Articles Posted in Assault and Battery

The Boston Criminal Lawyer Blog has begun to more fully discuss the parameters of Massachusetts assault and battery. What will surprise you is how slight touching can result in such a criminal charge. But first, let’s look at a gentleman from Lawrence who is finding out that, sometimes a simple physical expression of his temper is more than simple assault and battery…even if nobody is killed.

The incident took place on Sunday. The police say that 23-year-old Hermenes Rosa (hereinafter, the “Defendant”) encountered he who would become the “Complainant” as the Complainant was leaving a Tewksbury Dunkin Donuts. The Defendant is said to have driven close behind the Complainant’s car, ever nearing the bumper. Then, apparently, the Defendant started yelling obscenities at him.

Following in the display of misguided logic, the Complainant then apparently pulled into a parking lot and exited his car to approach the Defendant.

A little foreshadowing here…it turns out that the parking lot belonged to a state hospital.

The Complainant got out of the vehicle and allegedly confronted the Defendant, who allegedly responded by revving up his engine and driving at him. He then drove another short distance…with the Complainant on the hood.

Finally, the Complainant rolled off the hood and landed on his feet. The Defendant is said to have driven at him again, but then drove off laughing.

Consistent with the good sense he had demonstrated already, the Defendant returned to the scene on foot.

Where he was arrested.
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You may be looking at today’s news and wondering if we have now returned to the
the 1960’s – 1970’s with regard to the recent activities of a group called
“Occupy Boston”…and several such protests across the country. The latest
activity of the group has led over 100 of the group to be arrested. The
familiar accusations of police brutality and similar assaults are flying.

Boston Mayor Thomas M. Menino today went on record to defend the arrests,
explaining that, while he agrees with them on the issues they are protesting,
the cannot be allowed to “tie up the city.”

“I understand they have freedom of speech and freedom of expression, but we have
a city to manage,” he said in a telephone interview. “I’m open to suggestions,
but civil disobedience will not be tolerated.”

The early morning arrests of the protesters, who gathered downtown in
recent days to criticize the financial industry and social inequality, began at
about 1:20 a.m..

He said protesters had crossed two lines, first, by marching on the North
Washington Street Bridge and threatening to tie up traffic and, second, by
expanding their campground to a newly renovated area of the Greenway that the
city had asked them to stay off.

Occupy Boston said today in a statement that police had “brutally attacked”
protesters. In turn, Boston Police have brought their own claims of assault
against them.

“Today’s reprehensible attack by the Boston Police Department represents a sad
and disturbing shift away from dialogue and towards violent repression,” the
group said on its website.

Masny-Latos, who was on scene as a legal observer, said no protesters fought
with police. She said police could have employed a technique routinely used at
other protests – police approach a protester, tell them they are violating the
law, and the protester then submits to being taken into custody – and still
achieved their goal of clearing the area.

“They really attacked,” Masny-Latos said of the police. “They used force that
was completely unnecessary. … It was just brutal. I have no idea why they
arrested us with u such force.” Masny-Latos herself was arrested by the police
despite the fact that she3 was wearing clothing indicating that she was simply a
legal observer.

To her shock, Masny-Latos herself was among those arrested. She said Boston
police usually respect the legal observers the guild routinely dispatches to
public protests.

“Four officers grabbed me and dragged me,” she said. “I begged them to stop,
[told them that that] they were hurting me. I have no idea why they arrested us
with such force.”

Police had earlier warned the approximately 1,000 protesters to leave the
Greenway area, where they had settled hours before, and relocate to either Dewey
Square or a small, adjacent strip of the Greenway.
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Here is where we left off on yesterday’s (once again daily) Boston Criminal Lawyer Blog…

You are facing going to trial for charges of Roxbury Cocaine trafficking and for Assault and Battery in a domestic violence case.

You have reviewed in your mind the various evidence that could potentially be produced against you although you are, for the most part, innocent of the charges (the exception being possession of the cocaine for personal use…a much lesser charge than the Massachusetts felony charges facing you).

You have always believed that evidentiary rules which prevent the government from producing evidence against the accused were merely tools of sneaky defense lawyers used to free guilty clients. You do not believe yourself guilty. You are now ready to reconsider.

Realizing that you could go to jail on either one of these cases, you have asked your attorney what your chances at winning are. His annoying answer was that it
“depends”.

Hey, thanks a lot..

Attorney Sam’s Take On Getting Beyond “It Depends”

Well, I do not know who your attorney, nor his experience level. However, This experienced Boston criminal lawyer will review the evidence in this case and apply the associated rules.
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You have seen it in the movies. Sometimes, at the end of the film, you walked out angry.

Sometimes feeling exhilarated.

It is the tale of the vigilante. The vigilante who goes after the unmistakable “bad guy” and, maybe even, rescues the innocent victim.

Usually, how you feel depends on what happens to the vigilante.

Well, you may want to ask Frank Herbert (hereinafter, the “Defendant”), the 57-year-old wheelchair-bound grandfather about it. He allegedly attacked an accused pedophile with a baseball bat. The alleged pedophile was the Defendant’s girl-friend’s son-in-law. The Defendant says he was protecting a young girl.

Child protection advocates are hailing the Defendant as a hero. The Commonwealth, however, is charging him with the Massachusetts felony of Assault and Battery with a Dangerous Weapon.

He faces 10 years in state prison.

It happened on February 22nd on Martha’s Vinyard. The Defendant allegedly struck his alleged target, Joshua Hardy, on the arm with the bat and kept the apparently 230-pound-man at bay until the police arrived. Hardy is now facing sexual assault charges and is held on high bail. He is accused of assaulting two girls.

Mr. Hardy has just recently announced that he refuses to testify against the Defendant because doing so might incriminate him. As any daily reader of this blog knows, this is his right under the Fifth Amendment to the Untied States Constitution.

You might think the prosecution ends there. However, according to the Commonwealth, it doesn’t. The prosecution claims that it can prove the case against the Defendant even without the testimony of Mr. Hardy.

Maybe…force one of the girls to testify against their hero?

The Defendant’s lawyer calls the prosecutors’ decision, “an asinine lack of discretion. It’s not like [the Defendant] lined up a baseball bat like Manny Ramirez .He tried to do the right thing.”

The Defendant’s girlfriend said she fears, “He won’t last in prison. He can’t even hold a food tray.”

The Defendant has no prior criminal record and was offered pretrial probation on the bat assault charge that did not require him to admit guilt if he stayed out of trouble for a year, However, he says that his conscience would not allow him to accept it. “I did what I had to do, and the rest doesn’t matter,”

Attorney Sam’s Take On Vigilantes And Self-Defense

This is one of those conundrums that, I suggest to you, could easily be seen both ways and, in fact, underscores one of the truths we have discussed about the criminal justice system.
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Do you still wonder why Massachusetts law enforcement come in with a strong need to maintain control of a situation when dealing with a Boston domestic violence call? Maybe today’s blog will convince you.

Meet Boston police officer Shawn Marando, hereinafter, the “Officer”, 13-year veteran and an officer who teaches women how to defend themselves . Earlier this week, he was about to finish his overnight shift when a call came in from a Dorchester woman who said that her boyfriend had assaulted and threatened to kill her. The Officer went to answer the call.

Minutes later, the Officer, and two other officers, arrived at the scene to find said boyfriend, 25-year-old Tyrone Cummings (hereinafter, the “Defendant”) and a the caller’s sister. According to the Commonwealth, the Defendant reacted by firing a gun at the Officer, striking him in the calf.

So much for retaining control of the situation.

The Officer and another officer fired back, hitting the Defendant several times in the chest. The sister was hit in the leg.

Believe it or not, all were expected to survive.

“As this incident demonstrates, there is no such thing as a routine call,” Police Commissioner Edward F. Davis said. “It’s clearly our worst-case scenario.”

This marks the third time since November that a Massachusetts officer has been shot in the line of duty.

Attorney Sam’s Take On Massachusetts Shootings, Domestic Violence And Police Response

So…did the police over-react by firing back so much? After all, the Defendant was hit a number of times in the chest, which one would have expected to kill him. Not only that, but the sister, assumedly an innocent bystander, was also hit.
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It is not every day that we see law enforcement respond to a melee with yey more confusion. It would appear, however, that this is what happened at the recent Carson Beach South Boston assault and battery happenings this past weekend.

in fact., while the state police opine that the violence was caused by rival street gangs, it may be that the only rivalry involved is between police organizations.

The State Police have described tthat heir response to Carson Beach, which is located only minutes from their South Boston barracks, was caused because of the report of a fight between two rival gangs. Now, the Boston Police question whether rival gangs were involved at all.

Meanwhile, no dangerous weapons were confiscated over the weekend and there were no serious injuries reported during the flare-ups, which also occurred in the area around Savin Hill, Malibu Beach, and Pleasure Bay.

Not usually the case with gang violence.
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There are alleged truths that we treasure about our criminal justice system. We hold these beliefts dear because they make us the “fairest” system in the world.

Among them are the following:

1. All accused are presumed innocent unless and until proven guilty beyond a reasonable doubt.

2.We believe that a jury verdict is the word of the people, our peers. Except in situations where we find that the judge made a legal error that deprived the defendant of a fair trial, we generally adopt the jury verdict as truth.

3.Our system is as compassionate as possible. While we also wish to punish, our other main objectives in passing down criminal sentences are consideration of the defendant’s past and hope for his/her rehabilitation, the effect of the case on the victims and the protection of the community.

Now, let’s apply these beliefs to the verdict and sentencing in Commonwealth of Massachusetts v. Mark Kerrigan, a Middlesex County homicide trial.
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If you thought you heard a familiar voice and name (mine) on WBZ radio today, you were correct. I was interviewed about today’s Kerrigan verdict.

As you know, Mark Kerrigan, brother of famous Olympic skater Nancy Kerrigan and hereinafter the “Defendant”, has been on trial in Middlesex County Superior Court in Woburn. The Defendant was charged with killing his father during an argument.

Today, the jury came back from deliberations. The decision was “not guilty” of Massachusetts manslaughter and “guilty” of the Assault and Battery count.

Now, while the parties prepare for tomorrow’s sentencing, prosecutors are announcing their dissatisfaction with the verdict and Nancy Kerrigan is speaking for her family indicating that they did not want any prosecution at all. So, it’s a sure bet they will ask for no jail time while the Commonwealth likely seeks the maximum.

Meantime, the Defendant remains in custody.
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