Articles Posted in Criminal Law

The Boston Criminal Lawyer Blog has repeatedly told you that the participants of the criminal justice system…even the judges…are merely human beings. .

However, sometimes appropriate behavior for some folks is inappropriate for others.

For example,let’s say that, while driving home one evening, you saw someone who you believed to be a drunk driver plow into a tree. As the police respond to the scene, the driver gets out of his car and starts verbally accosting the tree with protests like, “Why don’t you watch where you are going?!”

Finding this behavior rather odd , you might decide to tweet or blog about the experience.

Now let’s add to the scenario that you are a Superior Court judge. Do you still think it is such a great idea to post the adventure?

In fact, it would not be. There is a standard for the behavior certain professions demand. It might seem “unjudicial” for a judge to be spouting off his or her views about such instances. Similarly, you would not expect a judge to start tweeting or blogging about behavior he witnessed attorneys engage in during court proceedings.

In a trial, be it civil or criminal, a jury is, in fact, a judge. Juries generally decide the facts-at-issue. This is why jury selection exists. While human beings do have their prejudices, it is important to do all that is possible to select those who can be fair and impartial in the case upon which they sit.
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One will never be successful in understanding the criminal justice system, be they lawyer or client, until the varying and conflicting perspectives are understood. The judge, police officer, prosecutor and defense attorney approach the same case from different viewpoints. Therefore, what is “right” to one is not necessarily “right” to the others.

It is therefore not usually a question of the somebody intentionally doing the
“wrong” thing. It is not a simple equation of good vs. bad. As such, testimony which conflicts with other testimony need not be a lie.

Ever play a game of “telephone”? We seldom witness and remember facts. We remember feelings and facts.

As much as math and I seldom get along, let’s put it thius way:

Feelings + facts = perspectives

The prosecutor assumes that the defense is guilty. After all, her witnesses, particularly police officers, said so. Police officers are held to a higher standard and so the assumption is they always live up to that standard and never lie, never mis-interpret.. They are never dishonest. The defendant, whether or not she can convince a jury, is, in fact guilty. Nothing else makes sense.

The defense attorney is charged with doing all he can, within ethical and legal guidelines, to defend the defendant. He cannot assume that the witnesses against his client are telling the truth if his client tells him that they are lying. Sure, a defense attorney has a gut reaction to that client as to how reliable he may be…but we are only human and humans tend to see what we want to see. After spending a certain amount of time in the system, one experiences instances where police officers are in fact undeniably lying. Not all. Not always. But it happens. A lot. But then, it is the officer’s word against yours…and who is going to believe you? You are a defense attorney!
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He is not from Boston, but I am willing to bet that when Dominic Marrtucci (hereinafter, the “Deputy”) left home to go to work at Ohio’s Summit County Sheriff’s Office on April 10 or 11th, he did not go with the intent to do something stupid.

Or actionable, for that matter.

However, that is what he is alleged to have done. And as a result, he has lost his job.

According to pending allegations, the Deputy ordered five jail inmates to dance to a song by Usher in exchange for privileges such as using a phone or microwave, according to the sheriff’s office.

The inmates were apparently locked up in a disciplinary area. Every show needs an audience, of course, and so the Deputy is said to have invited colleagues to watch.

After the resulting internal investigation, the 35-year-old Deputy was fired this week as the show violated department policies by mistreating inmates, acting inappropriately and having a cellphone in the jail, apparently used to play the music.

According to reviews, one inmate did “the worm” as the Deputy played Usher’s “Yeah!” while another did the robot so that he could use a phone to contact relatives after a family member’s death. The internal report also claims that inmates were asked by the Deputy to do a “bump and grind” routine if they wanted a recently removed microwave returned to their unit.
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Everybody is shocked. If you are a regular reader of the Boston Criminal Lawyer Blog, you shouldn’t be.

You know the dirty secret which everybody likes to ignore…to everybody’s detriment.

Let’s take this latest story as yet another example of said truth…

Allie, herein after referred to as “handgrip” does not want to be identified. Handgrip does, however, want to bring an allegation against law enforcement because of their handling of a Tea Party protest on the Boston Common. Specifically, handgrip is contemplating legal action against Boston police officer Vaden Scantlebury (heir after the “officer”) who was photographed with his hand around Handgrip’s throat.

Yes, Handgrip was a protester…while Handgrip could get the words out, that is. Handgrip indicates that Officer’s hand was used to push and not choke.

“He pushed me,” Handgrip explains. “I turned to him and said don’t push me. … Then he got angry. He grabbed me by the neck and then pushed me by the neck. He didn’t choke me.”

Boston police said they are scrutinizing the photo, which was taken by a 22-year-old college student, who uploaded it and other photographs of the event on the picture-sharing website Flickr.

“We need to review the totality of the circumstances and get a sense of what occurred before and after” the incident, Boston police spokeswoman Elaine Driscoll said.

handgrip said Officer’s actions seemed inappropriate and the protester is considering legal action, although Handgrip was not specific.

Police arrested three people that Sunday at the Boston Common, where Tea Party activists, who had secured a permit to gather, clashed with counter-protesters, many of them representing the Occupy movement. At one point, several protesters charged the spot where Tea Party activists were speaking.

Handgrip said that He or she came to the rally to represent gays, lesbians, and transgender people.
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https://criminal.altmanllp.com/sexual-assault-sex-crimes.htmlWelcome to Friday the 13th. Regardless how it goes for you, the folks over at Alpha Epsilon Pi at Boston University have already had a bad week.

As CBS in Boston put it, “the party is over”.

Previous to this week, the only problem they seemed to be having was with the university itself. B.U. was no longer sanctioning the fraternity house. This apparently took place nearly 20 years ago due to underage drinking.

Apparently, that was not bad enough to gain the frat boys’ alleged attention. Now, the fraternity’s national board of directors has shut down its B.U. chapter altogether because of that latest incident allegations of tying up and beating five students who were pledging the fraternity.

According to the Boston Globe, the fraternity is also calling for a three-day moratorium on pledging activities at its chapters in the U.S., Canada and Israel.

Who would have thought this would be an international incident?

As expected, the Boston police are also seeking criminal complaints in the matter. The complaints would apparently be against 14 gentlemen. The charges are to be hazing and assault and battery.

Attorney Sam’s Take On Hazing, Assault And Battery And Students’ Crimes

In my last Blog, we discussed the university’s stance on hazing as well as the Commonwealth’s definition of it. I left you with a question, namely what the difference was between assault and battery and the hazing (when it comes to A&B-type behavior).

The key to assault and battery is that it involves unwanted offensive touching. This would therefore leave out all wanted or permitted touching by the touchee. Therefore, all sadomasochistic activities would not be included. This would include permitted abuse which is often involved in these hazing incidents. Check out the last line in the statute as quoted previously.
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Hey, I am only a mere Boston criminal lawyer…you can’t expect me to know all the answers. That is what I rely on the media for to a certain extent.

For example, would be the best question to ask someone who has been in jail for about three years awaiting trial for murder and is now suddenly released because the Commonwealth has dropped the charges?

Fortunately, we have seasoned reporters who know just the penetrating question to ask. It turns out that the question is “How does it feel to get your freedom back?”

Brilliant. It never would have occurred to me.

But, once again, I digress. Today’s topic is the matter which took place in Dedham late last week. In that case, two suspects in a gruesome murder have been released from their close to three years in custody. The charges against them have been withdrawn as the key prosecution witness in the case has now died.

When asked how the creative question mentioned above, namely, how it felt to be free, one of the men said, “Why don’t you put yourself in my place and figure it out for yourself.”
Daniel Bradley, 50-years-old, a former football coach at Xaverian High School and Paul Moccia, 57-years-old, a Mass Pike toll collector (hereinafter, the “Defendants”) were accused in the 2009 murder of a 37-year-old Framingham man. According to law enforcement, the Defendants shot the man in order to avoid a $70,000 drug debt. The man’s body was never found and authorities believe it had been dismembered at Bradley’s cement company and disposed of.

This past January, the prosecution’s key witness, Moccia’s brother, died of natural causes. Now, approximately three months later, the Norfolk District Attorney decided to withdraw the charges.

The Norfolk District Attorney Michael Morrissey said the case largely rested on the key witness but now that the witness is dead it is impossible for the government to sustain its burden of proof.

The case remains under investigation. The district attorney is asking anyone with information to come forward.

Attorney Sam’s Take On The Dismissal Of Homicide Charges

I tend to criticize district attorneys quite often in this blog. Therefore, allow me to jump at the chance to credit them where applicable. What the Commonwealth has done in dismissing these charges, rather than waiting for the trial date, is to honor its responsibility to do the “right thing”. It realized that there is no way it could make what lawyers call a “prima facie case”…and so it dimissed the charges.

“So, Sam, does this mean that the Defendants have been exonerated?”

No. It means that the Commonwealth could not prove its case beyond a reasonable doubt at this time.”

“What do you mean ‘at this time'”?

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Today, the Boston Criminal Lawyer Blog finishes its three-part series on the mind-numbing issues surrounding the killing of unarmed Trayvon Martin (“Shot”) by George Zimmerman (the “Shooter”) in Florida.

Yesterday we concentrated on what Florida law enforcement must consider in determining whether there is probable cause to arrest the Shooter for any crime whatsoever. The fact that it was as close a call as it apparently is might have surprised some people.

Today we tackle what may be the most emotional issue of the whole thing. Certainly, it is the most explosive issue.

Was the killing of Shot a hate crime?

Not surprisingly, various news outlets report that opinions differ on the Shot killing by racial lines. Maybe. It is also clear that various political figures, including those who simply like to incite despite the fact that they have very-little-to-no credibility left have been quite vocal about this being a racial killing.

One would imagine that, as they decide how their criminal investigation will end, they need to decide whether probable cause exists that, if the Shooter committed any crime, was it racially motivated.

What do you think?

Attorney Sam’s Take On Hate Crimes

As you have seen, so-called “Hate Crimes” prosecutions seem to be on the rise throughout the country. Just recently, in New Jersey, a young man was found guilty by a jury of what the prosecution argued was a hate crime which led to the death of another young man.

This despite the fact that the prosecutor argued that the state was not holding the defendant in that case responsible for the death.

The argument was that the defendant did this hate crime because of his feelings about gay people because his roommate was, indeed, gay. The evidence, the prosecution argued, was various statements the defendant had made about whether or not he was comfortable having a gay roommate.
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Hey…good news! If charged in the shooting death of unarmed Trayvon Martin (“Shot”), George Zimmerman (the “Shooter”) will voluntarily turn himself in! This was announced yesterday by his attorney.

For those of you out there who thought that this was a big step in solving the mind-bending issue of whether or not there was probable cause to arrest the Shooter, it wasn’t. It basically translates to, “Hey, you don’t have to come to get me and embarrass me buy cuffing me and dragging me into court”.

It is basically something I try to do for all of my clients as a Boston criminal lawyer when they are wise enough to retain me before the arrest actually comes. As discussed in the past, it not only helps with the upcoming bail hearing and trial, but it also creates less of a disruption in one’s life than being unexpectedly cuffed at home or at work and dragged into a cruiser.

But I digress.

We left off yesterday wondering whether or not there was probable cause to arrest the Shooter for…anything.

The answer might surprise you!

Attorney Sam’s Take On Probable Cause And What We Know

Yesterday, I discussed how probable cause is treated here in the Commonwealth. Here, it is quite a low standard. Further, “self-defense” is a defense that may be brought by the defendant…at trial. Generally, while the prosecution might be willing to entertain a plea deal for, say, manslaughter in such cases, the fact that this will be the defense seldom prevents actual charges being pressed in the first place.

However, Florida may be alittle different. After all, they do have laws which give greater protection to those who “stand their ground” when attacked as opposed to Massachusetts where one has the duty to try and flee (especially if the incident does not take place in his home). So, let’s check in with some applicable laws from Florida’s statutes…
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The evidence seems to keep piling up for poor ol’ George Zimmerman (hereinafter, the “Shooter”) and, yet, there is still no law enforcement action about it. This man is getting benefits of the doubt that my clients would kill for.

No pun intended.

Let’s check in on the latest in the Trayvon Martin (hereinafter,”Shot”). See if you can find the missing piece of legal common sense before I reveal it.

As you know by now, on February 26,2012, the Shooter fired his gun into Shot, killing him.

According to the Shooter, he was on “patrol” on a neighborhood watch “detail” when he spied Shot walking around in the area. Apparently believing he had developed a keen sense in people-reading, the Shooter could just tell Shot did not belong in that area. Therefore, he was clearly a threat.

The Shooter called the police and reported the strange-seeming Shot. The police told him that they would handle it and not to follow him. And so, naturally, the Shooter followed him.

There was finally a confrontation between the two. The Shooter says that he kept asking Shot what he was doing there and Shot kept asking him why he was following him. The Shooter says that Shot assaulted him, without a weapon, and so the Shooter shot him. Dead.

Shot is no longer around to give his version of the facts. However, in this case, there is an unusual amount of independent evidence. No, I am not talking about the scores of people who knew Shot and insist that he would never attack anyone. I am not even talking about the myriad of politicians and publicity-seekers who are grabbing the spotlight to weigh in on a criminal matter about which they know little. I am referring to actual witnesses who heard what the shooting take place. I am talking about recordings which reflect what took place. And I am talking about pictures and video which do not seem to reflect what the Shooter claims took place.
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There has been another attack in Cambridge.

The most recent assault involved a woman in her 20’s. She was attacked near the intersection of Ellery and Harvard Streets. Just one day earlier, and only three blocks away, another woman around the same age was knocked unconscious at the intersection of Kirkland and Trowbridge. The thief robbed her of her iPhone and purse.

Apparently, the attacks occurred at night when the women were walking alone. They were also both wearing headphones.

The police opine that the women were less alert to their surroundings because of their wearing of the blaring headphones. Further, they say that such earbuds alert potential thieves looking for high-priced electronics to steal.

Police are warning women walking alone at night not to be wearing headphones and to be aware of their surroundings.

Police also say they cannot be sure if the incidents involve the same attacker, but the victims’ descriptions are similar, to wit: a light skinned black or white man in his 30’s.

Attorney Sam’s Take On Being Careful Out There

This story, which led the news Wednesday morning, reminded me of two other fine, albeit somewhat old, pieces of media. Both were from television.
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