Criminal Law

March 28, 2018

Is Failing to Report Child Abuse a Criminal Offense?

Child abuse is a crime, there is no question about that. But what about the failure to report child abuse? If you suspect that a child has been abused, do you have to speak up? Is failing to do so a crime?

It depends.

Mandated Reporters

Certain people are required to report child abuse due to their profession. In MA, these people are called Mandated Reporters. Individuals designated as mandated reporters include:

Teachers and other school personnel
Social workers
Doctors, nurses and other medical personnel
Counselors and other mental health personnel
Child care providers
Foster parents
Clergy
Medical examiners
Police and other law enforcement

If you are a mandated reporter and you fail to report child abuse, you may be charged with a misdemeanor and face a fine of up to $1,000. A MA criminal defense attorney can help you determine how to proceed if you’ve been charged with a crime.

What if I’m Not a Mandated Reporter?

In MA, as in most states, failure to report child abuse is not specifically charged as a crime. However, every case is unique. In the Larry Nassar sexual abuse scandal, for example, victims have called for the criminal punishment of the individuals who failed to report his abuse of hundreds of young girls and at least one boy.

In Michigan—where Nassar abused his victims—state legislators have proposed several bills that would increase penalties for failure to report child abuse from a misdemeanor offense to a felony with fines of up to $5,000.

But this topic begs the question – why wouldn’t you report child abuse? If you suspect that a child is being abused or neglected, reporting that mistreatment is the right thing to do. Fortunately in MA, as in most states, you can file an anonymous report. A Boston criminal defense lawyer can help you protect your rights if you’ve been charged with a crime.

What is Considered Child Abuse?

There is a lot of gray area when it comes to child abuse and neglect. For example, in 2014 a Florida mom was charged with felony child neglect for letting her seven-year-old child walk to a nearby park by himself. However, not all cases are as ambiguous. Some types of child abuse, including sexual or physical abuse and depriving a child of food and water, should be reported immediately.

In the United States, approximately four children die from child abuse or neglect every day. Most are under the age of four. Child abuse is often associated with a medical or emotional disorder, such as alcohol abuse, depression and drug addiction. In many cases, the abuser was abused as a child.

In MA, child abuse is defined as “the non-accidental commission of any act by a caretaker upon a child under age 18 which causes, or creates a substantial risk of, physical or emotional injury; or constitutes a sexual offense under the laws of the Commonwealth; or any sexual contact between a parent/guardian/caretaker and a child under 18.”

Child abuse, which can occur both at home and in other environments, includes:

exposing a child to domestic violence;
having a baby that is born with an addiction to narcotics; and
mistreatment of a physical, sexual or emotional nature.

Child neglect, on the other hand, is the failure of a parent or care giver to meet the child’s basic needs for food, shelter, clothing, supervision and other emotional needs. Continue reading

March 28, 2018

Is It Possible To Get My Bail Lowered?

by Altman & Altman

Bail is a type of payment—or the pledge to make a payment—in exchange for being released from custody. The defendant is temporarily released, but agrees to return to court when ordered to do so. As long as the defendant shows up at court as agreed, bail money is returned once the trial has concluded. If, however, the defendant does not return to court, the bail money is forfeited and criminal charges for failure to appear may apply.

Bail is not required in all cases. For minor offenses, the defendant may be summoned to court without the need to post bail. Basically, bail is an incentive to appear in court. If the prosecution is concerned that the defendant is a flight risk, bail will almost certainly be set. Further, bail amounts generally reflect the severity of the crime. A Boston criminal defense attorney can help you determine how to proceed if you have been charged with a crime.

The bail system is increasingly under scrutiny because it may prevent innocent people from getting out of jail due to their inability to afford bail. In fact, the Department of Justice has remarked that it is unconstitutional for poor people to be imprisoned simply because they cannot afford their bail. That being said, bail may also prevent dangerous criminals from being released into the general public as they await trial. In addition to these two extremes, there exists everything in between. If you think your bail is too high, can you get a judge to lower it?

How are Bail Amounts Set?

In MA, the bail magistrate sets bail. To do this, the bail magistrate considers the type and severity of the crime, along with the potential sentence the defendant is facing. The following factors will also be considered when setting bail:

Is the defendant a flight risk?
Does the defendant have a criminal record?
Has the defendant failed to show up for court in the past?
Is the defendant on probation or parole?
Does the defendant have ties to the community?
Is the defendant employed?
Does the case involve domestic violence, and if so, would the defendant’s release put the victim at risk?

Of course, many of the above factors are subjective. For example, your bail could be set high because you don’t have ties to the community and you are currently unemployed. Two strikes. If, however, you can show that you are actively seeking employment, and you moved to this community because the climate is favorable for a heath condition from which you suffer, these strikes may become less significant in the judge’s eyes. If you can provide evidence to convince the judge that you are not a flight risk, you may be able to see a reduction in bail.

You may also be able to get some relief in the form of the Eighth Amendment to the Constitution, which prohibits “excessive bail.” If you can show that the amount of your bail is excessive, based on what you can afford, the judge may lower it. Once the initial bail is set, you may have to request a second hearing to challenge the amount. A MA defense lawyer can help you protect your rights if you have been charged with a criminal offense. Continue reading

March 23, 2018

Are There Any Exceptions to the Miranda Rule?

by Altman & Altman

The Miranda rule, more commonly known as the “right to remain silent,” goes as follows:

You have the right to remain silent;

If you do say anything, what you say can be used against you in a court of law;

You have the right to consult with a lawyer and have that lawyer present during any questioning;

If you cannot afford a lawyer, one will be appointed for you if you so desire.

The rule was named for Miranda v. Arizona, a case in which the defendant provided incriminating information to the prosecution because he was unaware of his right to remain silent. Since this landmark case occurred decades ago, law enforcement must inform people of their Miranda right when they are placed under arrest.

There are, however, four exceptions to the Miranda rule. They are:

Before the Arrest

The Miranda rule applies once the individual is taken into custody (arrested), not before. However, anything you say prior to your arrest can still be used against you. That being said, police are not supposed to begin interrogations until you have been taken into custody. So, unless you are just nervously spouting off unsolicited information, you shouldn’t have anything to worry about. At this stage, the only information you are required to provide is of the identifying sort, such as your name, address and date of birth. If police ask you for additional information without first reading you the Miranda warning, they could be in violation of your constitutional rights. A MA criminal defense attorney can help you determine how to proceed if you’ve been charged with any type of crime.

Private Citizens

Not everyone involved in an arrest is subject to the Miranda rule. It applies to government and “state agents,” such as prosecutors and police officers, but what about private citizens, undercover agents and jailhouse informants? According to a Supreme Court ruling, even if these individuals are paid by the government to perform a duty, they are not subject to the Miranda rule.

Imminent Danger

If imminent danger to the public prevents an officer(s) from reading the Miranda rights before custodial interrogation, a statement obtained during the course of that interrogation may, under certain circumstances, still be used against the defendant. Such a situation occurred during the investigation into the Boston Marathon bombing, when the suspect was interrogated before receiving his Miranda rights. When a suspected terrorist attack or other imminent threat creates a sense of urgency, responses obtained without Miranda rights may, in comes cases, still be admissible in court.

Waiving Your Rights

In addition to the above situations, you can also waive your Miranda rights. Not surprisingly, this is not a recommended tactic, especially without first having consulted with your attorney. A Boston criminal defense attorney can help you determine how to proceed if you’ve been charged with any type of crime. Continue reading

March 16, 2018

Were You Arrested for Possessing a GHB, Ketamine, Special K ? You May Be Facing these Penalties

by Altman & Altman

The crime of rape, whether committed by someone the victim knows and trusts or a complete stranger, often involves alcohol or other drugs. Women who have had too much to drink are particularly vulnerable to sexual assault and rape, including date rape. Although certain drugs come to mind when the term “date rape drugs” is used, any drug can increase the risk of sexual assault.

That being said, there are three drugs that are commonly referred to as date rape drugs – Ketamine, GHB and Rohypnol (often called “roofies”). Simply being in possession of one of these drugs won’t necessarily carry a stiffer penalty than being in possession of a non-date rape drug of the same class. If, however, you committed a sexual assault while in possession of the drug, or the prosecution believes you intended to do so, you may be facing some serious time behind bars.

What is Rohypnol?

Commonly referred to as roofies, Rohypnol is a prescription drug used to treat severe insomnia. In addition to being a powerful muscle relaxer and sedative, the drug can also induce amnesia. Even a very small amount of the drug can have these effects, which generally last for up to 12 hours. Although not approved for use in the U.S., Rohypnol is available in Mexico and Europe.

Although most commonly associated with date rape, Rohypnol is also a popular recreational drug. The same is true of Ketamine (often called Special K) and GHB, both of which produce similar effects to Rohypnol. A Boston drug crimes defense attorney can help you protect your rights if you’ve been charged with drug possession.

Penalties for Possession of a Date Rape Drug

As with all criminal offenses, the punishment is based on multiple factors, including prior criminal history, the severity of the crime and the unique circumstances of the case. In MA, you may be facing the following penalties if you are found in possession of Rohypnol.

Simple possession: Up to three years in prison and a minimum fine of $5,000.
Possession with intent to distribute: A minimum of 10 years in prison, up to life, and a fine of up to $4 million. If the crime resulted in someone’s death, the minimum sentence is increased to 20 years.

Although Rohypnol is classified as a Schedule IV drug (low risk of abuse), it is punished as a Schedule I drug. Other Schedule I drugs include heroin, MDMA (ecstasy) and LSD. A MA drug crimes defense lawyer can help you determine how to proceed if you’ve been charged with any type of drug crime.

The penalties above pertain to possession, not drugging a person with the intent to engage in sexual intercourse. If you used Rohypnol, GHB, Ketamine or any other drug to sexually assault another person, you may be facing 10 years imprisonment with the possibility of life in prison. Continue reading

March 14, 2018

Martin Shkreli Sentenced to 7 Years in Prison for Securities Fraud and Conspiracy

by Altman & Altman

Martin Shkreli gained notoriety in 2016 by spiking the price of a life-saving HIV drug by about 5,000 percent. Dubbed ‘Pharma Bro,’ he later found himself in hot water for committing investment fraud. Although his lawyer was pushing for less than 18 months, Shkreli was recently sentenced to seven years in prison. During his sentencing, ‘Pharma Bro’ seemed much less cocky than he has in the past.

When Shkreli first learned of the criminal charges against him, he predicted that he’d never do any time in jail. But his prediction was quickly proven wrong. Unfortunately for him, his bail was immediately revoked after he jokingly offered money to any person who could obtain a lock of hair from then-presidential candidate Hillary Clinton.

Shkreli, who was convicted of securities fraud and conspiracy on August 5, 2017, appeared more humble in court on Friday, as he admitted to his many mistakes. In fact, the 34-year-old broke into tears, pleading for leniency from the judge.

February 16, 2018

“IF I AM ARRESTED IN MASSACHUSETTS, WILL MY NAME BE IN THE PAPER?”

by Samuel Goldberg

Yesterday, we discussed an item posted on Boston.com , about a driver who was busy videotaping his car hit 100-miles-an-hour when he was stopped by law enforcement. The unnamed driver, hereinafter, the “Defendant”, was apparently not arrested although he did give a full confession.

The story made me a little curious and so I tried to find an update to it, since the event actually took place in 2013. I was unable to find an update. I was also not able to find his name.

This reminded me of another issue that often surprises people. The question of when a criminal defendant’s name is or is not released to the public.

Let’s look at that question.

Attorney Sam’s Take On Public Disclosure Of Criminal Defendant’s Identities, Addresses And Allegations

In the United States, there is great freedom of the press. On the other hand, a criminal defendant also has a great many rights…at least theoretically.

After all, a criminal defendant, unless and until convicted, is assumed innocent.

On the other hand, as I have opined in the past, the defendant may be presumed innocent…but he is assumed guilty by most folks both in and out of the system.

“So how does it play out?”

In most cases, the media gets to print out the news of the case. This means printing the name, age and address at the very least. Routinely, the local papers print this information when anyone is arrested. Sometimes even if the case does not result in an actual arrest.

Many cases are similarly reported when the case is arraigned. Clerks and law enforcement regularly give this information to the press. In fact, they often know about an arraignment or some other court date before even the Parties know.

One exception to this is juveniles. Juvenile defendants’ are not published in the paper. It may be that the driver in the story was a juvenile.

Sometimes, the media will figure that a particular case is of particular interest. In such situations, reporters, and sometimes cameras, will show up in and out of the courtroom to film and report on what is going on. In such cases, this will follow the case until completion.

Usually, I find that there is particular interest in the beginning of a case as well as when the case ends…especially if it ends with a conviction.

“But, Sam, can’t that effect how the case is handled?”

February 6, 2018

When is Social Media Harassment a Crime?

by Altman & Altman

Harassment, which occurs when a person intentionally annoys, threatens or provokes another person – or causes them to feel emotional distress – can take many forms. Workplace sexual harassment, for example, may include everything from making inappropriate jokes of a sexual nature in the presence of a co-worker to outright sexual assault. Whether or not harassment is a crime, however, depends on multiple factors. More serious types of harassment, such as stalking and hate crimes, are generally considered to be criminal in nature. But what about social media harassment?

Harassment doesn’t always occur in the physical realm. In fact, more and more often, people are using the anonymity of the internet to wreak havoc on their victims. From making online threats to cyberbullying, online harassment via email and social media networks has become disturbingly common. As with all types of harassment, however, the punishment – or lack thereof – depends more on the type of harassment than where the harassment takes place. For example, a death threat is a criminal form of harassment whether it’s made in person or on social media, whereas calling someone fat in person or online is cruel, but probably not criminal.

Misdemeanor or Felony?

Criminal harassment can be a misdemeanor or a felony. The distinction between the two is often based on whether the harassment was a first or subsequent offense. But the type of harassment is also a factor; a threat that makes a person fear for her safety may be a misdemeanor, but threatening to kill someone is more likely to be considered a felony. A Boston personal injury lawyer can help you determine how to proceed if you’ve been the victim of social media harassment.

In recent years, legislators have begun to respond to the impact that cyberbullying, including social media harassment, can have on children and young adults of all ages. Depression, suicide, and even school shootings have been some of the most tragic consequences. As such, there has been a nationwide trend toward increased accountability for all types of bullying, with a focus on “electronic harassment,” including social media bullying and threats.

Penalties for Cyberbullying

Cyberbullying constitutes harassment if it involves repeated conduct of an alarming nature that is directed at a specific victim. If the actions would cause a reasonable person to feel distressed, the harassment may lead to criminal penalties. In MA, harassment – online or otherwise – can carry a fine of up to $1,000 and up to two-and-a-half years in jail. Second and subsequent offenses can land the individual in prison for up to 10 years.

Cyberbullying is a serious issue. The lasting emotional pain and fear for one’s safety can be devastating. A MA injury lawyer can help you recover damages if your child has been the victim of social media harassment or any type of cyberbullying.

Beyond fines and jail time, a person convicted of online harassment may be required to undergo psychological counseling. Further, he or she will likely be forbidden from having any type of contact with the victim. Violating such an order will almost certainly lead to additional charges.

Most states, including MA, have implemented anti-bullying policies in their schools. Students who harass another student in school or online may be subject to non-criminal penalties, including school suspension or a ban on school sports. And victims of cyberbullying may be able to seek compensation in civil court. Continue reading

January 30, 2018

“I AM A CRIME VICTIM. CAN A MASSACHUSETTS CRIMINAL DEFENSE LAWYER HELP ME?”

by Samuel Goldberg

Often, I receive calls from victims of crimes.

Yes, I know that I generally call them “complainants” because I am a criminal defense attorney. I do know, however, that crimes do indeed happen and, when they do, it is usually a victim that they happen to.

Besides, as far as I am concerned, if my client tells me that he or she is a victim of a crime, I can hardly disagree. After all, I was not there at the event. If I were, i would be a witness. But that is a whole other subject.

Does it surprise you that I am sometimes hired by victims of crimes to help them through the criminal justice system?

It shouldn’t. For the uninitiated, the criminal justice system is a foreign and scary land.

January 25, 2018

Charged with Arson in Massachusetts? What you Need to Know.

by Altman & Altman

Arson is a criminal offense that occurs when a person intentionally and maliciously sets fire to another’s property. The term ‘property’ can refer to a house or building, but it also includes motor vehicles, and even open land.

Fires caused by arson result in hundreds of deaths and thousands of injuries annually. They destroy buildings, outdoor areas, family homes and vehicles such as cars and boats. In fact, the burning of one’s own property can also be considered arson, if done for an improper purpose. This is common when a person wishes to collect money by making a fraudulent homeowner’s insurance claim. In Massachusetts, arson is a felony.

It is estimated that the crime of arson costs about $1.4 billion in property damage every year. Statistics show that arsonists most often target poor areas and abandoned buildings. If you have been charged with arson, you may be facing serious penalties and significant time behind bars. A Boston criminal defense attorney can help you determine how to proceed.

Arson prosecutions

In order to convict someone of arson in MA, the prosecution must prove beyond a reasonable doubt the following elements:

The burned property had a value exceeding twenty-five ($25) dollars;
The property – that belonged to another person – involved real estate, or personal property;
The accused intended to burn the property, or caused the property to be burned, intentionally and not merely by accident.
The accused burned the property maliciously, meaning that there was an unlawful motive behind the act, without lawful excuse.

The hardest element for the prosecution to prove in an arson case is that a defendant was “willful and malicious” when he or she set fire to the property, or caused it to be burned. This is good to know if you are currently facing arson charges; the prosecution often struggles when trying to establish the defendant’s state of mind at the time the crime was committed (i.e. it may be extremely difficult, for example, to prove that a person using fireworks intended to burn his neighbor’s house to the ground). This is why it is so important to have knowledgeable, experienced legal counsel if you are facing arson charges. A MA defense attorney can help you protect your rights if you’ve been charged with arson.

Arson Penalties

The crime of arson carries some serious penalties. As with most crimes, however, the penalties and punishment depend on multiple factors, including prior criminal history, aggravating circumstances, and the value of the damaged property / injuries. If you are convicted of arson in Massachusetts, you may be facing the following penalties:

If you acted “wantonly,” (as opposed to maliciously) – a maximum of two-and-a-half years in jail, and a fine of $1,500, or three times the value of the damage, whichever is greater;
If your actions were willful and malicious – up to 10 years in prison, and fines of $3,000 or three times the amount of the damage caused;
Restitution (financial payment to victims intended to compensate for damages suffered);
Probation sentence of at least 12 months, and up to five years.

January 22, 2018

The Difference Between a Bench Warrant and an Arrest Warrant in Massachusetts

by Altman & Altman

None of us really wants to be on the other side of the justice system. But when we find ourselves in such a position, it is essential that we face the problem head on, and deal with it immediately. Unfortunately, warrants do not just disappear. Avoiding or postponing the inevitable will almost certainly result in more severe consequences.

In criminal cases, failure to appear at a scheduled court date may result in the judge issuing a warrant for your arrest. If this happens, you will need to act immediately; police may take you into custody at any time.

Bench Warrants vs. Arrest Warrants

Warrants are issued for a multitude of reasons. In MA, there are two primary types of warrants – bench warrants and arrest warrants. The differences between the two are explained below.

A bench warrant may be issued if you fail to appear for a scheduled court date. Police have the authority to take you into custody if you have an outstanding bench warrant. In addition to failure to appear in court, these warrants are issued for violating probation, and failure to pay child support or complete community service. If police take you into custody on a bench warrant, you could end up stuck in jail until the court schedules a hearing on your case. You will also likely have to pay court fees.

When a bench warrant is issued against you, police may or may not actively seek you out. For this reason, people often mistakenly assume that the problem has miraculously disappeared. But even a minor traffic stop years later can result in police running your name, seeing the warrant, and placing you under arrest.

An arrest warrant is issued when a police officer provides substantial evidence that you have committed a criminal offense. If a judge issues the warrant, police are authorized to arrest you at any time. One main difference between bench warrants and arrest warrants is that police will actively seek you out when an arrest warrant has been issued. If taken into custody, you could be held in jail without bail until the court schedules a hearing on your case. A Boston criminal defense attorney can help you determine how to proceed if you are facing a bench or arrest warrant.

Failure to Appear in Court

In addition to the issuance of a bench warrant, failure to appear in court may also carry its own penalties. In Massachusetts, the penalties for failing to appear in court may include:

Failure to appear on a misdemeanor proceeding: Up to one year in jail and fines up to $10,000
Failure to appear on a felony proceeding: Up to two-and-a-half years in jail and fines up to $50,000

You can avoid a warrant and the penalties above by dealing with the problem proactively and arriving on time to all scheduled court dates. If you accidentally miss a court hearing, however, a skilled Boston defense attorney can help you protect your rights. Continue reading