Criminal Law

September 5, 2011

“I unhappy With My Boston Criminal Lawyer. Can I Change Attorneys?”

Today is Labor Day. I am a Boston Criminal Lawyer. It is what I do in my days of labor. And so it seems appropriate to post this blog today, rather than this past Friday. Call it rationalization if you wish, but today we tackle the question to which I referred on Thursday. What if you are dissatisfied with your criminal defense attorney? Are you stuck?

Unlike most of the questions we pose in this daily blog, there is a simple one-word answer to this question. The answer is “no“.

There are, however, some things you should keep in mind.

Attorney Sam’s Take On What You Want In An Experienced Criminal Defense Attorney

There are a number if things to keep in mind if you are looking to switch counsel in an ongoing criminal case. One is the timing of the switch.

“I know… because if you change too deeply in, you will anger the prosecutor or the judge, right?”

September 1, 2011

“I Have Learned There Is A MA Arrest Warrant Out For Me. What Do I Do?”

by Samuel Goldberg

This has been a pretty bad week for you as far as the Boston Criminal Lawyer Blog is concerned. Earlier in the week, you were facing two trials. Yesterday, you were arrested.

The news is good and bad today. The good news is that you have not been arrested after all. The bad news is that you have learned that there is a Massachusetts warrant out for your arrest.

Similar to the issues discussed yesterday, there are general factors when it comes to arrest warrants which are the same whether the underlying accusations are for a Tewksbury home invasion, a Mattapan gun possession or a Swampscott drug case.

However, with such a warrant, law enforcement can pick you up any place and any time and place you in custody. There will not be any issue of bail until you find yourself in front of a judge, who must then vacate the warrant. Then, there will likely be a Massachusetts bail hearing to decide where you will be staying for the next several months (at least).

There is a simple two-word answer to the question of what to do when you find out about the warrant. Namely, “Get Counsel“!

On the other hand, if you are a daily reader of this blog, you know that every few situations in criminal justice can be summed up in two words.

Attorney Sam’s Take On MA Arrest Warrants

Massachusetts arrest warrants are usually issued when one of two things have happened. One is that, whether you knew it or not, there was a criminal investigation taking place in your name. The Commonwealth has decided to charge you with one or more crimes. The purpose of the warrant is to have you picked up and brought in before the court. In custody. Once there, the lawyers can argue under what conditions you might be released.
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August 31, 2011

What To Do After You Have Been Arrested In Massachusetts

by Samuel Goldberg

The Boston Criminal Lawyer Blog has been warning you it could happen.

It has suddenly happened…and it was the last thing you expected. You (or a loved one) have been arrested.

You came home tonight after work and, just as you were sitting down to eat, you received company at your door. The company was dressed in blue. They had a colorful car with a pretty red light on top of it.

They told you that they were there to arrest you.

You first thought it was a joke. But then you noticed that they did not seem like the humorous type.

And then they produced the Commonwealth Bracelets of Shame.

And off you went downtown, trying to remember what you had heard about the realities of Massachusetts bail hearings.

Attorney Sam’s Take On Getting Arrested In Massachusetts

Whether you like it or not, it is not terribly difficult to get arrested these days in Massachusetts.

Yes, of course, you could take the easy road and actually commit a crime. However, you could also have angered the wrong person. You could have made a momentary error of judgment. There could be, simply put, simply a mistake being made.

The point is…what do you do when it happens?
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August 25, 2011

A Boston Criminal Lawyer Discusses Potential Evidence In Woburn Murder Case (Part Two)

by Samuel Goldberg

Yesterday, the Boston Criminal Lawyer Blog began its discussion about the Massachusetts murder case of Lauren Astley (hereinafter, the “Deceased”). The gentleman accused of the crime(s) is 18-year-old Nathaniel Fujita (hereinafter, the “Defendant”)

We looked at the Woburn bail hearing which took place, including the prosecutor’s representations as to what she believed the evidence in the case would show. She read some text messages allegedly between the Decased and the Defendant. She interspersed them with what as going on behind the scenes, such as the Deceased’s arrival at the Defendant’s home, the Deceased’s desire to save their friendship (in light of their recent romantic breakup) and the like.

I mentioned that it was possible that all this material might actually not make it into the mix of evidence which might find itself before the jury during a trial.

Today, let’s discuss why.

Attorney Sam’s Take On Text Messages, Hearsay And Admissible Evidence
As we have discussed in the past, not all items that the world considers “facts” are admissible as evidence in a trial. Every jurisdiction has its own Rules of Evidence which controls what may and may not come into evidence…and when.

As any experienced trial attorney can tell you, the rules can be a bit confusing…unless one is used to dealing with them.

Hence the need for an experienced criminal defense attorney when you are facing criminal charges.
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August 7, 2011

Boston’s SJC Upholds Misleading Police Interrogations In Massachusetts Criminal Investigations

by Samuel Goldberg

This week in the Boston Criminal Lawyer Blog, we have touched upon various issues involving Massachusetts search and seizure. Since I started this daily blog, I have warned you that, when performing a criminal investigation, police officers are allowed to mislead and, indeed lie, to a suspect.

A short time ago, this was confirmed in a case entitled Commonwealth v. Tremblay.

In this case, Mark D. Tremblay (hereinafter the “Defendant”), owned a house next door to Mr. Harold Nelson , whose home was adjacent to a lake in Chelmsford. Mr. Nelson was the owner of a twenty-foot Bayliner boat. On April 27, 2002, the boat the boat erupted in flames. The fire caused extensive damage to the vessel, and investigators concluded that it had been intentionally set.

The Defendant became the prime suspect during the resulting arson investigation.
Naturally, the Defendant was questioned during the investigation. However, the Defendant made the typical mistake that would be fatal to his defense. He believed what the police wanted him to believe. They told him that the statements he was to give were “off the record”. Apparently mistaking the interrogation for a press interview, the Defendant made inculpatory statements.

The Defendant was indicted and brought to trial. His attorney brought a motion to suppress the statements, claiming that the statements were involuntary because they were made with the understanding that they were made “off the record”. The lower court disagreed. The Defendant was convicted.

The Defendant appealed his conviction and the Appeals Court agreed with the trial court. And, now, finally, the Supreme Judicial Court has agreed with both lower courts.

Seems to me the Defendant could have saved alot of time, money and trouble if he had simply read this daily blog.

Attorney Sam’s Take On Search And Seizure And Police Investigations

In the end, we turn to a jury or judge (usually a jury) to determine guilt or innocence. As an experienced Boston criminal lawyer, I can tell you that the system basically sees this as a “no harm, no foul” situation. In other words, if a defendant is found “not guilty”, then no harm has been done, right?
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July 13, 2011

Boston’s Top Judges Move To Close MA Courthouses And Limit Judges

by Samuel Goldberg

Massachusett’s top judges, the Supreme Judicial court, among others, (hereinafter, the “Judges”) are based in Boston. And they are not happy. Angered at the budget cuts approved Monday, they have urged Governor Deval Patrick to stop appointing new judges as they now already have to close 11 courthouses and lay off many employees.

In a strongly worded statement, the Judges say that said budget jeopardizes the right of every person, guaranteed by the Massachusetts Constitution, to swift justice.

“We make this request . . . with great reluctance and deep regret,” the Judges wrote. “The people of Massachusetts deserve better. But the fiscal jeopardy into which the operation of the Trial Court has been placed demands extraordinary action.”

The governor’s legal counsel, Mark Reilly, has issued a statement calling the Judges’ pronouncements “confusing at best.” He has rejected their request that the governor stop appointing judges.

“I do think we have a crisis,” Representative Eugene L. O’Flaherty, a Chelsea Democrat said. “I disagree with the solution that is proffered by the court.”

Michael W. Morrissey, a former state senator who became a prosecutor this year, believes that closing courthouses is short-sighted. He said moving criminal trials out of the Brookline court, for example, would endanger community programs that work closely with the court and with the local police.

“It isn’t just a case of appearing in court,” Morrissey said. “It’s the layers of support you have around you.”

Attorney Sam’s Take On Lack Of Justice…Swift Or Otherwise

As I prepared to write today’s blog, I happened upon some comments posted by readers of Boston.com. Naturally, this led to my adding my own two cents. Many of said commentators seemed to be of the opinion that the Judges are on the right track. In fact, they went a bit further. They suggested that all the courts get closed down because their perception is that these institutions of Justice accomplish nothing close to Justice.

Naturally, if you have no courts, you don’t have much need for judges.

You can scoff at the anger toward the criminal (and, I would imagine, civil) justice system. Of course, you can scoff at a lot of opinions and realities. One might argue, though, that simple blind criticism without any thought to realistic solutions is how we got in this mess in the first place.
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July 8, 2011

Boston Police Officer Allegedly Lies To Police Investigators And Faces No Criminal Charges

by Samuel Goldberg

South Bosotn’s Whitey Buldger’s new attorney, J.W. Carney, Jr., has been heard explaining to the media that the government has had 20 years to prepare his client’s case for trial and that he has had the matter for (at the time) 5 days. From Boston’s Federal District Court to school disciplinary hearings, we have discussed the existence of an unequal playing field facing you when the finger of accusation comes to call.

Let’s end the week with one more example, shall we?

The Boston Globe reports that it has obtained a police an Internal Affairs Division report about a police officer involved in what has been called one of the most notorious police brutality cases in the city’s history. The matter stems from a 2009 arrest in the North End. The officer, David C. Williams (hereinafter, the “Officer”) has been placed on paid administrative leave for lying during the department’s investigation into the incident.

In 1999, the Officer was fired from the force after being implicated in the racially charged 1995 beating of an undercover police officer. He was then reinstated with nearly $550,000 in back pay after a civil service arbitration in 2005.

In the instant matter, the Officer faces the possibility of losing his job under Police Commissioner Edward F. Davis’s nearly 19-month-old policy of dismissing officers who lie in the line of duty, to internal affairs investigators, or in court (aka what would be called “perjury” if a non-officer did it.

The Officer’s attorney insists his client told the truth about the 2009 North End arrest. “He’s absolutely testified honestly and truthfully about the incident that occurred,” his lawyer explains . “Any conflicts about the incident were the result of a fast and rapidly evolving incident.”

Do you find it odd that such claims are supposed to be believed when made on behalf of a police officer by his officer, yet not for the rest of you?

Anything wrong with that?

At any rate, the Officer is appealing the finding. A hearing is scheduled for later this month.

Attorney Sam’s Take On The On-Again/Off-Again Relationship Between Law Enforcement And The Truth

The relationship between police officers, or federal agents, and objective factual truth tends to be a bit tumultuous. Whether it is a good day or a bad day in said relationship, be assured that it is a different relationship than the law provides for you.

This case demonstrates this fact brilliantly.

For example, you would be prosecuted for perjury.
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July 7, 2011

A Boston Criminal Defense Attorney Discusses Whether You Need A Lawyer At A School Disciplinary Hearing

by Samuel Goldberg

Most Massachusetts schools are now closed for the summer. For some students, however, the ability to attend class ended long before the end of the school year. It is a problem that is not merely local, but national as well.

Take 15-year-old Nick S, for example. Nick was by all accounts a good kid. He was a Boy Scout and played on the football team at high school. Nick even did well in school and helped out at home by caring for his mother, Sandy, as she battled Lou Gehrig’s disease.

Then, one day Nick purchased one capsule of JWH-018, a then-legal compound that mimics the effects of marijuana at school. The school, having a strict policy against drugs, guns and campus crimes, found out about the purchase. Nick was questioned by authorities, admitted his wrongdoing and apologized.

You might think it would end there…or at least shortly thereafter. You would be wrong.

The school held a disciplinary hearing. Nick’s parents and his mother’s nurse accompanied Nick to it. Just them. That’s right, no attorney.

You see, a school administrator discouraged them from bringing an attorney. You know, much the same way police officers often do as they sit down to take your statement or invite you to a Massachusetts Clerk Magistrate’s Hearing. The administrator explained that bringing a lawyer would be unnecessarily adversarial.

Imagine their surprise when the hearing became an hour and a half of badgering and harassment. According to Nick’s dad, it was “adversarial to an extreme.”

“They were badgering him and impugning his integrity. It brought him to tears, had me in tears, my nurse in tears.” To say nothing of the effect on Nick’s seriously ill mother.

As a result of the hearing, Nick had to be transferred to another school.
He committed suicide six days after starting there.

Now, surrounded by pictures of his late young son, Nick’s dad is trying to make some sense of it all and why his son had to die. “I thought with Nick’s record, with this being a first-time infraction and with the fact he possessed something that they didn’t even know what it was, surely they couldn’t throw the book at him,” he says “I was warned that a lawyer would make the proceeding unnecessarily adversarial, so I didn’t pursue any legal advice at that time.”

Attorney Sam’s Take On Counsel And School Disciplinary Hearings

“Aw come on, Sam. I’m sorry about this tragedy and all, but that is a pretty extreme situation, isn’t it? I mean, how often does something like that happen?”

You would be surprised.

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July 6, 2011

South Boston’s Whitey Bulger, Casey Anthony And Innocence

by Samuel Goldberg

Blasphomy! Yet, I heard it myself on WBZ radio this morning!

Yesterday, the Casey Anthony jury in Florida shocked the nation, if not the world, by delivering a verdict of “Not Guilty” after her widely watched trial. Not guilty of killer her two-year-old daughter, Caylee. Not guilty of all the homicide counts. Guilty only of lying to investigators.

This may have surprised people…but that was not the unspeakable things to which I refer above.

The public is roaring “foul!” How could a jury listen to all the evidence as well as the law the judge told them and find the defendant not guilty of killing her daughter? After all, everybody else, who, incidently, did not have the jury’s vantage point, were convinced of her guilt! And they should know better, after all. They were mostly convinced of her guilt long before the jury was even sworn! Who are these Johnny-come-lately jurors to contridict general concensus?

Nope. Still not the misbegotten statements about which I speak.

The forbidden sentiments I heard on the radio were spoken by the prosecutor involved as well as an alternate juror in the case.

The DA said that he believed that the jury followed the evidence and the law! The alternate juror said he agreed with the verdict!

How dare they? People are comparing the verdict to the O.J. Simpson fiasco. Once again, according to uninvolved and comparatively uninformed public, the jury got it wrong. How dare the alternate juror and prosecutor suggest anything different?

To make matters worse, as everyone will tell you, the defendant may be set free after serving a mere 3 years in custody awaiting trial! How can that be the result simply because a silly little jury found her not guilty of homicide?

To add insult to injury, the defense attorney lashed out at the media after the verdict, saying, ” I hope that this is a lesson to those of you having indulged in media assassination for three years, bias, prejudice and incompetent talking heads saying what would be and how to be”.

Many believe that this criticism was aimed toward legal scholars like Nancy Grace in her television show.

Incidently, do you remember the last time there was a public outcry over a finding of “gulity“? How about the first time? Can you even think of more than one instance when that occurred?:

Attorney Sam’s Take On The Assumption Of Guilt

“Sam, weren’t you going to continue writing about Whitey Bulger and prosecutorial advantage in the courtroom today? Is there some connection between the cases, other than Whitey’s being arraigned in federal court today for alleged Massachusetts murders, about which we are unaware?”

There sure is. Those two cases and just about any other criminal matter.
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July 5, 2011

South Boston’s Whitey Bulger Faces Homicide Charges And FliesThe Unfriendly Skies

by Samuel Goldberg

You know, when addressing to things like the long-sought capture of alleged mob kingpin Whitey Bulger, one really has to laugh sometimes at what captures the media’s attention.

As you may recall, last week was a big one for Whitey (hereinafter, the “Defendant”), He had just been captured after evading various state and federal law enforcement agencies, and their outstanding warrants, for years. The Defendant was wanted for a host of crimes including various Massachusetts murders, federal white collar crimes and…well, you name it. He was apprehended out of state with his his wife, Catherine Elizabeth Greig, a great deal of money and, allegedly, a substantial collection of firearms. He was brought back to South Boston’s federal court, where two significant legal issues quickly presented themselves.

The first issue was that of counsel. We discussed it a couple of times in this blog last week, but, suffice to say, the Defendant took the position that, since the government had taken all his money upon his capture, he could not afford his own experienced criminal defense attorney. The government sought to break new legal ground by weighing into the issue, claiming that publically funded counsel should not be provided because law enforcement believed that the Defendant had other access to money…such as his family and friends.

Prosecutors also claimed that the Defendant must have money hidden elsewhere and so he should use that. What they did not mention of course, was that they were hoping the Defendant would disclose said alleged funds so that they could grab that money as well.

And so it was that the court scheduled hearings on that mind-bending legal conundrum and a temporary attorney (hereinafter, “Substitute Counsel” was appointed in the meantime. Said attorney would deal with the issue of counsel as well as the new motion brought forth by the government. The new motion was to dismiss the earlier charges against the Defendant (the ones that allegedly sent him fleeing the Commonwealth in the first place) and simply go forward on the later indictments which included several charges of murder.

Well, the week brought us two days of hearings for the Defendant. As for the dismissal, the government won. This was really no surprise, as we will get to tomorrow. The Defendant, however, did get his court appointed attorney. Frankly, he hit the legal jackpot in doing so, receiving the aid of Attorney J. W. Carney, Jr., an attorney with whom I am acquainted and respect greatly.

The funny part is that of the various issues which have been, and will be, involved in the Defendant’s prosecution, none seemed to be the issue which primarily concerned everyone as the week came to a close. Instead, it was the issue of transportation which seemed to be the main concern.

You see, at the request of the United States Marshals, the Defendant got a free helicopter ride.

To bring him to court from his holding cell, the Defendant was brought on board a US Coast Guard Jayhawk MH-60 helicopter and then driven in a convoy to US District Court in South Boston for his Wednesday hearings. He was then flown back to jail on the Coast Guard chopper.

Various people were enraged. Family members of those allegedly killed by the Defendant complained that they had never had such a helicopter ride. Of course, presumably, they had never spent such time in chains as the Defendant is, either.

Indeed, radio talk show hosts, closely monitoring these critical issues opined at the costs associated, and so charged to the public, were in the high thousands of dollars. The last word on the number is that the Coast Guard and US Marshals are claiming that the transport cost only $1,500.

Even politicians weighed in on this seemingly critical matter. United States Senator Scott Brown, for example, wrote a letter to the head of the US Marshals Service, pointing to the Defendant’s helicopter ride and the marshals’ use of a “private luxury jet’ to bring him back from California, where he was arrested last week. “I agreed with U.S. Attorney Carmen Ortiz when she said Whitey Bulger would be ‘treated like every other defendant.’ So far, that does not seem to be the case,” he wrote.

Maybe they should have just made him walk the many miles like in the good old days, pulled by horses should he slow down.

Attorney Sam’s Take On Courthouse Security, Surviving Court And Money

Before you imagine the Defendant sitting in his window seat, happily enjoying his helicopter ride as officials point out sites of interest as he licks his ice cream cone and holds a balloon in his other free hand, you may want to venture back to reality.
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