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We live in a “when the going gets tough, the tough get blaming” society today. We continue to fall into the same behavior in the face of tragedy. Then we wonder why we have the same problems. A police officer has been murdered during a robbery t. The shooter, Dominic Cinelli, who was freed on parole in 2009 and who killed Officer John B. Maguire on December 26, 2010, had an extremely bad criminal history, yet he convinced a parole board that he was a good candidate for release.

Yesterday, as the parole board returned to work, I was interviewed on WBZ, part of which interview can be found here.

The political debate has gotten so trident that Governor Deval Patrick, simply making the statement that this is a time in which we should focus on the victims of what happened, aka the officer’s family, has raised people’s ire. He also had the temerity to suggest he should gather all the information before he passes judgment.

Such outlandish suggestions brought widespread anger from police chiefs and victims’ advocates. When we get a heaping helping of angry voices, we naturally get a side order of political posturing to go along with it. For example, House Speaker Robert A. DeLeo not only expressed outrage at the board’s decision but vowed to make it a “major focus” of legislative action in the new session.

Legislation has been suggested which would remove the possibility of parole for certain repeat offenders, and require judges to impose the maximum possible punishment for anyone convicted of their third felony in Superior Court.

And, of course, why not make it a “Republican vs. Democrat” issue why we are at it? A group of GOP lawmakers claim that the bill has been stuck in the Democrat-controlled Judiciary Committee since March, and that versions of it have been circulating without action for nearly a decade on Beacon Hill.
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Well, if this past New Years Eve in Lowell and Lynn are any indication, we are in for another angry and violent year. Both Massachusetts towns were scenes of armed assaults, one of them fatal.

Yesterday, Jameson Phoun, 20 , and Sothy Voeun, 19, both of Lowell, (hereinafter, the “Defendants”) were arraigned n Lowell District Court on charges of, among other things, first-degree murder. They were held without bail, as istypical in such cases.

The Defendants are charged with having burst into a party where they had been asked to leave and shooting up a room filled with 25 party-goers. Thus far, one homicide has resulted.

According to the prosecution, said shooting was meant to “scare” the celebrants.

“I don’t characterize this as a gang issue so much as a violence issue amongst young people who are willing to carry weapons and utilize them to resolve conflict,” Middlesex District Attorney Gerard T. Leone Jr. said, standing outside the courtroom moments after the arraignment. “I would certainly refer to it as brazen. I would certainly refer to it as lawless. I would refer to it as tragic and troubling, as well.”

One 20-year-old woman died in the Lowell assault. Seven others were wounded, including two who were shot in the head. The condition other shooting victims is said to be “day to day”. “Everyone is in various stages of stable condition, and we’re hopeful that they’ll continue to get better as the days go on.”

It was a bloody New Year’s Eve in Lynn as well. There, a 55-year-old woman was hit in the chest by a stray bullet fired from a gun outside her home.
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The more serious the crime, the more desperate the prosecution becomes to predict the defense’s strategy. It is the one area in which the defense has a bit of an advantage. In a very public homicide case, outside of Massachusetts, case, prosecutors seem to be floating “trial balloons” to force the defense to reveal its thoughts.

Dr. Conrad Murray (hereinafter, the “Defendant”) has been charged with the homicide of Michael Jackson. As you will recall, Mr. Jackson died at age 50 on June 25, 2009, of an overdose of prescription drugs, primarily the powerful anesthetic propofol which can be used in surgery. Other drugs in Jackson’s system included lorazepam, known under the brand names Ativan and Temesta, and diazepam, the generic version of Valium. It is alleged that the fatal dose was prescribed by the Defendant. The Defendant has been charged with involuntary manslaughter.

Last week, In a court session to discuss evidence in the case against the Defendant, Los Angeles Deputy District Attorney David Walgren announced that he believes it is clear that defense attorneys are planning to claim that Mr. Jackson actually committed suicide.

When questioned about the prosecutor’s proclamation, defense counsel, J. Michael Flanagan, merely stated, “I’m not going to respond to that characterization. But apparently it is a consideration of Mr. Walgren,”

The Defendant hired as Jackson’s physician while the singer prepared for a series of concerts that would have begun in July 2009, has admitted giving Jackson propofol to help him sleep. But the Defendant has pleaded not guilty to the charge of involuntary manslaughter.

A preliminary hearing is scheduled to begin tomorrow. At the hearing, the court is to decide if there is enough evidence against Murray to proceed to a full trial.

There will be.

Representatives for the prosecution and defense have predicted that they expect the preliminary hearing to begin as planned and take roughly two weeks to complete.

From The Trenches

As a former homicide prosecutor and experienced criminal defense attorney I have witnessed many cases in which the chosen defense is to blame the victim.

It seldom works.
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2010 is ending with a tragedy which many people believe could have, and should have, been averted. I am talking about the recent homicide of Woburn police officer John Maguire as he tried to apprehend robbery suspects during Sunday’s blizzard. The accused killer, Dominic Dinelli , 57, (hereinafter, the “Parolee”), is also dead, by the way. Massachusetts is in an uproar pointing the finger of blame at the Parole Board which paroled the Parolee in 2008.

In fact, let’s be clear. The Board did fail to follow the applicable law which mandates that the prosecutors who put the Parolee away 20 years earlier be notified of the hearing.

Does this really mean that, had the Board notified the Middlesex District Attorney’s Office, the Parolee would not have been released? If so, would the prosecutor’s intervention have been warranted?

There is no reason to believe that the prosecutors had any more knowledge about the Parolee than the Board already did. After all, the Parolee had been incarcerated for 20 years. There was no secret about his background before then. He had an almost life-long history of violent crime. This is why he was serving the sentences he was serving in the first place.

One goal of incarceration about which we like to forget is rehabilitation. Often, there is little such rehabilitation to be observed. In this case, however, the Board voted to free the Parolee in a 6 – 0 vote. During the hearing, board members praised the Parolee for evolving from a drug-addled menace of the prison system to a model prisoner who spoke to other addicts about recovery.
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20-year-old Darryene Ware, a Brockton resident, was arraigned on Thursday for Massachusetts murder. He is accused of fatally shooting 16-year-old Chantel Matiyosus as she was leaving a baby shower in 2008. According to police. Ware and a number of other people who call themselves “D Block” started shooting at the partygoers.

He was reportedly at odds with one of the shower attendees. Prosecutors say that Ware was aiming at Matiyosus’s boyfriend and that, according to a witness, prior to the shooting Ware organized a meeting to plan the assault. Matiyosus, who sustained bullet wounds to the abdomen and head, was pronounced dead at Brockton hospital. Another victim, a male, sustained a leg injury, while another female, age 14, was shot in the wrist.

Ware has been ordered held without bail. He has prior convictions for witness intimidation and assault and battery with a dangerous weapon.

It was just on New Year’s Day 2008 that Ware’s brother, 19-year-old Markeen Starks, was fatally stabbed. Emmanuel Okoro, then 15, has been convicted of Starks’ Massachusetts second-degree murder. Witnesses say the two males got into a disagreement outside a family party and that is when Starks sustained fatal stab wounds to the neck, chest, shoulders, and face. Okoro will be eligible for parole in 15 years.

Mother of murder victim Chantel Matiyosus says suspect ‘let hate overcome everything’, Patriot Ledger, December 31, 2010
Brockton teen convicted of slaying, Boston Herald, December 30, 2010
Brockton teen shot to death, Wicked Local, April 27, 2010

Related Web Resources:
Massachusetts General Laws

Murder, Justia Continue reading

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This is one of those stories from this year which would probably never happen in Boston. First of all, in Massachusetts, Murder in the First Degree carries a mandatory life sentence without parole. It leaves very little to work with when one is trying to make promises to suspects to “just tell the truth” and “I can get you out of here”.

At least, that is the way one would imagine it would work. The truth is that when police officers investigate a murder, they have usually already determined who they “like” for the charge. So, when they question their target, as we have discussed in the past, it is really merely an invitation to make statements that are inconsistent with their case (and therefore “lies” that the prosecution can use in court later. If they are really lucky, they might gain a confession from the unwary that can be used to nail the case closed rather quickly.

It is basically a “win-win” situation…at least until an experienced criminal defense attorney is brought into the picture…assuming one ever is.

But, I digress already.

I remember being asked to appear on Court TV years ago when the disappearance of Natalee Holloway came to light. Almost immediately, Joran van der Sloot (hereinafter, the “Defendant”) was the chief suspect. However, his dad had alot of power, advised sonny to shut his mouth, and he was free because of a lack of evidence shortly thereafter.

Dad’s not around now, and sonny has been talking.
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Saying that the constitutional rights of Raymond and Ronald Mendes were violated during trial, Massachusetts’s Appeals Court has overturned their drug convictions: possession of marijuana with intent to distribute, possession of cocaine with intent to distribute, and drug violation in a school or park zone. Raymond also had been convicted of possession of ecstasy. The court, however, in its 2-1 ruling determined that the drug analysis certificates presented during trial were not enough to prove that the substances confiscated from their apartment were in fact marijuana, cocaine, and ecstasy. Police seized what they thought were illegal drugs from the brothers’ home on October 21, 2006.

The court, however, is now saying that the defendants should have had an opportunity to question the chemists that tested the drugs taken from their residence and that not having the chance to cross-examine the chemical analyst that prepared the certificates of drug analysis was a violation of the brothers’ rights per the Sixth Amendment to the United States Constitution’s confrontation clause.

It was just last year that the US Supreme Court found that the state of Massachusetts was in routine violation of drug defendants’ rights whenever it did not have an actual chemist testify about a seized substance that was an illegal drug. This year, the state’s Supreme Judicial Court ruled that the ruling should apply to cases going as far back as 2005 when a state law started allowing criminal trials without chemists.

Drug convictions overturned against 2 Somerville brothers, Boston Herald, December 28, 2010
Melendez-Diaz v. Massachusetts, Cornell University Law School, November 10, 2008

Related Web Resources:
Controlled Substances Act, The Commonwealth of Massachusetts
Drug Laws, Sec.State.Ma.Us Continue reading

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Today, as we “hunker down” and “enjoy” the last blizzard of the year, we continue the discussion about recent Massachusetts sentences that were recently handed down to fairly unusual criminal defendants during this holiday season. Today’s matter involves a meeting of sexual assault and prostitution.

James M. Burke, 43, of Chelsea (hereinafter, the “Defendant”) was a criminal court clerk magistrate in Chelsea District Court. Apparently, he had an interesting thing going with a couple of criminal defendants in court. These particular defendants had been arrested for prostitution.

According to one of the complainants, the Defendant removed her from her cell in the courthouse in 2005. He then led her to a room, locked the door, and promised to get her case dismissed in exchange for oral sex. After she fulfilled her part of the deal, the case was not dismissed.

The second victim testified that the Defendant stalked her after her arrest on a prostitution charge, then sexually assaulted her when she was at the courthouse last year. She claimed during the trial in federal court that she was forced into a downstairs room, where he sat on her during the assault and threatened to keep her in jail if she did not comply with him.

“I absolutely did not consent to this action,” she told the judge . “The brutality of it was shocking to me. Even though I had worked on the streets on occasion, nothing compared to the humiliation and powerlessness that I felt.”
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I am often asked whether Massachusetts prosecutors and judges are more lenient during the holiday season. The answer is like most answers in human events…it depends. As we end the year in which various unlikely Massachusetts criminal defendants have faced “Justice” at the bar, it is worth seeing what sentences have been coming down in cases ranging from fraud, to bribery, to sexual assault…and beyond.

Today, let’s look at an on-going sentencing struggle in federal court. it is the case in which the fate of former state senator Dianne Wilkerson is still being battered about like a piñata although she pleaded guilty months ago. As I have mentioned in the past, federal sentencing is a complicated process, complete with its own book of rules and guidelines as well as the consideration of virtually anything under the sun including the alleged existence of potential uncharged crimes.

Ms. Dickerson was supposed to be sentenced this week pursuant to her plea bargain. However, a hearing as to new allegations (supposedly committed long before her plea bargain) was held. At the hearing, the court heard testimony from a Dorchester businessman that Ms. Dickerson had pressured him to pay her several thousand dollars from 2002 to 2006 to help relieve her financial problems and that he complied because he thought it would give his multimillion-dollar development proposal in her district a boost.

“I felt it couldn’t hurt me in moving my project along,” testified businessman Azid Mohammed, who prosecutors say paid Wilkerson $6,700 in checks and cash. He testified in US District Court during an unusual evidentiary hearing that sets the stage for Wilkerson’s sentencing next month in a bribery case. But he added, “No, I didn’t want to make those payments.”

By the way, in case you are wondering, there is no news of his being charged with anything such as offering or paying the bribe..
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The Norfolk district attorney’s office says that Brighton resident Joseph Arita and Waltham local Ismael Martinez are serving 20 – 25 years in prison for the 2009 Brookline rape and kidnapping of a 30-year-old woman. Arita, 26, and Martinez, 27, each pleaded guilty earlier this month to one count of Massachusetts kidnapping involving a sexual assault, two counts of aggravated rape, and other assault and battery charges.

The woman, a Brookline resident, told the authorities that while walking to her home after taking a cab from Logan International Airport on Aug. 18, 2009, she was struck on the head by one man, who then pulled her into the back seat of a red pickup truck that another man was driving. The two men then drove her to a parking lot and assaulted her before taking her to another location and freeing her.

She reported the incident to Brookline police. DNA evidence matched the woman with Martinez and Arita. The Norfolk district attorney’s office had sought to obtain 35-to-40 year prison terms plus 20 years probation for the two men.

Massachusetts Criminal Defense
The state of Massachusetts treats the criminal charges of rape and kidnapping very seriously and prosecutors will zealously pursue defendants. For example, a Massachusetts aggravated rape conviction can result in a life prison term.

It is important for you to have a Boston criminal defense law firm that can protect your rights, ensure that all laws and proper procedures were followed leading up to your arrest, and explore all avenues of defense to secure the best outcome possible for your case.

Brookline rape, kidnap suspects plead guilty to 2009 attack on woman, WickedLocal, December 16, 2010
2d suspect held in Brookline rape case, Boston.com, August 23, 2009
One Of Two Suspects Arrested In Brookline Rape Case, Boston Criminal Lawyer Blog, August 20, 2009

Related Web Resources:
Norfolk district attorney’s office

General Laws, Massachusetts Legislature Continue reading

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