Articles Posted in Criminal Law

Let the games begin! As local as Boston and as distant as the globe will reach! The adventure of pointing fingers and looking for bodies to blame, as expected, has begun. Defense Attorneys for everybody! Everybody pays!

Bernard Madoff (hereinafter, the “Defendant”), talking in 2001 about what fed the Internet bubble said “You had a lot of novice investors who got into the market looking for easy money, without any regard to the fundamentals. These stocks were running on fumes.”

You would almost think that the Defendant did not have a lot of faith in investors, regulatory agencies such as the Security Exchange Commission and the market in general, wouldn’t you?

Well, I guess now we know why. He, himself, was apparently engaged in a huge fraud and getting away with it.

Unless you have been living under a rock for the past couple of weeks, you have heard that the Defendant is accused of devestated the international economic world, when it was already reeling, through what is alleged to be a fifty billion dollar scam, the largest such fraud in history. For more background information, you may want to check out Tuesday’s blog, entitled, Boston Is Hit, Along With The Rest Of The Country, By Financial Guru And His Use Of A Boston-Originated Method Of Fraud (The Madoff Nightmare Part One.

The question of what to do next appears to be a nasty little thing for which there is no clear answer. Therefore, filling that vacuum, we move to other, and perhaps more lucrative, questions. The questions include such topics as how any scam of this size could remain a secret for so long, who was involved, who else is out there doing similar things and, of course, who got off easy.

In short, the questions are “Who else can we blame?” and perhaps more importantly, “Who else can help finance the cleanup?”

Hey, it’s what we do.
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This holiday season, so many religions and traditions call for gift-giving. Sometimes, those gifts are a big surprise. One gentleman from out of state has been given a surprise gift from the government because of the gifts he has given throughout the country, including the Boston area, big time. The gift he received is the need of a criminal defense attorney. The wide-spread gift he gave? Well, that would be the gift of financial ruin.

You already know his name. It is Bernard Madoff (hereinafter, the “Defendant”). He is a 70-year-old former chairman of the Nasdaq Stock Market, who has now been awarded the country’s bracelets of shame. Last Thursday, he taken out of his house by United States marshals and charged with securities fraud by federal authorities.

Ironically, the Defendant’s gift of restraints and forced government housing was connected to charity and gift work throughout the nation. His actions have apparently brought about the destruction and near-destruction of various charities and philanthropies throughout the country. That’s right….that means fewer gifts for the under-privileged. It also means the same thing for victims of every financial level because they all have one thing in common now. They have been victims of white collar crime in a big way to the tune of approximately fifty billion dollars.

Such a loss is kind of hard to swallow, especially in such difficult economic times. Actually, it was the market’s recent crash that finally brought the Defendant’s alleged $50 billion Ponzi scheme to light. The Defendant himself is said to have “come clean”. He has admitted that his money management operations were “all just one big lie” and “a giant Ponzi scheme.” .

You may be unfamilier with the term “Ponzi scheme”. For those so uninitiated, it is a fraudulent investment operation that involves paying abnormally high profits to investors out of the money paid in by subsequent investors, rather than from net revenues generated by any real business. It is named after Charles Ponzi who apparently introduced the scheme to the United States in the early 1900’s from…of all places…Boston. Because the invested capital is not earning a sufficient return on its own, Ponzi schemes usually eventually collapse under their own weight.

So much for a “I never thought it could happen…” , or, perhaps more formally, “Whodathunkit” defense.
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Good Monday morning to you, Boston and environs. I hope you are free, recovered from last week’s ice storms and ready to begin a new week. Hopefully you are greeting another week without the need for a criminal defense attorney.

Yet.

Unfortunately, there will be no “regular” blog today. This is primarily because of the story I am basing a rather longer-than-usual blog on that is simply not finished by the time I need to be in court today.

Today is Thanksgiving. While the daily criminal law blog goes on, this is not a day o concentrate on the problems of criminal justice. Instead, let’s gain some brief optimistic perspective.

From whence have we come?

Some of the particular crimes and punishments make today’s laws look pretty liberal. Since the criminal justice system was a part of the existing religious order of the community, all offenses were against God and society. Laws in the Puritan regions were filled with religious messages. The 1648 Laws and Liberties of Massachusetts, the penal code, for example, often quoted biblical passages.

For example, you think the laws regarding disorderly conduct, trespass and such are overly burdensome? Well, Colonists considered lying, idleness (not working), drunkenness and even general bad behavior as crime. Playing certain games in the Puritan colonies, such as shuffleboard or cards, was a crime. Forget about considering prostitution or sexual assault. Merely flirting was a crime.

The courts used shame, scorn, and humiliation to teach lessons for misbehavior. More severe crimes led to whipping and placing the guilty in wooden frames that had holes for heads and hands, called the pillory.
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According to critics, the state of Massachusetts is one of 25 US States with no laws dealing with the preservation of key DNA evidence. It is also one of seven states that do not automatically allow people convicted of crimes the right to submit their DNA to exonerate themselves from crimes they did not commit.

In Massachusetts, the rules that preside over DNA preservation fall under the Code of Massachusetts Regulations. According to Massachusetts State Police, there are some 16,000 DNA samples at a Sudbury facility. state police spokesperson David Procopio says law enforcement authorities never get rid of DNA samples obtained from victims and crime scenes unless they are told to do so by the district attorney in charge of the case.

Last week, Keith Amato, a Cape Cod man who has been trying to retrieve the DNA sample he gave to police for a murder investigation, won the right to get his sample back. The investigation dealt with the 2002 stabbing death of writer Christa Worthington.

In 2006, Christopher McCowen was convicted of her murder. In June of this year, the ACLU of Massachusetts filed a lawsuit accusing state law enforcement officers of failing to keep their promise that they would destroy Amato’s DNA evidence if he was ruled out as a murder suspect.

According to ACLU Legal Director John Reinstein, the state lacks an “authority for maintaining these rule-out samples.” Cape and Islands District Attorney Michael O’Keefe, however, said he authorized that the sample, in addition to all other DNA samples obtained in the case, be returned or destroyed.

Some people have questioned whether the collection of so many DNA samples for the Worthington murder investigation was intrusive.

Critics: State fails DNA test, BostonHerald.com, September 1, 2008
Cape Cod man gets DNA sample back, BostonHerald.com, August 28, 2008
ACLU sues over DNA sample, Boston.com, June 20, 2008

Related Web Resources:

Frontline: The Case for Innocence, PBS
Understanding DNA Evidence: A Guide for Victim Service Providers, US Department of Justice Continue reading

Investigated fire chief drops disability claim

Friday’s Today’s Boston Globe reports that a Boston fire chief who has been on injured leave for nearly two years awaiting approval of his disability retirement claim suddenly withdrew his application this week after two witnesses recanted their initial statements about his injury and the recent disappearance of the his medical file from department headquarters. Federal investigators were pursuing an inquiry into dozens of questionable injury claims, including his.

James J. Famolare was the Boston Fire Department’s district chief of administration when he reported injuring his back while moving a box at fire headquarters in June 2006, records show. Famolare filed an application for disability retirement four months later, and the two witnesses signed it, according to officials. However, when fire officials reviewing Famolare’s case in recent weeks asked the witnesses what they saw, they said they did not see anything but merely placed their signatures on a narrative the chief had written and asked them to endorse, said the officials, who were briefed on the case and spoke on condition of anonymity. The firefighters both said they could no longer vouch for Famolare and signed new written statements saying they did not witness the injury, the public officials briefed on the case said. A Fire Department employee who spoke with one of the witnesses this week said the firefighter signed the application because Famolare asked him to. “He said, ‘You’re not going to say no when a chief asks you to do something,’ ” said the employee, who spoke on condition of anonymity for fear of retribution from superiors. “He had to recant, he had to change it, because he didn’t physically see it.”

In Massachusetts on Friday, East Boston District Court Judge Paul Mahoney refused to drop the possession of a hoax device charge against Star Simpson, the 19-year-old MIT student who wore a strapped circuit board to her chest and walked into Logan International Airport last year.

Simpson’s trial begins on May 23, and she plans to take the stand. Simpson is expected to say that the week prior to her arrest, she wore the blinking circuit board around campus, which she considered a “piece of art” that she wanted to show off.

On September 21, 2007, she wore the battery-operated light display to the airport and was planning to pick up her boyfriend at Logan’s Terminal C. A number of employees fled the premise because they thought the device was a bomb. State police arrested her at gunpoint.

The Explosive Ordinance Disposal unit examined the device and determined that it was not an explosive.

Other MIT students have said that wearing this kind of device on campus is not uncommon. Called a “breadboard,” it is worn by students that are making something electronic.

Simpson has called herself a student, artist, and engineer.

Her criminal defense team says that the charge violates her freedom of speech and that she never planned on frightening anyone by wearing the blinking circuit.

The General Laws of Massachusetts
Chapter 266: CRIMES AGAINST PROPERTY Section 102A1/2. Possession, transportation, use or placement of hoax devices; penalty; law enforcement or public safety officer exemption
Section 102A1/2. (a) Whoever possesses, transports, uses or places or causes another to knowingly or unknowingly possess, transport, use or place any hoax device or hoax substance with the intent to cause anxiety, unrest, fear or personal discomfort to any person or group of persons shall be punished by imprisonment in a house of correction for not more than two and one-half years or by imprisonment in the state prison for not more than five years or by a fine of not more than $5,000, or by both such fine and imprisonment.

Simpson’s criminal defense attorney had sought to have the charge against her dismissed because he said the statute is too vague. Her case has been continued a number of times.

Judge refuses to drop hoax charge against MIT student, Boston.com, March 21, 2008
Simpson asks charge to be dropped, The Daily Free Press, November 6, 2007
Student Says She Was Wearing ‘Art,’ Not Bomb, TheBostonChannel.com, September 21, 2007

Related Web Resources:

The General Laws of Massachusetts

Breadboard
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The city of Boston is reporting a lower crime rate for 2007 than in 2006. The Boston Police Department offers the following statistics comparing the number of crimes that occurred from January 1 – December 23, 2007:

Vehicle theft and attempted vehicle theft: 34,008 in 2006; 354 in 2007.
Larceny and attempted larceny: 16,405 in 2006; 16,782 in 2007.
Burglary and attempted burglary: 3,994 in 2006; 3,708 in 2007,
Aggravated assault: 4,351 in 2006; 4,166 in 2007.
Robbery and attempted robbery: 2,657 in 2006; 2,200 in 2007,
Rape and attempted rape: 285 in 2006; 267 in 2007,
Firearm-related arrests: 718 in 2006; 657 in 2007.
Nonfatal shootings: 321 in 2006; 271 in 2007.
Murder by firearm: 52 in 2006; 51 in 2007.
Homicide: 73 in 2006; 66 in 2007.

Detectives in Boston made arrests in 25 of the 66 homicides that occurred last year. There were 1,230 less reported crimes in 2007 than in 2006.

The type of crime where there were more incidents last year than the year prior is larceny-due in large part to a 300% increase in stolen GPS systems. More than 1,000 GPS systems were stolen last year.

Also, four of the deadly shooting crime victims were juveniles under 14 years of age. There was only one shooting crime victim that young in 2006.

BPD Commissioner Edward F. Davis says he is confident the crime rate will go down further in 2008. Boston police are encouraging residents to drop the ‘stop snitching’ culture that exists.

In 2007, police received 612 anonymous crime tips and 476 text messages between June and December. Boston Police are working on setting up a cold case department that would focus on unsolved homicides.

2007 drop in crime buoys Hub leaders, Boston.com, January 1, 2008
City closes out year with fewer homicides, overall crime down, Boston Herald, January 1, 2008
Crime rate moves in right direction, Boston Herald, January 3, 2008
Boston’s crime statistics for 2006, 2007 compared, Boston Herald, January 1, 2007

Related Web Resources:

Police Department, City of Boston
Boston Crime, Universal Hub Continue reading

An FBI forensic test considered so faulty that the FBI no longer uses it may have caused juries to wrongfully convict hundreds of innocent people who are now serving prison time for crimes they did not commit.

The forensic test uses a science called bullet-lead analysis, which links bullets used to commit a crime to bullets belonging to the suspect. The theory is based on the premise that a batch of lead will always have a one-of-a-kind chemical makeup.

In 2004, the National Academy of Sciences determined that there were inconsistencies in the bullet manufacturing process that proved the science “unreliable and potentially misleading.” Decades worth of FBI testimony to jurors could well have been “misleading under federal rules of evidence.” There is therefore a good chance that faulty test results administered as evidence could have led to wrongful convictions.

The FBI stopped using this particular forensic test in 2005. The government, however, has held back from releasing the list of some 2,500 cases in which the analysis was used. Many of these cases involve homicide convictions.

“60 Minutes” and the Washington Post have identified over 12 cases in which a court either reversed the conviction or must now investigate whether innocent people were sent to prison.

The FBI says it will start notifying prosecutors of the possibility that people were wrongfully convicted. The two-to-four timeframe for appealing the convictions, however, is nearing an end.

Wrongful Convictions
123 people in the United States have been released from death row since 1973 after their convictions were overturned.

The Innocence Project, which has helped overturn about 100 death sentences with post-conviction evidence, cites some reasons that innocent people are wrongfully convicted of crimes they did not commit.

In a study involving 70 cases where guilty verdicts were overturned, the Innocence Project found that:

• More than 30 of these convictions were because of prosecutorial misconduct.
• More than 30 of these wrongful convictions involved police misconduct.
• False witness testimony affected the outcome of 15 cases.

FBI’s Forensic Test Full of Holes, Washington Post.com, November 18, 2007
Innocence and the Death Penalty

The Latest Statistics from the Innocence Project, Caught.net

Related Web Resources:

Innocence Project

Wrongful Murder Convictions in Massachusetts

Federal Bureau of Investigation
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Massachusetts police chiefs says the cities of Lowell and Lawrence are among the cities in the state that experienced a slight decrease in crime. Woburn and Arlington saw the biggest increase in total crimes committed from January to June 2007.

The group, made up of Massachusetts police chiefs, says most municipalities with 40,000 residents or more saw a 2% increase in crime during this six month period. Arlington, however, saw a 38% increase in crime with 354 crimes committed from January to June 2007. 256 crimes were committed during the same time period in 2006).

Crimes in Boston decreased by 1%. Brookline and Brockton experienced an 11% decrease-the largest drop in the state. Crime in Medford dropped 8% while crime in Woburn dropped 11%.

Felony crimes, including motor vehicle theft, homicides, theft crimes, and burglary and some misdemeanor crimes, such as larceny under $250, were among the crimes factored into the study. Violent crimes and property crimes increased in cities where an increase in crimes was noted.

On Friday, Massachusetts Governor Deval. Patrick met with Harvard University students and community leaders. He promised the students at his alma mater that he would direct more funds toward preventing crime. He also vowed to develop a strategy to fight crime.

At the meeting, the Harvard Black Student Association and Harvard Black Men’s Forum, and Operation Greensboro-an anti-violence group-asked Governor Patrick to commit $50 million to fighting crime in the six most violent Massachusetts cities. Patrick, however, would not commit to an amount.

Arlington, Woburn report rise in crime, Boston.com, November 4, 2007
Governor Promises Funds for Crime Prevention, The Harvard Crimson, November 4, 2007

Related Web Resources:

Massachusetts Crime Rates, Disaster Center
Governor Deval Patrick, Mass.gov Continue reading

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