninth Donahue Lecture at Suffolk University Law School and can be found by clicking the link below.

    Read Justice Scalia’s article here.

    While sitting for the United States Court of Appeals for the District of Columbia, Justice Scalia took the time to speak with the Suffolk University Law School community about the relationship between the doctrine of standing and the separation of powers.  Now, thanks to the work of our alumni and faculty, Justice Scalia’s lecture has been considered by parties in the United States Supreme Court.  Justice Scalia’s lecture, held in March of 1983, was part of the Donahue Lecture Series, an annual series of lectures hosted by Suffolk University Law Review.  This year’s lecture series begins on November 12, 2015, when New York Times Bestselling Author, James Bamford, will join Suffolk University Law Review for a discussion on Espionage, Eavesdropping, Edward Snowden and the Foreign Intelligence Surveillance Act.

    We are thrilled to see the work of our alumni pay dividends for Suffolk University Law Review over thirty years later.  And we look forward to having this year’s lectures and publications be considered by future academics and advocates.

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    Disability Law—Ninth Circuit Holds Public Schools’ Compliance with IDEA Does Not Automatically Establish Compliance with ADA Wed, 28 Oct 2015 21:12:25 +0000 Case Comment

    K.M. ex rel. Bright v. Tustin Unified School District, 725 F.3d 1088 (9th Cir. 2013), cert. denied, 134 S. Ct. 1493, cert. denied sub nom. Poway Unified Sch. Dist. v. D.H. ex rel. K.H., 134 S. Ct. 1494 (2014)

    The rights of deaf and hard-of-hearing students in public schools derive primarily from two federal laws: the Individuals with Disabilities Education Act (IDEA) and Title II of the Americans with Disabilities Act (Title II of the ADA).  The IDEA requires public school districts to provide disabled children, including those who are deaf or hard of hearing, with a free appropriate public education (FAPE).  Under IDEA, a FAPE necessitates the development and implementation of an individualized education plan (IEP) for each disabled child addressing his or her unique needs.  Meanwhile, Title II of the ADA and its effective communications regulations prohibit public schools from discriminating against deaf and hard-of-hearing children and require schools to ensure that these students have access to effective communications.  In K.M. ex rel. Bright v. Tustin Unified School District, the Ninth Circuit considered the interplay of these two laws and held that a public school’s provision of a FAPE to a hearing-disabled student (as required under IDEA) does not automatically mean that the school has complied with Title II of the ADA.

    Read the full Case Comment here.

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    Week of October 26, 2015 Wed, 28 Oct 2015 14:05:30 +0000

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    Naturally Misleading: FDA’s Unwillingness To Define “Natural” and the Quest for GMO Transparency Through State Mandatory Labeling Initiatives Tue, 27 Oct 2015 21:40:32 +0000 Consumers across the country cannot help but notice that the natural food industry has caught onto their preferences for “all natural” food.  Natural food has developed into a thirty-seven billion dollar per year industry in response to consumers’ attraction to “all natural” products.  A robust segment of the “all natural” trend are the anti-genetically modified organisms supporters.  Genetically modified organisms (GMOs) are plants or animals that are created by genetic engineering (GE)—combining deoxyribonucleic acid (DNA) from different species to create combinations that cannot occur in nature.  Anti-GMO advocates believe consumers have a right to know what is in the food products they are purchasing, including whether those products contain GMOs.

    Read the full Note here.

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    Week of October 19, 2015 Thu, 22 Oct 2015 16:47:20 +0000
  • Insufficient Evidence Sufficient for Erroneous Conviction Claim

    Erroneous Conviction
    Santana v. Commonwealth, No. 14-P-923 (Mass. App. Ct. Oct. 19, 2015)

    The Massachusetts Appeals Court addressed whether a former criminal defendant cleared of charges due to insufficient evidence could bring a claim against the Commonwealth for erroneous conviction under M. G. L. c. 258D.  The Commonwealth’s erroneous conviction statute requires that the party bringing the claim to have been granted relief in a prior criminal proceeding “on grounds which tend to establish the innocence of the individual.”  The Court held that, based on the circumstances before it, acquittal due to insufficient evidence in the underlying criminal proceeding tended to show actual innocence and that it was enough to permit a claim for erroneous conviction.

  • Equitable Subrogation Claim Permitted Despite Availability of Legal Remedy

    Equitable Subrogation
    Bank of America v. Diamond Financial, LLC, No. 14-P-1315 (Mass. App. Ct. Oct. 20, 2015)

    The Massachusetts Appeals Court considered whether a bank was entitled to equitable subrogation of a mortgage despite the availability of a legal remedy, specifically, a title insurance claim.  The Court recognized that Massachusetts courts can exercise equitable jurisdiction despite the availability of legal remedies, but only when those remedies are inadequate and inappropriate.  The Court held that the remedy at law available to the bank was inadequate and inappropriate to resolve fairly the issue between the parties and permitted the bank to pursue its equitable subrogation claim.

  • Best Interests of Refugee Child Lead to Exercise of Child Custody Jurisdiction

    Child Custody Jurisdiction
    Custody of Victoria, SJC-11826 (Mass. Oct. 21, 2015)

    Generally, Massachusetts courts possess child custody jurisdiction pursuant to M. G. L. c. 209B when the Commonwealth is the child’s home state or when no other state qualifies as the child’s home state and when the best interests of the child indicate jurisdiction may be appropriate.  For a state to qualify as a child’s home state, the child must have been in the care of a parent or person acting as a parent in that state for more than six months.  Here, the Massachusetts Supreme Judicial Court addressed whether the Massachusetts Probate and Family Court had jurisdiction over a refugee child who resided out-of-state for more than six months under the care of a federal agency.  The Court held that because the federal agency did not qualify as a parent pursuant to Chapter 209B, the child lacked a home state.  Furthermore, the best interests of the child indicated that the court could exercise jurisdiction.

  • GPS Monitoring Not Required After Case Continuance

    Sex Offender GPS Monitoring
    Commonwealth v. Doe, SJC-11861 (Mass. Oct. 22, 2015)

    The Massachusetts Supreme Judicial Court considered whether a person who entered a guilty plea or admitted to sufficient facts sufficient to prove to a sex offense, but whose case had been continued without a finding, was required to wear a GPS device pursuant to M. G. L. c. 265, § 47.  Generally, that statute requires a person placed on probation for a sex offense to wear a GPS device for the probation’s duration.  The Court held that the Legislature intended § 47 to apply only to those defendants placed on probation after a conviction of a sex offense, and that a judge is not required to enforce the statute’s protocols on those defendants whose cases are continued without a finding.


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