Articles Posted in Criminal Law

Yesterday, we discussed modern technology and how it helps the Commonwealth in its endless pursuit of….well…..you, if you happen to have a Massachusetts outstanding warrant.

When we left off, the question was posed of whether or not someone who is out of state, or out of country, can address an outstanding warrant without physically showing up in the Massachusetts courthouse from which it was ordered.

The answer is, as it is with most things in the criminal justice system, it depends.

In fact, this opens us to a discussion of the other side of the coin…how modern technology can actually help the defense…assuming the particular defense attorney knows how to use it.

Attorney Sam’s Take On Ways In Which We Use Technology To Help Our Clients

Today, it is easier than ever to represent clients who are either in another state or even another country. Naturally, it is no longer a hassle calling long distance numbers any longer. That is not news.

For years, sending faxes has been commonplace. However, technology has taken us further than that.

The telephone, of course, is no longer the only ways in which we are able to keep in close touch with far away clients. There is email. There is texting. There are programs like “Skype”. We routinely use devices to keep in close touch with clients wherever those clients may be. Need a document? Well, we can either fax it or scan it into the computer and email it. No problem.

“Well, back to the issue of the outstanding warrant, Sam. It is great that you can talk to me if I am out of the country, but can you resolve the outstanding warrant without my having to come back to the States and risk being arrested at Customs?”

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Through my various Attorney Sam Take blogs, I have tried to inform you of the realities of the criminal justice system. For the most part, I have concentrated on the participants, policies and statute involved. You should know, however, that what those participants do, and how criminal statutes are enforced, have changed over recent years due to technology.

We have discussed that modern technology has made it easier for law enforcement to share information regarding crimes and the people who allegedly commit them. As a case is pending, a person’s CORI is updated and so outside agency’s can access the information. Further, when someone is convicted of a crime, that conviction is also reflected in the CORI. Through the computers, it is easier for that information to haunt you.

Likewise, if you are convicted of an offense which can effect your driver’s license, the Registry of Motor Vehciles is notified through the same system and so takes whatever action it decides to make.

However, it does not end there.

I am often contacted by people who decided at some point not to join in the festivities of their court dates at some point. Sometimes, they stay local and hope to fade into the wood work. Often, they leave the Commonwealth, or even the country, in expectatuion that the court has bigger fish to fry than them and so will simply dismiss the case. They are wrong.

While there may be bigger fish…the criminal justice hook in you remains.

When you do not appear for a court date, a default warrant is issued in your name. This is an arrest warrant which, at some point, will come back to haunt you. Maybe the police will come a-knockin’ at the worst possible time. Sometimes you will be stopped for some motor vehcile infraction and then the warrant comes up and you find yourself arrested and brought back to court.

The same is true if you try to get or renew a driver’s license. Whether you are in the Commonwealth or in another state, the Massachusetts outstanding warrant is likely to come up and you will, at the very least, be denied the license.

Most people understand that this will happen if they stay local. They seem to think that, by leaving the state, the defeault warrant cannot touch them.

Again, this is a misconception.
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Security breaches at airports! Cyber-attacks throughout the nation! Shootings and killings (although, as the commissioner tells us, simply bringing the numbers up to par) in Boston!

Doesn’t sound too good, does it?

No, it doesn’t. And I am about to tell you that it’s even worse..

Attorney Sam’s Take On Your Risks In Criminal Investigations

You do not need an experienced Boston criminal lawyer to tell you that the above events are scary to anyone living who is aware of the news. The things that can happen to us should we venture outside, or even stay inside, are frightening.

“Well, thanks, Sam! Is that the bottom line to this week’s blogs? To tell us we are all doomed?”

Not quite. You see, I am actually an optimist by nature, although, when looking through my criminal defense glasses, I look at things as a paranoid. Both points of view, it turns out, come into play here.

By looking at things as a paranoid, I see two very real dangers which all these stories underscore and for which they sound the mental alarm.

First of all, none of these stories are new. These instances may have just happened, but we have faced them many times before. And yet…what are we doing about them?
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This week, the Boston Criminal Lawyer Blog has seemingly discussed two very different criminal matters. One was the white collar crime of cyber-crime and the other involved the other side of the criminal coin, violent crime. Shootings. Assaults. Murders.

It would appear that the only thing the two blogs had in common were that they were depressing because those charged with combating these problems seem to be almost throwing up their hands in hopelessness. Some even try to put a “smiley face” on the subject in order to cheer folks up.

This is how we conduct criminal investigations, you see?

As you will see, this is the part that should concern you.

The blogs, and the news they reflected, may have depressed you.

They angered me.

Attorney Sam’s Take On Defense And The “Bad Part”

Do you remember, after September 11th, how everyone seemed shocked and angry when it came to light how weak security was at various airports?

I do.

We were thereafter told how the security was made much better. To prove the improvement, zillions (I am not sure if it was millions or billions, so I will compromise and use neither) of dollars were spent and new procedures were set up. There was no denying that these new procedures were in effect…everyone was complaining about how inconvenient they made air travel.

Would you be interested to know that, earlier on Saturday, New York’s John F. Kennedy airport was the scene of a breach in security which should boggle one’s mind?
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You probably do not need an Attorney Sam’s Take to tell you that, for trial, preparation is necessary. In fact, it is vital.

Nor should you need an experienced Boston criminal lawyer to tell you that the preparation for trial begins at inception of the case. After all, the defense is already behind the eight ball. This is because the prosecution knew that it was bringing the charges, knew about whatever investigation was going on, has spoken to its witnesses and has written up all of its reports. It knows with those reports say. The defense does not until the reports are given over.

In felony cases, there is also the grand jury minutes. As we have discussed, prosecutors put witnesses in front of a grand jury to get an indictment. Therefore, the prosecutors know what was said in the grand jury. The defense does not know until the grand jury minutes are handed over. In fact, in many cases, the defense does not even know who testified before the grand jury until those documents are handed over in discovery.

Earlier in the week, we discussed a matter in which it seemed that witnesses for the prosecution were actually some nice folks who dodged the bullet of prosecution by cooperating with the prosecution. Otherwise they might have been defendants. The defense was seeking documents which would reflect what, if any, deals were made with these witnesses which convinced them to join the “good guys”. After all, it was clearly evident that these witnesses were given some kind of a deal because they were given immunity from prosecution. So the question the game what were the details of the deal?

Obviously, an important question.

iIt would seem a simple deduction, then, that this information would be promptly given over to the defense so that the defense may investigate the statments made and the motivation of these prosecution witnesses.

Only fair, right?.

In the land of Fairytale Justice, where the prosecution is simply looking to find and express the truth, there would be no question as to whether the prosecutors would give this information over right away.

in my quarter century of experience in criminal law, I have not yet found any courthouse located in the jurisdiction of Fairytale Justice. I have handled cases in many other jurisdictions, however. All of these seem to be rooted in the strange world of Reality.
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It’s over.

All the preparations, drafting of motions, strategizing and the battle of the trial itself. over.

You give your last “all” in your closing argument, deal with the opposition’s summation and live through the judge’s Final Charge to the jury, ready for any legal issues which arise there.

And then…

…the jury goes out to deliberate. And all life seems to stop.
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This Boston criminal lawyer has been there more times than he can count. It never gets easier.

” ‘easier’? How can it be difficult? Unless the jurors have a question, you have nothing to do until they reach a decision.”

Yes, and that is the problem. There is nothing else that you can do. What you did was done. What you did not do was not done. Decisions were made both prior to and in the heat of the trial. Were they the correct ones? At this point, you can question and re-question yourself, but there is nothing you can do about it.

Except wait.

There is nothing else that you can do except maybe help your client and his loved ones through the wait. After all, you were just the advocate. Your client’s freedom is at stake. Depending on what that jury does, the life he knew may now be history.

That is, if you are on the defense side.

I have been on the other side too. Though it was long ago, I remember it well, from rape to drugs to murder. The perspective was different from what I was to find as defense counsel.
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Perhaps this posting should be entitled, “let’s put it this way…”. But then, I am a lawyer, so folks expect me to do things like answer a simple yes or no question with a 157 word response.

We have discussed the effects of public opinion on the criminal justice system many times. A couple of days ago, I was talking to a client about what might happen during a hearing and an old tried-but-true term leapt out of my mouth and into the telephone. By the time my brain caught up with it, I realized how descriptive it was of the judicial system, particularly when it comes to criminal justice .

And so it was that this Boston criminal lawyer rediscovered the concept of “the path of least resistance”.

In a nutshell, those five words capture the issue about which we so often speak. In this circumstance, consider public opinion to be the resistance indicated. The so-called path would be the path a case takes. Sometimes, that path is straight and well-paved. Sometimes, however, it is very windy and has many obstacles, holes, hills and other debris. This debris can be seen to slant and obscure parts of the path because of opinion, misunderstandings and prejudice. In short, the “resistence” is the media response.

After all, what can you expect from a system which places human beings in charge of finding “truth”?

Well, of course, it is more than that. Our system has developed a handicap in its search. Namely, it has certain potential threats which often inspire fear-based decisions on what “truth” is. We have discussed these many times. It is that “what if” complex involving the next day’s media accounts.

The perception of public opinion was never meant to decide criminal cases. That was supposed to be done by cool and fair-minded deliberation…not mob mentality. However, today, we are living in the era of intolerance and pre-supposing what the truth “must be”. Judges are investigated if they seem too pro-defendant (a bias on the other side is no problem). Parole Boards are disbanded and shamed if they release someone and something goes wrong. Politicians, including those involved in criminal justice, are “soft on crime” weaklings should they not show an assumption of guilt while we congratulate ourselves for having a presumption of innocence.

And so, we come to the criminal justice definition of following the path of least resistance. In other words, “What decision can I make that will not get me in trouble or even cost me my job?”

Unfortunately, it can be summed up in one word…”guilty”.
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We discussed this case during its trial. You may recall the criminal trial of Mr. Dharun Ravi, 2 years of age and hereinafter, the “Defendant”.

Initially, he was accused of bullying because he used a webcam to spy on his Rutgers roommate kissing another man. Shortly after learning about the recording, the roommate, 18-year-old Tyler Clementi committed suicide.

The tragedy was met by calls for the Defendant’s hide as his “cyber-bullying” was considered responsible for the death. There were even pronouncements of ‘murder” being bandied about.

Throughout my years as a Boston Criminal Lawyer, I have warned my clients that it is not really the conclusions made at the inception of a criminal investigation or arrest that will determine the result; it is generally what happens by the time the matter gets to trial. Indeed, things changed a bit by the time the Rutgers case went to trial.

At trial, the prosecution made it clear that it was not holding the Defendant responsible for his roommate’s death. Further, the charges did not include homicide, cyber-bullying or even bullying.

Instead, now it was a hate crime. A hate crime because the Defendant invaded his roommate’s privacy in a way which intimidated him, all because of his bias against gay people. The big issue in the case? Whether or not the Defendant was indeed homophobic.

In March, the jury found the Defendant guilty. Now, the New Jersey judge has sentenced him.

The court sentenced the Defendant to 30 days in jail He also placed the Defendant on three years of probation. The judge declined imposing a stiffer prison term, which could have included up to 10 years in a stricter prison. He also did not recommend that the Defendant, a citizen of India, be deported. The Defendant was, however, also ordered to get counseling and to pay $10,000 toward a program to help victims of bias crimes.

Attorney Sam’s Take On Hate Crimes

The prosecutions of crimes that are regarded “hate crimes” underscore the fact that the j rules by which we live can and do change, depending on the circumstance.
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