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The reports are still coming in from Yarmouth. The Boston Herald tells us about the Yarmouth K-9 police officer who was fatally shot and dog wounded. The shots allegedly came from a suspect who was hiding in the attic of a Marstons Mills home as officers searched the house yesterday afternoon, police said.

K-9 officer Sean Gannon, 32, later died at Cape Cod Hospital in Hyannis.

The suspect, later identified as Thomas Latanowich, 29, and hereinafter, the “Defendant”, remained barricaded in the house for several hours in the Barnstable village as SWAT teams ringed the house. The Defendant was later taken into custody and was  arraigned on a murder charge today in Barnstable District Court.

The Defendant pleaded not guilty to murder and was held without bail. His next hearing will be June 26.

The court room was filled during the arraignment with police officers from Yarmouth and Barnstable Police Departments.

The Defendant entered the court with his head down. He made no

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Sometimes, even though we may not know all the facts, it is clear that some horrible tragedy has taken place. Probably one that has something to do with distorted perceptions of some kind. By some body.

Either that or pure evil. But then, I do not tend to believe in “pure evil” in such situations. I’ve seen too much.

But I digress (already).

In Fitchburg District Court, the allegations were presented in open court. The event was the arraignment of mother Shana Pedroso, 37, and the children’s father, Marvin Brito, 38. After the hearing, the two were ordered held without bail pending a dangerousness hearing next Wednesday.

The case involves a 6-year-old girl and her 9-year-old brother. The 6-year-old girl is dead.

The brother told police that he and his sister went out for a walk on Monday with their parents and two other kids. He said that when the parents left them, “he and his sister were attacked by bullies,” according to a police report.

The brother, according to the police, suffered “serious injuries and bruising to his face.” He also told officers his mother “had glued a wound on his neck closed with super glue,” and that his parents had told him not to call 911.

The sister was pronounced dead after being found unresponsive in the family’s home on Stoneybrook Road, where the children were home-schooled.

Police said they observed “extensive bruising of various ages over her entire body.” Her brother said she was unable to drink yesterday morning “and that his mother was mad.”

Police said that while booking Pedroso yesterday they found handwritten notes on her dated Monday saying “that the children were bad and beaten.”

According to the Boston Herald,  the mother is facing charges of assault and battery causing injury to her children and reckless endangerment of their lives. Dad was charged with permitting substantial injury to the children, in addition to reckless endangerment.

Prosecutors did not rule out further charges.

The Department of Children and Families has taken custody of the 9-year-old boy and said that the agency had no prior involvement with the family, adding in a statement, “The Department of Children and Families continues to assist law enforcement in the active investigation of this tragedy.”

Attorney Sam’s Take On The Case As It Is And Could Be

I suppose that the assumption here is that the mother’s note regarding the children being “bad and beaten” is a mere reflection of what happened. That the mother, perhaps unaware that any wrongdoing somehow was simply doing her job as a home schooling mother and keeping accurate notes of the day’s events.

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Just as defendants in a criminal case have certain rights, so do witnesses. The information you are obligated to provide when asked is dependent on the nature of the case, and who is doing the asking. For example, if an attorney or detective calls you hoping that you’ll speak about the case, you are not legally obligated to do so, unless you have been subpoenaed.

If you do receive a subpoena, you are required to show up for the meeting or trial, and to provide the requested information. You can, however, employ your fifth amendment right by refusing to answer anything that could incriminate you. Additionally, you can refuse to testify about any communications that you may have had with your spouse.

Perjury

If you testify, you are under oath. As a result, you are obligated to tell the truth. This is as true of a deposition as a trial in front of a grand jury. Any lies or misleading comments given during your testimony may be considered perjury. Perjury is the crime of lying under oath (“I swear to tell the truth, the whole truth, and nothing but the truth”), and it is a felony offense. A conviction of perjury under federal law may carry up to five years in prison. In order to be considered perjury the act must:

  • Occur under oath
  • Include an actual statement (silence is not perjury)
  • Intentionally mislead the court
  • Be material to the case (a lie or exaggeration that has no bearing on the case is not likely to be considered perjury).

A MA criminal defense attorney can help you determine how to proceed if you’ve been called as a witness to a criminal case.

Victim Witnesses

If, in addition to being a witness to a crime you are also a victim of that crime, you have additional rights. Whereas a non-victim witness is not allowed to attend court proceedings related to the crime in question (other than one at which he/she is required to testify), victim witnesses have a right to be present at any public court proceedings. Victim witnesses also have the right to be informed of the defendant’s release or detention status, as well as the status of the ongoing investigation.

Legal Counsel

If you have been called as a witness to a criminal case, it is in your best interest to hire your own attorney. In addition to ensuring that you know your rights, an attorney can help you to avoid making incriminating testimony. When called as a witness, you do have rights, but you also have obligations. Determining what you have to do and what you can refuse, and how to not incriminate yourself, is much easier with legal counsel. Further, an experienced Boston criminal defense attorney can ensure that other attorneys follow the rules when questioning you. For example, attorneys are not permitted to “badger the witness” during testimony. Continue reading

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Okay… maybe that is a little misleading. Maybe they weren’t really lies.

Perhaps, when you were taught them, your teachers and parents thought that they were actually true. Maybe they even were true at the time.

But not any more. Not really.

Attorney Sam’s Take On Criminal Justice Reality

Time and again I am saddened by clients who thought they were playing “by the rules”, actually were playing by those rules and yet the system made them suffer for it. Here are a few examples of what I mean:

  1. If you always do what you feel is the morally correct thing to do, you won’t get into trouble.

While it would be nice if that were true, it is not always true. First of all, it completely ignores that different people feel that different things are the “right thing to do”. I am not even referring to those of us who are deranged or otherwise have a broken moral compass. Sometimes even doing what seems to be obviously the right thing to do can get you in trouble. For example, the law may not agree with you in terms of the right thing to do.

I once handled the case where my client was trying to help a child, who was a close friend of his young daughters, in a very physically painful situation. The girl was young and her parents where nowhere reachable. Helping her pain was easy and something that he had had to do several times for his own daughter of that same tender age. In fact, the child was begging him to provide the medication that would eliminate the pain.

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After a week of various news stories about police officers behaving badly, not so long after my 3-parter about that not necessarily being an unusual exception to the rule…it seemed like this update might be rather timely.

According to Boston.com, what’s been forecasted for quite awhile is now apparently happening. The Supreme Judicial Court (“SJC”) has now ordered the dismissal of thousands of drug cases tainted by a former chemist who authorities say was high almost every day she worked at a state drug lab for eight years.

Yes, the old Sonja Farak (hereinafter, the “Chemist”) story again.

According to the American Civil Liberties Union of Massachusetts and Committee for Public Counsel Services (“CPCS”), the state’s public defender agency, more than 11,000 convictions in nearly 7,700 cases are being tossed. Both agencies are also asking the court to throw out thousands of other cases potentially impacted by the Chemist.

Prosecutors have also agreed to dismiss the cases tainted by the Chemist, who pleaded guilty in 2014 to stealing drugs from the lab.

The Chemist’s case is separate from another Massachusetts drug lab scandal that resulted in the dismissal of some 21,000 convictions last year. Of course, both are separate and apart from a rather infamous rogue chemist and the thousands of cases that were dismissed because of her fraudulent actions a few years ago.

Attorney Sam’s Take On An Old History Adage

There is an old saying, “Those who do not learn from history are doomed to repeat it.” In more modern terms, I used to watch the television show Twin Peaks, which featured the quote, “It is happening again.”

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Fans of the hit podcast Serial will be interested to learn that Adnan Syed, the man whose murder conviction is the focus of the show, has been granted a new trial. Last week, Maryland’s second-highest court upheld a lower-court’s ruling that—due to deficient counsel in his original trial—Syed deserves a new trial.

The appeals court’s three-judge panel said on Thursday that his legal counsel’s “deficient performance prejudiced Syed’s defense.” They went on to say that if the defense team had managed to contact even one witness with an alibi that could “have raised a reasonable doubt in the mind of at least one juror,” the outcome may have been different. A Boston criminal defense attorney can help you determine how to proceed if you’ve been charged with a crime.

Multiple Inconsistencies

The first season of Serial followed the investigation into the murder conviction of Adnan Syed. About 18 years ago, Syed was convicted of murdering his former girlfriend, Hae Min Lee. But the show’s host, Sarah Koenig, uncovered multiple inconsistencies in the case against Syed. For example, a woman by the name of Asia McLean should have been contacted as an alibi witness; she reported having seen Syed at the same time Lee’s murder was alleged to have occurred. However, not only was McLean not contacted by the defense team, her testimony never appeared in court.

Although Thursday’s ruling upholds a previous decision to retry Syed’s case in Maryland’s circuit court, there is a good possibility that prosecutors will appeal.

In addition to failing to contact McLean, Syed’s defense team neglected to question evidence used to trace Syed to the crime scene, including the reliability of a cell phone tower that placed him at the site where Lee’s body was found in a shallow grave.

Failure to Present an Alibi Witness

Syed’s lawyers argued that his former counsel provided ineffective assistance, primarily based on the fact that Asia McLean—who said Syed was at the library at the time of the murder—was never presented as an alibi witness. Had the jury been given this information, it is possible that a reasonable doubt may have been raised in the mind of at least one juror. Judge Martin Welch agreed, saying that Syed’s previous counsel “fell below the standard of reasonable professional judgment.”

Prosecutors have 30 days within which to appeal this decision or proceed with the new trial. Whether Syed is granted bail while awaiting his new trial has not yet been determined. A MA defense attorney can help you protect your rights if you’ve been charged with murder or any other crime. Continue reading

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Due to the recent surge in mass shootings and the resulting gun debate, the term “stand your ground” has frequently been in the news. In stand your ground states, such as Florida and Texas, an individual can use force, without retreating, to protect himself against a threat. In these states, shooting an attacker would generally be considered within your rights if you feared for your safety. Massachusetts, however, is not a stand your ground state.

MA is a “duty to retreat” state, which means that you cannot use deadly force—even in self-defense—if you can reasonably avoid harm by retreating (such as running away). If, however, you are cornered, or otherwise unable to retreat, you are legally allowed to use deadly force if your life is threatened. A MA defense attorney can help you protect your rights if you’ve been charged with a crime.

Castle Doctrine

Although MA is a duty to retreat state, that duty does not apply to home intruders. Due to a MA statute called Castle Doctrine, there is no duty to retreat when the intruder is in your home. Some states apply the Castle Doctrine to areas outside of the home, such as the driveway. In MA, when the killing takes place in the defendant’s driveway, or on a porch or outside staircase, the doctrine does not apply. Nor does it apply to invited guests, even if the guest threatens the defendant’s life. There are, however, some exceptions to this rule. For example, if an invited guest is asked to leave, pretends to leave, gets a gun from his car and comes back, his status as an invited “guest” will change to trespasser.

People are allowed—by law—to defend themselves against the threat of physical harm. In fact, many people charged with murder or another violent crime often cite self-defense as the reason for their action. However, in order for this defense to work, the defendant must be able to show that a real threat existed. A Boston defense attorney can help you determine how to proceed if you’ve been charged with any type of crime.

Was Your Action Proportionate to the Threat?

In both stand your ground and duty to retreat states, the type of self defense used against an intruder must not exceed the threat. For example, if you come downstairs for a midnight snack and find an unarmed burglar in your kitchen, shooting him ten times will likely be perceived as excessive. However, if you wake up to find an intruder standing over your bed, gun in hand, you will probably be justified if you grab a gun from your nightstand and shoot him. This would also be true if it was later discovered that the intruder was wielding a fake pistol. It’s the perceived threat, not the actual threat, that matters.

If your self defense is not proportionate to the threat, this is known as imperfect self defense. No state gives you the right to attack without cause, and within each stand your ground state, a person’s right to use lethal force varies. Continue reading

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You know, words can be funny. In some arenas, they mean one thing, and then in another, they can mean something different.

This happens a lot in the practice of criminal law.

Attorney Sam’s Take On Assault And Battery

Harry Hands sees Sally Shoulder. Harry likes Sally. He calls to her and she does not answer. Perhaps she is ignoring him. Perturbed, he rather forcefully taps her on the shoulder.

Did Harry break the law?

We are talking about the potential crimes of Assault and Battery here. In Massachusetts, an assault is when you place someone in fear that they are about to be struck. The battery is when they are stuck.

Perhaps you are thinking, “Well, of course not. Sally did not incur any damage…unless she has a glass shoulder. And, in that case, still no because he couldn’t have known that.”

Your understanding would be wrong.

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Hello again! How was your holiday weekend?

Well, the chances are that it was better than that of Sean Ingram, the 64-year-old retiring fire fighter in Boston and hereinafter, the “Defendant”. He is the gentleman who was arrested Thursday night after “ purposefully crashing into a state police vehicle and calling troopers “Nazis” while failing field sobriety tests”, according to WCVB ,

It was one day prior to his reaching the mandatory retirement age according to the fire department. Instead He was scheduled to retire, instead the day was spent in an Arraignment and fighting to be released on $500 bail on various motor vehicle crimes.

It was the reportedly the Defendant’s second OUI.

It was State Trooper Brendan Murphy who first pulled the Defendant’s vehicle over on the Expressway. The stated cause for the stop was reportedly that the officer had noticed damage on Ingram’s front bumper.

In his arrest report, Murphy wrote that he instructed the Defendant to pull off the highway and then returned to his own vehicle. Murphy then noted that the Defendant sped away at a high speed and swerved between lanes before exiting onto Gallivan Boulevard, stopping in front of the Walgreens. The Defendant is said to have then put his vehicle into reverse and accelerated into the front of the trooper’s cruiser.

Trooper Murphy went on to describe how he asked the Defendant if he was ok and that the Defendant shouted, “’No,’ and began yelling how I rear-ended him. I explained to him that he reversed into my cruiser, which he intensely called me a loser and began to become belligerent.”

Apparently, the trooper called for back-up. “When I reached the open window, I immediately detected the strong odor of an alcoholic beverage,” Sgt. Kevin Murray wrote in his report on the arrest. He described the Defendant as becoming “very belligerent” and “raising his voice and swearing” when asked about what had happened. He reported that the Defendant had told him that “he had attended the Bruins hockey game earlier that evening and that he had consumed some alcohol”.

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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

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