Appeals

WORCESTER, MA

Did you get a fair trial? Was crucial evidence not presented in court? Attorney Michael Gerace is experienced in both criminal and civil appeals. He will consult with you, honestly assess your case, and provide you with options. Appeals require meticulous research and writing skills which Attorney Gerace has developed through his appellate practice and in his previous career, teaching in universities. He will thoroughly examine your transcripts and the entire record of the case, seeking any and all possible errors or issues of legal merit in the case. He will also provide you with a thorough and candid assessment of what you have in your case.

Attorney Gerace has handled numerous cases for post-conviction relief or for relief from a civil judgement, either on appeal before the Massachusetts Appeals Court or in motions for new trial before different trial courts in Massachusetts. He has successfully argued such cases before these courts.

How Do Appeals Work?

What is a Motion for a New Trial?

Most recently, Attorney Gerace has argued the following:

A.S. v. J.G., Mass Appeals Court

JUDGMENT OF THE TRIAL COURT AFFIRMED/UPHELD, 10/6/2017

This was a civil appeal from the Middlesex County Probate and Family Court relating to a house in a trust in Middlesex County. The trial was about the plaintiffs (A.S., my clients) trying to get a certain deed and trust document invalidated in court relating to their home. They won at trial and the judge ruled in their favor and granted their requests for relief. The plaintiffs were a very elderly couple (the husband had died by the time of trial) and the defendants were five people in total–one of the plaintiff’s daughters (the main defense litigant), her husband, two of her own daughters and a family friend. The daughter appealed her loss at trial (the other defendants did not). I represented the plaintiffs on appeal, who were the appellees.

The basic issues were two claims. One was a claim that the main defendant (the daughter) had forged a deed in or about 2010 and recorded it in the Registry of Deeds, where the deed purported to convey her parents’ interest in the property out to herself, two daughters and the family friend as trustees to a trust. The second claim was that the trust document was also fraudulent. The trial court agreed and the appeals court upheld its judgment.

One weird fact in the case was that there was a previous deed where the parents conveyed the property from themselves to both themselves and to the daughter’s husband. This deed was drafted, signed, notarized and recorded in the Registry of Deeds in 1996. This put the daughter’s husband on deed for free. Lots of trouble and heartache for the parents resulted from this and related matters over the years, quite a lot of it financial in nature (use your imagination).

Even weirder facts followed. The deed deemed fraudulent was recorded by the daughter in the Registry of Deeds in 2010 along with the trust document. But the daughter claimed that this deed itself was actually drafted by herself way back in 1996 along with the previous deed. She claimed that she drafted both deeds at the same time in 1996 and had both of them signed and notarized by all relevant parties in front of the same notary public at the same exact time. But here, while the first deed put her husband on deed and kept her parents on deed, the second deed claimed to convey her parents’ and husband’s interest out of the property and convey the property to her, two of her daughters and the family friend all as trustees of the trust. Why would her husband agree to acquire a property interest in the home in one deed and, in the span of minutes, convey that interest out in a second deed? The husband could not answer this and related questions very well at trial.

So, the daughter claimed that 1) the first deed conveyed the property from her parents to her parents and her husband (no one contested this), 2) within minutes in the same meeting with the notary, her parents and her husband conveyed their interests out of the property to the daughter and the other trustees of the trust, 3) though she recorded the first deed back in 1996, she privately held the second deed for about 14 years until she decided to record it with the Registry of Deeds in 2010, 4) though she claimed to have drafted the trust document also back in 1996 and claimed she had all trustees sign it back then, she also kept the trust document in her private custody for about 14 years until she recorded it along with the fraudulent deed on the same day, and 5) this second deed and the trust document, though the daughter claimed were genuine documents going back to 1996, suddenly appeared just two months or so after her parents filed in court over the house because she seized their house keys and kicked them out (their house!).

There were other issues, just as odd, that were not litigated.

Moral of the story? I often say that, while blood may be thicker than water, it’s not thicker than money! Money is the thickest most viscous liquid of all. And it is a liquid–which is why we refer to it as liquidity.

Commonwealth v. T, Mass Appeals Court

ONE OF TWO CONVICTIONS VACATED, 3/3/2017

This was a conviction for Home Invasion (as a Joint Venturer) under G.L. § 18C and for Accessory Before the Fact under G. L. c. 274, § 2. The charging language and jury instructions were all older law that did not take into account important changes the law on Aiding and Abetting (here joint venture and accessory before the fact are both the same crime no, as aiding and abetting).

While I believed and still do that the evidence at trial was insufficient to find the Defendant guilty beyond a reasonable doubt, and I raised this argument for each count, the Appeals Court disagreed. They did agree with my third issue, however, that the two convictions were duplicative under the new law on aiding and abetting. Duplicative convictions are when two separate convictions are for the same crime, which may also run afoul of our law against double jeopardy. The implication is that one of the convictions must be vacated, while the other will stand. So the Appeals Court vacated the accessory before the fact conviction while upholding the other.

The Supreme Judicial Court had earlier decided that both joint venture liability and accessory before the fact are both different routes to the same crime, such that one should not be convicted of both for the same crime. It would be like being convicted for to counts of murder when there is only one murder victim because the jury believed both of the prosecutor’s theories of murder in the case–maybe extreme atrocity or cruelty as one theory and deliberately premeditated malice aforethought for the other. Or, it is like being convicted of unauthorized use of a motor vehicle and larceny of a motor vehicle for the same act of driving away with someone else’s car. The case in question is Marshall v. Commonwealth, 463 Mass. 529 (2012)

Commonwealth v. V2, Mass Appeals Court

ALL 3 CONVICTIONS VACATED, 1/28/2016

This was a gun case that also came with an assault and battery count. The Defendant was charged with carrying a firearm (G.L. c. 269, s. 10(a)), carrying a loaded firearm (G.L. c. 269, § 10(n)) and assault and battery (G.L. c. 265, § 13A). The Appeals Court reversed all three counts.

The basic reason for the reversal were improper closing arguments of the prosecutor in conjunction with similarly prejudicial prosecutor errors at trial. The main issues involved repeated attacks on the Defendant’s character, when his character was not an issue at trial. The attacks made him out to be a general criminal, a womanizer, a brute and a bum, though none of that was reasonable, fair or even remotely related to his charges.

Among other things, the prosecutor argued during closing to the jury that her main witnesses were lying on the stand (the prosecutor’s own witnesses) and the reason they were lying was that the Defendant was here in court right in front of them and they ere scared, and his family was in court too. This was terrible of the prosecutor. It invited the jury to think the prosecutor’s witnesses were lying because the defendant may have intimidated them, when there was no such information to suggest that. If the jury believed that, they would see the Defendant as being a serious criminal.

It also goes against our usual way of thinking, relating to confrontation rights and the 6th Amendment to the US Constitution. In particular, when a witness comes to court, takes an oath or affirmation, and looks the Defendant in the eye and testifies against him, then we like to think the person is more likely to be telling the truth. Whether this is correct reasoning or not, it is our traditional way of thinking about confrontation rights in court. The prosecutor was suggesting the opposite to the jury–that the witnesses were lying because the Defendant was there and they were afraid of him.

The prosecutor also elicited long testimony from a detective about what procedures and protocols he undergoes to get a search warrant, once he does an investigation and determines the “true facts,” though there was no search warrant in this case and that particular detective played a very minor role in the investigation of the Defendant. This is error that may reverse a conviction (it didn’t do so here, but the Appeals Court mentioned it in case there was to be a retrial). This last item is not all that common, but is a decent issue to raise.

Commonwealth v. V, Mass Appeals Court

2 OF 5 CONVICTIONS VACATED, 6/8/2015

This was a gun case, where the Defendant was charged with possessing a Russian SKS Assault Rifle, which came with numerous additional charges. While convicted at trial of 5 out of the 6 charges he faced in Suffolk County Superior Court in Boston, Attorney Gerace had two of these overturned by the Appeals Court. The 2 overturned convictions were Receiving a Weapon with a Defaced Serial Number or Identification Number (a charge under G.L. c. 269, s. 11C), and Carrying a Firearm Without a License (a charge under G.L. c. 269, s. 10(a)).

The conviction for receiving a weapon with a defaced serial number or identification number was vacated because the number alleged by the prosecution to have been defaced on the weapon was the US importer number. The US importer number is neither a “serial number” nor an “identification number” in Massachusetts law. The very definition of these numbers is contained in G.L. c. 269, s. 11A. Looking at those definitions, it is clear that it is not even a crime to receive a weapon with a defaced US importer number in Massachusetts. It is a federal crime, given that the US importer number is mentioned as a protected number in federal criminal law (see 18 USC 922k), but the US importer number is not a protected number in Massachusetts. The carrying charge (under G.L. c. 269, s. 10(a)) was vacated because it was duplicative with another charge (G.L. c. 269, s. 10(m)).

Commonwealth v. P, Worcester Superior Court

MOTION FOR NEW TRIAL ALLOWED ON A 2002 CONVICTION, 8/25/2015

This was a recently decided Motion for New Trial, where the Defendant had pleaded guilty in 2002 to an indecent assault and battery of a person over 14, under G.L. c. 265, § 13H in the Worcester Superior Court (indicted for rape in 2001). There were 2 key issues decided on by the motion judge. One was that the facts alleged by the Commonwealth were simply insufficient to constitute the elements of the offense charged. In particular, there were no facts alleged that showed that the Defendant had actually engaged in physical contact with the alleged victim (i.e, a battery) and, from there, that there were no facts shown that the alleged “contact” was indecent. There have been a handful of cases that have dealt with this particular form of legal argument in a post-conviction context. The most prominent cases are Commonwealth v. Loring, 463 Mass. 1012 (2012); Commonwealth v. DelVerde, 398 Mass. 288 (1986); and, Commonwealth v. Hart, 467 Mass. 322, 325 (2014). This case is in line with these cases. Second, the motion judge agreed that the guilty plea was not Intelligent, a legal term that requires a showing on the record that the Defendant is informed of and aware of the nature of the charges against him. There was no such showing in this case and the judge agreed.

Commonwealth v. BH, Cambridge District Court

This was an assault and battery under G.L. c. 265, § 13A, which had allegedly occurred on the subway from Cambridge to Quincy. The matter was arraigned in the Cambridge District Court. After the defendant was convicted, I took the case as a post-conviction matter. Once I completed my investigation of the case, I realized that the defendant was not competent to stand trial for various personal reasons. I did a motion for new trial in the Cambridge District Court on grounds that the client was not competent to stand trial, had an expert testify to the court about the defendant’s condition, and the motion was allowed. His conviction was vacated.

Commonwealth v. RP, Dudley District Court

This was a failure to register as a sex offender case in the Dudley District Court, where the defendant pleaded guilty to the failure, took a jail term and was required to be on lifetime community parole ever after. I took the case as a post-conviction matter, discovered that the underlying conviction he had (why he was registered to begin with) was not within the enumerated list of offenses in the statute that allowed lifetime community parole (G.L. c. 6, § 178H(a)(1)). I filed a motion to correct or vacate an illegal sentence under Massachusetts Rules of Criminal Procedure 30(a) and got the lifetime community parole part of the sentence vacated.