Articles Posted in Criminal Law

Today, I bring you a case that I have already told you I feel is “disgustingly unreasonable”. It is a case that takes what I have warned you might happen and shown you that it is already happening. It involves the loss of one of the most basic of Constitutional rights that you rely on every day.

…At your own risk apparently.

Cameron D’Ambrosio is an 18-year-old high school student (hereinafter, the “Song Writer”). Song Writer likes rap music. In fact, he writes and performs his own songs. His latest music video, however, has not only landed him in criminal court, but due to what I can only imagine to be inept lawyering, overzealous (to be generous) prosecuting and a judge who I must assume has let his fear of the press lead him to a shamefully ugly stain on his judicial record has locked him away for awhile.

Like so many rap songs, his songs are said to contain profanity. They also contain images of violence. It is the genre which has not yet been declared illegal. Yet.

Claiming that his recent video contained a “bomb threat”, law enforcement decided, by way of a blatant and reprehensible taking advantage of the recent Boston Marathon Bombing, to perform alittle censoring of their own. They arrested Song Writer and brought him to court.

Once in court, Song Writer pleaded not guilty. Apparently, his defense attorney got that move right. The prosecutor then came up with the brilliant idea of requesting a Dangerousness Hearing in over a week and, in the meantime, holding Song Writer in custody without any right to bail.

According to accounts, the prosecutor did not go into details of the offense in order to justify the outrageous request. She did not have to. She had something better… the consent of the defense attorney!
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In my last Attorney Sam’s Take I told you I would discuss the other high profile court case taking place on Wednesday. The other matter took place at Boston’s federal court.

That’s right, the Boston Massacre bombing case. However, there is a twist to this posting. One that could have easily involved you or your child.

As you may have heard, three college pals of the surviving bombing suspect, Dzhokhar Tsarnaev (hereinafter, “Surviving Bomber”), were charged in a related case. No, there is no allegation that they actually participated in the planning or actual bombing. They are alleged to have helped out afterwards.

As authorities have already announced, this criminal investigation is continuing. Investigators intend to find out brothers Dzhokhar and Tam¬erlan Tsarnaev learned the tricks of the terrorist trade, including constructing bombs.

The fact that such information is freely posted on the internet as well as other places notwithstanding.

Leaving no potential stone unturned, officials arrested Dias Kadyrbayev, Azamat Tazhayakov and Robel Phillipos – all 19 years old and friends of Dzhokhar’s from the University of Massachusetts Dartmouth (hereinafter, collectively, the “Defendants”). Officials further indicate of the investigators that “…there are all kinds of avenues – 
international, domestic – they’re going to go down until there’s no one else to talk to…If these young people (the Defendants) have other information they haven’t shared with law 
enforcement at this point, they would be well advised to cooperate.”
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Yesterday, I began the first of this two-part Attorney Sam’s Take. Much of what is suggested has been discussed before in earlier Boston Criminal Lawyer Blog posts. However, I am hoping that the message is made even clearer when put forth in this way.

There are some decision into which you are rushed which can affect the rest of your life. This is one of them. However, before you start envisioning the proverbial gun to your head, understand a few things. First of all, the decision does not have to be final. If you have begun the case with an attorney who greeted you at arraignment or someone you picked up along the way, if you have lost faith in that attorney, you can probably switch. There are limitations to this, of course. For example, if your case is about to go to trial, the court may not allow you the time needed for your new attorney to catch up to speed. Also, if your attorney has been appointed by the court and he is the third such attorney you wish to fire, the court might decide that you are simply being too difficult and not allow you yet another court appointed attorney. However, you can always either hire your own lawyer or represent yourself.

The latter…although it is your right…is a bad idea.

That said, my list continues:

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6 Does The Lawyer Have Experience In The Type Of Allegations Of Which You Are Being Investigated Or Accused?

Many long-time criminal defense attorneys have handled most types of criminal matters. But you cannot assume that they have. You have to ask.

For example, there are some defense attorneys who only focus on one type of crime. They might be brilliant in handling drunk driving cases. However, would you want to take a chance on how they are going to do in representing you for drug trafficking or murder? How about if you are being investigated and the result of that investigation can change your life?

I didn’t think so.

7. Has The Attorney Brought Any Cases To Trial?

Most criminal cases, like civil cases, end up in a negotiated disposition. In other words, an agreement is reached (known as a “plea bargain”) prior to the matter going to trial.

That is not, however, always the case. Particularly if you are not guilty. Furthermore, even if your case does end prior to trial, trial experience is important to not only determine the chances of a favorable outcome should there be a trial, but will also put you in a better position to bargain.

You do not want to be in the position that you feel you have no choice but to “plead out” because your attorney is not prepared as a trial lawyer.

8. How Often Does The Lawyer Actually Go To Court? How Experienced Is He/She In Motions Practice?

Criminal cases do not end overnight. The road to their resolution is just as important as the trial or plea date on which the case ends. How the matter is handled during your trip down that road is critical in both evaluating the case and bringing it to a successful conclusion.

There are usually a number of motions that should be brought on your behalf long before any trial date. The most important such motions are motions for discovery, suppression of evidence and dismissal of the case. Not all of these motions, of course, are appropriate in every single case. You need experienced counsel to be able to ascertain the propriety of, draft and argue the motions.

A lawyer with little experience or who tries to manage the case from his or her favorite armchair in the office is not likely to be your best bet when it comes to this part of the case.

You want a lawyer who is comfortable and confident when it comes to being in court and fighting for your rights. This usually means someone who is used to being there and doing this on a very regular basis.
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In these various Attorney Sam’s Takes, we have discussed particular stories in the news as well as the realities of today’s criminal justice system. I have maintained (perhaps ad naseum) that one of the main reasons for this blog is to communicate the realities of the system to you who are not involved in it during your daily life. My hope is that if enough people come to realize the truth…maybe we can make some necessary changes before it is too late.

Speaking of it being “too late”, though, what happens when your world is shattered and it suddenly seems like it is “too late” to prevent either yourself or a loved one from being pulled feet-first into the criminal justice quagmire?

“Well, you have told us that too, Sam. Over and over and over, in fact. We want to get an experienced criminal defense attorney to help us.”

Yes, this is true. However, you are, to put it mildly, scared. Your freedom, future and life are on the line. Yet, somehow, you are supposed to make a decision now both quickly and deliberately. Your mind is whirling around with the bad possibilities that await you.

In this and my next posting, I will suggest some considerations that I hope will be helpful to you when approaching the decision of which attorney to retain.

1. When Should I Hire A Criminal Defense Attorney And Why?

Usually, if the question strikes you…it is time to, at least, consult a defense attorney. Perhaps you have been questioned by law enforcement or a supervisor at work. Perhaps there is a rumor that you are suspected of some kind of wrongdoing. You would be surprised by how little it takes for you to be at the wrong end of the finger of accusation.

Remember that whenever you retain counsel, you are already behind when compared to the other side. They already knows what information they have gathered and what they plan to do with it.

Even if you are a mere suspect, a good defense attorney can start gathering information, advise you and protect you to the extent possible for the upcoming fight. He/she may even be able to prevent the prosecution.

Many defense attorneys offer a free initial consultation. Take them up on that.
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In my last blog, I indicated that I would discuss another issue brought up by the incident involving the moter vehicle case which took the life of a young child. In that matter, the Commonwealth alleges the mother-driver caused the fatal accident by fleeing from a more minor accident.

Meanwhile, a little further north, in New Hampshire, a gentleman has been sentenced in a matter which just about defines the power of bad judgment in certain lives.

Casey Fury, 26 (hereinafter, the “Defendant”) was a painter in May, 2012. One fine day he was working in a submarine. He wanted to leave work early.

The Defendant’s solution? Set fire to the submarine!

Officials say that the fire caused $450 million in damage to the USS Miami while it was dry docked for an overhaul at Portsmouth Naval Shipyard in Kittery.

Federal prosecutors say that the Defendant actually had involvement with two fire-type crimes. They claim that after the first fire, which injured five first responders as they battled the blaze for 12 hours in cramped quarters aboard the nuclear sub, the Defendant set a second (albeit smaller) fire three week later on the dock, and later, signaled a false alarm by pulling a fire alarm.
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We end the month of February this year with a story about a watcher who should have been watched. It concerns Gardner’s 23-year-old Jesse Holland (hereinafter, the “Defendant”). It also deals with the issue of Massachusetts search and seizure.

The Defendant is an involuntary guest of the Commonwealth this evening. He is being held without bail as the local prosecutors charge that he is too much of a threat to be let out of custody.

The Defendant works (or worked, at least) as a security guard at Waltham High School. He stands charged with possessing chemicals that could be used to make an explosive.. Law enforcement says that he stole these chemicals from the high school. The materials include iron powder, aluminum powder and magnesium metal ribbon.

Mixed together in the right way, apparently, a rather strong bomb can be made.

The Defendant was arrested on Wednesday morning in a Leominster store parking lot. Police say that, when they noticed him, he acted suspiciously as he was downloading a movie. Somehow, noticing him “act suspiciously” led to the search of his vehicle. During the search, officers say they found the chemicals, a hatchet and a stun gun.
Apparently, the Defendant was also give to making inculpatory statements to the officers. They say that he told them that he intended to throw the chemicals into a fire to “see what would happen.”

In the video I watched online, I saw one of the officers indicating that he did not see the Defendant as someone who wanted to hurt anyone.

Apparently, the prosecutors did not share that view at arraignment.

Attorney Sam’s Take On “What Could Have Happened”

It is important to realize the type of explosive we are talking about here. It is not of the atomic or nuclear variety. It will not blow up the neighborhood. However, as one can see on the video on the news, one can certainly cause damage and serious personal injury.
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You have, no doubt heard about things like ” good cop – bad cop” and “playing cat and mouse”. Regardless of the circumstances, they are games. No doubt they are used in under very serious circumstances. Who wins these games truly matters.

But that does not make them not games.

Whether it be as intense as a homicide investigation or simply trying to get an admission out of an alleged drunk driver, the procedure is a game. A game in which lesser games, such as those to which I referred above are used.

Likewise, as the defense attorney and the prosecutor plan strategies and try to bend the rules of evidence to their favor, the courtroom theatrics are a game.

Lives hang in the balance. That is true. However, the two sides of advocates are not looking for any truth. They have already developed what they will put forth as the “truth”. The goal of the game of trial is to convince the jury or the judge. It is very serious business. However, it is still a game.

My various Attorney Sam’s Takes have ranted about this from the beginning. In order for you to understand how the criminal justice system works, you have to acknowledge that fact…as distasteful as it may seem.

“Sam, are you saying that prosecutors do not really care about issues of Justice…that they are just engaged in a game?”

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Various of my recent Attorney Sam’s Takes have led us here. We have discussed DCF and police investigations. We have discussed Clerk Magistrate’s hearings which determine whether probable cause exists to issue a criminal complaint.

We all know that you need a lawyer when you are facing criminal charges in court. But, what about before then? After all, there are no charges pending against you yet…why hire a lawyer already?

You ask the local police officer and she tells you that, for the investigation or Clerk Magistrate’s hearing you do not need an attorney. You check out this daily criminal law blog and seem to be telling you that you should hire a lawyer before you even take one step out of bed in the morning.

Whether and when to engage the services of a criminal defense attorney clearly centers on what the attorney can do for you. Do you need to check in with a defense attorney each day as you close up your work until the next day? Probably not. But if you have reason to believe that your bosses suspect that you are “cooking the books”? Then I would answer differently.

“Won’t I look guilty if I hire an attorney before charges are brought against me?”

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Not all crimes are about physical injury to people. Some, like malicious destruction of property, have to do with physical injury to things. In fact, said injury does not even have to be permanent.

Take the crime of defacing property with graffiti, for example. It may surprise you to know that, in general, such crimes are actually prosecuted. It will probably not surprise you, though, to learn that certain graffiti will bring prosecution.

And not simply for the “tagging” of the property either.

Such graffiti can actually be considered harassment. It can also be considered a Massachusetts hate crime.

Take recent developments at Wheaton College, in Norton, where a criminal investigation is currently ongoing. Authorities are investigating anti-Semitic graffiti found morning on a residence for Jewish students.

According to school President Ronald A. Crutcher, “Crude and hateful graffiti” was found on the back door of the Jewish Life House at 17 Howard Street. Students at the house have reported being targeted before, including derogatory remarks shouted from the street as recently as Friday evening.
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