👨‍⚖️ Mass. Judge Bans Breathalyzer Use for 60 Days, Orders State to Address Malfunctions

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This month a district court judge in Middlesex County allowed a criminal defense attorney’s motion to

(1) suspend the use of breath test results in criminal matters pending throughout the Commonwealth,

(2) reopen the hearing on the reliability of the Draeger Alcotest 9510,

(3) order all breath tests from Alcotest 9510 breathalyzer machines that were last calibrated on or after April 19, 2019 excluded from criminal prosecutions.

The judge’s order is good for 60 days.  During that time the state must address a number of issues that have been raised concerning the efficacy of its breathalyzers.

According to the court,

These issues clearly require prompt resolution.  Breathalyzer results undeniably are among the most incriminating and powerful pieces of evidence in prosecutions involving either alcohol impairment or “per se” blood alcohol percentage as an element.  Their improper inclusion in criminal cases not only unfairly impacts individual defendants, but also undermines public confidence in the criminal justice system.

The defendants’ attorney was Joseph Bernard whose office is in Springfield.  He spoke about the case with Mass Lawyers Weekly saying

This machine has been riddled with issues, and the taxpayers, the citizens, along with the criminal justice system all deserve better.  

To read the judge’s order, click the document below:

 DESE Leaves It to School Districts to Enforce Mask Mandate

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DESE has mandated masks for all schools across the state. But how the mandate should be enforced is up to the individual school districts. According to DESE, “Whether and when a student should be disciplined for failure to wear a mask is a local decision.” Perhaps it’s time to pressure our local school boards to stop any and all disciplinary action against students who refuse to wear a mask. What are your thoughts?

👨‍🔬 Harvard Professor Accused of Lying to FBI About Ties to China Seeks Legal Defense Fees from University

This week the Massachusetts Supreme Judicial Court dismissed an appeal made by prominent Harvard chemistry professor Charles M. Lieber in his lawsuit against the university for payment of criminal defense fees.

The Department of Justice alleges that Professor Lieber made a false statement to investigators from the Department of Defense concerning his relationship with China’s Wuhan University of Technology (“WUT”) and the country’s “Chinese Talent Program.”  The DOJ also alleges that Lieber caused Harvard to make false statements to the National Institutes of Health (NIH).

According to the FBI’s affidavit in support of its criminal complaint against Lieber,

The “Chinese Talent Programs” refer collectively to various plans designed by the Chinese Government to attract, recruit, and cultivate high-level scientific talent in furtherance of China’s scientific development, economic prosperity, and national security…The Chinese Talent programs have rewarded individuals for stealing proprietary information and violating expert controls.

The same affidavit states that

Based on the evidence gathered to date [January 2020], LIEBER was a “Strategic Scientist” at WUT and a contractual participant in China’s Thousand Talents Plan for significant periods between at least 2012 and 2017. The terms of LIEBER’s Thousand Talents contract called for LIEBER to be paid up to $50,000 per month in salary and approximately $150,000 per year for living and personal expenses by WUT. LIEBER was also awarded more than $1.5 million by WUT and the Chinese government to establish a research lab and conduct research at WUT.

It’s alleged that Lieber told officials “he was never asked to participate in the program” despite evidence to the contrary.  Additionally, when NIH questioned Havard about Lieber’s involvement with WUT and the Chinese Talent Program, FBI agents believe “that LIEBER caused Harvard to make materially false and misleading statements.”  Based on the allegations, Lieber has been accused of violating 18 U.S.C. § 1001(a)(2).

Lieber sought payment for his legal defense through an indemnification policy included in his contract with Harvard.  The university’s chief administrative office denied payments, however, due to certain exceptions in Lieber’s contract.

In response, Lieber filed a civil lawsuit against the university in Middlesex Superior Court.  The superior court judge denied Lieber’s motion for a preliminary injunction ordering Harvard to advance the funds at issue.  Appeals were made to both the Appeals Court and the Supreme Judicial Court.  On November 15, 2021 the SJC issued a decision dismissing the petition made to them.  According to the court’s ruling,

Lieber pursued two separate avenues of relief, perhaps as a precautionary measure, but where the issues raised…are already before the full court [i.e., the Appeals Court] on direct review, there is no need for us to consider Lieber’s appeal from the denial of that petition.

😷 School Mask Lawsuit Update

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Last month we filed a motion for a preliminary injunction asking the court to temporarily stop the statewide school mask mandate until the case could be heard and decided on its merits. Yesterday the court denied the motion. This means that the mandate can stay in place while the case is pending. I’ll continue to keep you updated as things progress.

A copy of the court’s order is below:

🛠 Legal Tools for Dealing with Local Governments

Over the past few months, hundreds of Massachusetts residents have contacted me with concerns about COVID mandates and restrictions imposed by local officials: health boards, school committees, town councils, etc.  The people who contact me want to know what they can do to lawfully oppose local restrictions and get life back to normal for themselves and their children.

Here are some of the best legal tools a concerned citizen can use when dealing with his local officials.

Open Meeting Laws

Key Points:

Notice:

  • All local government bodies must comply with Massachusetts’ Open Meeting Laws.
  • Notice of all meetings must be posted at least 48 hours in advance.
  • Typically, notice is posted on the town’s website but it can also be published in a local newspaper or a hardcopy of the notice may be posted outside of town hall.
  • The notice must list all topics that will be voted on at the meeting.
  • If your local officials fail to comply with the Open Meeting Laws, you can file a complaint against the town with the Massachusetts Attorney General.
  • The complaint must be submitted on the form provided by the Attorney General.  For a copy of the form, see below.

Public Comment:

  • The Open Meeting Laws encourage, but do not require, public comment sessions at each meeting.
  • Whether public comments will be heard is determined by the board chairman.
  • Most chairmen will allow residents to speak for only three meetings.
  • Board members will not answer questions during a public comment session.
  • Although Massachusetts law does not require local government boards to hear public comments, some town charters or bylaws do require time for comments.

Sources:

Public Records Request

Key Points:

  • All local officials must provide public records to citizens upon request.
  • The definition of a “public record” is very broad and includes almost all paperwork and correspondence (letters, fax, emails, text messages, etc.) in which governmental business is mentioned.
  • Requests must be made to the town’s “Records Access Officer” (RAO) who is often also the town clerk.
  • There is no strict requirement for how a public records request must be made.  The request can be made via email, fax, or letter.
  • The RAO has ten days to respond to the request and provide the documents being sought.
  • The state discourages towns from collecting a fee for providing public documents.  But the town may still bill a citizen for the time and expense necessary to comply with a records request.  If the town intends to charge you for a records request, the RAO should first provide you with an estimate of the expense.

Sources:

Declaratory Judgment

Key Points:

  • If your local government violates the law (municipal, state, or federal), you can file a complaint in Superior Court seeking a declaratory judgment.
  • According to M.G.L. c. 231A, § 2, a complaint for declaratory judgment “may be used in the superior court to enjoin and to obtain a determination of the legality of the administrative practices and procedures of any municipal, county or state agency or official which practices or procedures are alleged to be in violation of the Constitution of the United States or of the constitution or laws of the commonwealth, or are in violation of rules or regulations promulgated under the authority of such laws, which violation has been consistently repeated.”
  • Often the complaint is filed along with a motion for preliminary injunction asking the Superior Court to put an immediate stop to whatever local action is at issue until the matter may be heard on its merits.
  • You will likely need an attorney to prepare and file such a complaint.

Sources:

Local Charters and Bylaws

Key Points:

  • Each city and town has its own set of local laws—bylaws, charters, or both.
  • Before engaging your local officials, you should take the time to read and understand the pertinent sections of your town’s laws.
  • Most bylaws and charters provide mechanisms for residents to influence or change local policies.  Mechanisms may include the voters’ right to present petitions to their local officials for consideration, the right to recall elected officials, and the ability to add referendums to their town election ballots.

🤔 What Happens If School Committees Disregard DESE’s Mask Mandate?

Late last week, I got an email from someone who said that his town’s school committee was weighing the option of disregarding DESE’s statewide mask mandate. He asked what consequences the school committee would face by taking such action. Here’s what I told him.

😷 Seeking Support From E.L. Business Owners

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Next month the East Longmeadow Town Council will meet and vote on a petition to end the local mask mandate. 

I want the Councilors to know that local businesses support the petition.  If you know a local business owner who supports ending the town’s mask mandate, please ask him or her to sign my letter to the Council.

           

I don’t need the original signature. A photocopied image of the signed document will suffice. It can be emailed to me at justin@jrmccarthy.com or faxed to 413-647-0018.

Alternatively, business owners can simply copy and paste the contents of the letter (written out below) and email it to me using the company’s email address.

Town Council: I am an East Longmeadow business owner and I support the petition to end the town’s mask mandate.  Since the mask mandate began, my business has experienced some or all of the following negative effects: (1) I have lost customers and income. (2) I am constantly burdened by the need to enforce mask compliance on my customers and staff. (3) Despite my best efforts to enforce the mask mandate, I constantly worry about being reported to or fined by the health inspector for non-compliance.  For these reasons, I respectfully ask the Town Council to end the mask mandate.

Signing the letter does not obligate the business owner to appear at the meeting or take any other action.  I will submit all letters to the Councilors in a private manner and I will do nothing to publicize the names of the business owners who sign.

Feel free to contact me directly with questions or concerns.