Articles Posted in Criminal Law

Hmm… I wonder if you see a connection between two stories in yesterday’s news.

First of all, it seems that the number of Massachusetts prison inmates granted parole has dropped significantly this past year. You may recall that, during this year, the state Parole Board was overhauled in the wake of a paroled gentleman murdering a Woburn police officer after release.

According to prisoner advocacy groups, the number of inmates released on parole in 2011 was 435. In 2010, the number was 1,028.

Meanwhile, the new board is having problems of its own. It is dealing with a backlog which it conveniently blames on the prior Parole Board.

An example of the result of this backlog? Well, some inmates were actually granted parole by the parole board since last April. The only problem is that none of these inmates, nor their families, have been advised of that fact.

Don’t worry…the Board does not play favorites. Those whose pleas for parole were rejected have also not been so notified.

Prisoner advocates say the delays, coupled with stricter standards for releasing other inmates on parole, have contributed heavily to a 58 percent drop in the number of inmates who are released under parole supervision putting upward pressure on the state prison population.

“The total effect is more people in prison overall, and fewer people released under supervision,” said James R. Pingeon of Prisoners’ Legal Services, a group that provides representation to inmates. “It’s doubly bad.”

Now, the Parole Board chairman, recently-former Assistant District Attorney Josh Wall, defends his agency’s performance, arguing that the new board is simply being more careful while coping with a shortage of resources.

He attributed the delays in notifying inmates about their parole requests to a backlog of cases left by the previous board, more rigorous scrutiny of parole applications, and a staff shortage.
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With all due respect to my fellow professionals, I sometimes think that if you would read the Boston Criminal Lawyer Blog more often and take its message to heart…maybe we would not be looking back and saying “Whoops” so often.

The jury came back last week in the New Jersey case of Dharun Ravi (hereinafter, the “Defendant”). Actually, I suppose it should be known as the “Tyler Clementi trial” because Mr. Clementi and his death over-shadowed the trial…although the Defendant was never charged with his death.

Before we discuss the verdict, I would like to remind you of the first days that this matter came to light. We were still in the anti-bullying haze of the Phoebe Prince case.

The root of all evil was The Bully. While mis-reported “facts” abounded, the crusading local district attorney (now, ex-district attorney) grabbed headlines by indicting the kids involved in alleged bullying incidents. The Massachusetts legislature flew into a rushed frenzy, perhaps to not be undone, and passed an anti-bullying statute that they proclaimed the “toughest” in the country.

Apparently they had very little faith in the rest of the country’s strength because not only did the statute do nothing and have no teeth, it was also a vague omni-directional attempt to aid others in the passing the buck and confuse the situation further. It did give us a new holiday, which is “No Name Calling Day” which is to be celebrated annually.

I missed that particular parade this year. I did, however, find that last piece of nonsense kind of ironic given they were claiming the law prohibited any name-calling whatsoever. But, hey, that’s just me.

So, in the middle of Massachusetts officials’ jumping through semi-creative hoops to put an end to all bullying, New Jersey had its incident at Rutgers University. Again, before people bothered to get their facts straight, various versions of the story filled the airwaves and internet.

The most common version of the story, albeit apparently untrue, was that the Defendant had a roommate who was gay. Learning that his roommate was about to have a rendezvous in their room, the Defendant thought it would be a great idea to set up a webcam and broadcast the two men across campus. As, after the fact, Mr. Clementi (said roommate) found out about the broadcast, he took his own life.

Screams of “Murder!” and “Bully!” filled the air.
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Before we go into other reasons that a defendant may decide not to testify, there is one thing I should make clear. Whether or not to testify is nobody’s decision than the defendant himself. It is not the decision of the defense attorney, nor the judge and certainly not the prosecutor.

While it is clearly advisable that a criminal defendant consider his lawyer’s advice, the right to testify includes the right not to testify and that right belongs to the defendant and nobody else.

There are a number of things to consider when deciding whether the defendant should testify. We began discussing them yesterday.

Sometimes, regardless of what the substance of the testimony is the defendant can simply come off poorly. Unlikable even. If so, this will not help when the jury deliberates and harkins back to its perceptions made during the trial.

People tend to not trust people they do not like. Further, sometimes, what the jurors wish to find colors their verdict. In other words, the fact that a jury wants to acquit the defendant can sometimes make the difference.

I believe it was Benjamin Franklin who said that it is better to keep ones mouth shut and look foolish than open it and remove all doubt. That theory fits in here.

Another thing to consider is what the defendant is even planning to say on direct examination, when it is his own attorney asking the questions. Is it worth the risk? Does it open the door to material the defendant wants to avoid?

“what do you mean? What door?”

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This week, we have discussed the endings of a few high-profile criminal trials. We discussed the New Jersey Rutgers Cyber-Bullying case, the Mattapan Massacre Murder case and a homicide retrial in Lawrence.

All three trials had something in common. The defendants did not testify.

The issue of a criminal defendant testifying is a much more complex one than you may think. Many people assume, “Well, if she has nothing to hide, why doesn’t she take the stand on her own behalf?” In fact, in most criminal trials, defendants do not testify. In all cases, juries are told that they cannot consider the reason such testimony never took place. They are also told that they cannot hold it against a criminal defendant that she did not testify.

Do juries consider it and hold it against the defendant anyway? You tell me.

Attorney Sam’s Take On Whether Defendants Should Take The Stand

After one of my jury trials as a young prosecutor in Brooklyn, I had an interesting experience., The jury found the defendant “not guilty” and then met the defense attorney and me outside the courtroom to discuss the case. This is, or at least was, allowed in New York. It is not allowed in Massachusetts.
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Sometimes this Boston criminal lawyer has to just chuckle, look down and shake his head. So many things in the criminal justice system are predictable. And yet, we, as a society, seem never to learn.

Or is it simply that we do not care?

Two local criminal justice stories dominated the news today. The Mattapan Massacre trial and the plight of Catherine Greig, Whitey Bulger’s girlfriend.

Let’s check the news on the Mattapan murder matter first.

Today was the day for closing arguments.

As expected, the “front lines” of the war of words was the credibility of the prosecution’s key witness, Kimani Washington (hereinafter, the “Witness”) as all three sides gave their closing arguments in the trial concerning the quadruple slaying in September 2010 that has been called one of the most horrific in Boston’s recent history.

If you read my 4-part blog on this subject from last week, you know the issues fairly well. If not, you may wish to read them. Suffice to say, however, the Witness was indisputably at the scene of the crime…at least for awhile. He claims that he left before the shooting began. Of course, there is evidence, including physical evidence, that would refute this position. However, the Commonwealth, in its infinite wisdom, decided to cast aside doubt (and/or common sense) and rely on the Witness’ word as to how everything “went down”.

Being faced with the difficult choice of either testifying as the state desired or standing trial for a crime that is punished by life in prison without the chance of parole, the Witness chose Option A.
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In most cases, from OUI, to drug crimes , to rape, the criminal justice system views the beginning of your prosecution when you are brought into court and standing before either a judge of some sort for arraignment. In some cases, usually in superior court, Clerk Magistrates handle the arraignments. Make no mistake though…this is no Clerk Magistrate Hearing for probable cause. No, that bird, if it ever existed in this case, has flown.

You have been charged. That accusation is now on your record. That is not likely to change for a long time…if ever.

Yesterday, we discussed the reasons you might want to bring an experienced criminal defense attorney to a Clerk Magistrate’s Hearing.

Today, as you enter the halls of Justice, either via summons or chains, you wonder if now would be a good time to hire competent counsel…or would that be pushing it?

Attorney Sam’s Take On Why You Want Experienced Counsel At Your Arraignment

Well, if you are even the most casual regular reader of the Boston Criminal Lawyer Blog, you know that my answer to that question is that it would not be “pushing it”. In fact, as stated many times before, it would have been better had you had experienced counsel well before your arraignment.

However, my talents as a lawyer do not include turning back time. So, let’s pick it up at the arraignment.
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You have been charged with a crime.

You went to court, either for a Clerk Magistrate’s Hearing or for your Arraignment, without a lawyer. You figured the court would give you a lawyer and you would be home free. After all, maybe you know you did not do what they say you did. Perhaps you figure they will never be able to prove it if you did.

As you walked confidently into the courtroom, you figured, “I will just tell my side of things and this pain in my schedule will be over.”

Well, chances are, if you went to a Clerk Magistrate’s Hearing, you walked out muttering something about being “railroaded”. The Clerk listened politely to whatever the complainant had to say, although you knew that said complaint was lying badly. When you told your side of things, the Clerk simply shrugged, found probable cause and told you that you would receive notice of your Arraignment in the mail shortly.

If it was an Arraignment, some attorney you have never met before stood up on your case knowing next to nothing about either you or the allegations against you. Maybe there was a bail hearing and you are now locked up. Perhaps the judge told you that you do not qualify for court-appointed counsel and will have to either go out and hire an attorney by next time or represent yourself.

Perhaps you have now learned…you do not want to simply represent yourself.

Attorney Sam’s Take On Why There Is A Rush To Retain An Experienced Criminal Defense Attorney

If either of the scenarios above occurred, you are already a few steps behind where you could have been in your new criminal justice nightmare. The fact is that, upon learning you were being charged with a crime, you were already behind the prosecution. The prosecution had already conducted its criminal investigation and decided on the evidence against you and the charges you will face.
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The Boston Criminal Lawyer Blog was discussing evidence. How much is necessary to find a defendant guilty. What kind of evidence can be admitted and when.

That kind of thing.

Putting aside the issue of actual character evidence, bad acts and prior
convictions are often admissible to impeach a witnes’s credibility.

“Isn’t that to show the witness has a bad character?”

Well, technically, no. It is an example of a legal splitting of the proverbial hairs. For example, this evidence can not be introduced into evidence to show that the
witness has a propensity to commit such bad acts. It is only admissible, in
most cases, to be considered by a jury when judging credibility.

“So, isn’t that the same thing as showing that the witness is not worthy of
belief because he or she has a bad character? Bad character because he or
she commits bad acts?”

You might see it that way, in every-day logic, but according to the law…not really. It is just
there as information the jury may want to consider when judging credibility.

Period.

“Ok…is that the only reason for which such evidence can be admitted into
evidence?”

No. There are, as usual, exceptions to the general rule. For example, let’s
say a criminal defendant is on trial for Kidnapping and rape. The Commonwealth contends that he lured an unsuspecting lass to him by advertising that he was giving away a free puppy. It turns out that there were three previous allegations against him for rape and, each time, he allegedly did it by luring
his alleged victims by an ad stating that he was giving away a free puppy. He
was convicted on those previous matters, by the way.

“Doesn’t the fact that he was found guilty in those cases mean that this
evidence automatically can come in?

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As you know, if you are a daily reader, the Boston Criminal Lawyer Blog often finds fault with the criminal justice system. Frequent targets of my wrath are law enforcement officers and district attorneys.

Well, I guess that makes sense. I am, after all, a criminal defense attorney.

However, the fact remains that, in general, I have a great deal of respect for cops. I just think that it is important to remember that, while given certain privileges and honors, we sometimes fail to remember that they are, after all, human beings. Human beings, all of us, have faults and weaknesses. What frustrates me is that the rest of the public, as well as judges and prosecutors, overly follow what is represented by police officers…sometimes blindly.

But that is an argument for another day.

Today, I bring to your attention a positive story about a cop. He is being deemed a hero, and I could not agree more.

Boston Police Officer Robert Robichaud began today by responding to a 3:45am call of a distraught female who was threatening to jump from a roof of a Dorchester apartment. He ended up saving a life.

The officer who had been with the department for three years says. “A call came in for a person on the roof and I happened to be right around the corner from the call,” Robichaud explains. “Nothing was really going through my head, I just responded to the call.”

Apparently, when he arrived at the scene, the woman was sitting on the roof yelling at the folks below.

“I saw who I believe is her daughter and somebody else she was talking to on the ground,” he said. “Several others were looking on from their porches and windows.”

Additional officers arrived went into the home to try to speak with the woman from an upstairs window. Robichaud stood on the front steps and attempted to engage her from the ground.
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Super Bowl Sunday 2012 was a stunning disappointment for many New England Patriots fans. Some fans took their emotions to a higher level. And they may pay the price for it. According to the campus police, fighting from members of an unruly crowd of angry fans began around 10:00pm when the game ended and the crowd was told to disperse only a few minutes later.

Police arrested 14 individuals (including 13 students) during this disturbance and the criminal charges against them are being headed by Northwestern District Attorney David E. Sullivan, who plans to “vigorously prosecute” the individuals. The arrestees are being charged with failure to disperse, disorderly conduct, and rioting. The students involved will also be disciplined by the school authorities, according to media reports.

Interestingly, however, in what appears to be a departure from other past school riots where fires broke out and students were hospitalized, there were no reported injuries and no reported damages that occurred as a result of this incident at UMass. No other serious riots or injuries were reported on campuses (and for that matter, in general) following the game on Sunday evening.