In the last Attorney Sam’s Take, we discussed the case of “Whitey” Bulger and the new issues brought in that case. Yes, again.

As we ended that blog, it became apparent that the latest issue is whether he will be allowed to present whatever defense he wishes to in front of the jury.

Many people assume that a criminal defendant has the unfettered right to choose which defense will be presented on his behalf to a jury. Those people are incorrect.

In the Bolger case, we see that the prosecution is already trying to limit Bulger’s defense options. More specifically, Bulger claims that he had been given immunity from prosecution for any crimes he might commit while he was an informant for the federal government. There are two arguments that the defense is making to counter the Government’s attempt to stop that defense in its tracks. First is that the Government’s position violates the “Separation of Powers” rrovision in the United States Constitution. That is a more complicated issue and is better discussed herein another day. The other issue, however, is ripe for our discussion.

The defendant claims that he has the right to present the defense he wishes to present at trial.

“Sam, why wouldn’t any criminal defendant be allowed to present the defense upon which he relies?”

There are many limitations to a defendant’s choice of defenses at trial. Many of the rules impacting on this are the rules of evidence. The rules of evidence were created so that both sides get a fair trial. However, these rules often prevent evidence from being heard and arguments being made. The rules can cut against either party. In the situation we are discussing, they can cut against the criminal defendant’s choice of defense.
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I could tell, this morning, as I noted the drop in temperature, not to mention the snow, that something was a bit different. Instantly, I figured out what it was…you woke up wondering what was happening these days in the proceedings leading up to the federal murder trial of James “Whitey” Bulger (hereinafter, the “Defendant”). Well, let me bring you up to date on the latest debate.

The Defendant’s lawyers are reacting to the prosecution’s latest argument regarding the alleged immunity which the defense claims was given to the Defendant during his days as a government informant. The prosecution has argued that a judge should force the Defendant to show proof of the deal he says he had with the late United States Attorney Jeremiah O’Sullivan, who the Defendant says gave him immunity in the 1970’s and 1980’s. It would seem that the prosecution would like to prevent any mention of the immunity issue during the actual trial.

Attorney J.W. Carney, Jr., lead attorney for the defense is arguing that a jury – not a judge – should decide whether the immunity defense in this matter is legitimate. Carney argues further that the immunity pass “did not have an expiration date”.

Attorney Carney argues that it is the Defendant’s choice alone whether to bring up the defense of the immunity prior to trial. Having the court decide that issue, he says would violate the separation of powers between the executive and judicial branches of the federal government. Further, Carney wrote in the opposition to the government’s motion, “…the prosecuting attorneys were not witnesses to the grant of immunity; they simply advocate in an attempt to disavow the (Department of Justice’s) agreement…Despite their inner conflict, the United States Attorney’s Office cannot employ the court to renounce their obligations.”
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…But then again, maybe it isn’t kids making threats these days.

William Rearick, 45 of Pemroke (hereinafter, the “Defendant”) pleaded not guilty today in Plymouth District Court. He stands charged with making threats in a fairly threatening manner. The Commonwealth contends that he doused his girlfriend’s two children with gas and threatened to blow up the house where they were all living.

This was no mere twitter threat (see yesterday’s blog). Most of all, he is alleged to have had the means to carry out the threat. There is, however, a twist to indicate this is not simply the story of an evil trouble-maker just looking to get revenge or something of the like.

The Defendant, according to the police report, has a history of mental illness. The neighbors say he could neither speak nor hear. They say that he lived in the home with his girlfriend, his girlfriend’s two children, a child of his own, and the girlfriend’s mother. The neighbors said he was very attentive to the children and they communicated with him using sign language.

The allegations are that the Defendant entered the Birch Street home Wednesday afternoon with a gasoline can and a propane tank. He is said to have tried to use a lighter to ignite the propane gas, saying he wanted to kill himself, according to the police report filed by Pembroke Police Sergeant William Hinchey.

He is then said to have struggled with his girlfriend’s two daughters, pouring gas on them, then poured gas all over the kitchen floor.
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The occasions in which I find myself looking up at the sky and shouting, “Really? Again? Is anybody ever going to start learning?”

But, then I remember that they are kids and, as long as they suffer from that affliction…probably not.

A 16-year-old Mashpee High School student has been charged with a felony and two misdemeanors, including threatening to commit a crime and disturbing a school assembly.

You’ve got it…another threatening Twitter story.

The young brain-trust apparently threatened that he or she was going to shoot everyone up at the school. Less than one month after the Newtown Connecticut shooting.

And so, quite rightly, Mashpee Police Chief Rodney Collins explains that “When someone says in a tweet that they’re going to shoot everyone up, we’re going to get involved.”

It was on Monday that the school officials received the printed copy of a Twitter communication between the student-at-issue and a Rockland teen which contained the threat. Just to make sure that nobody missed it, I guess, the Rockland High School Principal Alan H. Cron wrote a letter about it and posted it on the school’s website.
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Not that it is among the most serious of offenses we often discuss, but if you are hoping to cheat the MBTA out of its fares…you mat want to save that idea for another day. Massachusetts is striking back!

As the good folks at Boston’s premiere news/talk radio station WBZ (1030 am) report, transit police officers are conducting an ongoing criminal investigation into the practice.

Well, it is, after all, a theft crime.

The results so far?

In the span of 45 minutes at the Back Bay Station, MBTA Transit Police officers bagged four alleged fare evaders.

The investigation has brought other rewards to law enforcement as well.

For example, just this past Monday, at the Chinatown Station, officers stopped a fare evader and found out she had a warrant for her arrest. Rosa Medrano, 43, was wanted in Salem. “One in 10 people that we stop for fare evasion, we’ve found in the past have had warrants,” said Transit Police Sgt. Preston Horton. Medrano was the first fare evasion/warrant arrest of the New Year.

Naturally, like all walks of law enforcement, this shiny new investigation has catchy title. For example, the fancy-named operations to catch similarly-situated disgraces of humanity like armed robbers and sexual predators (often on the trains themselves) come to mind. This one is called “Operation Fare Game”. It targets busy stations and ones with multiple ways in and out. The department even received additional financial aid for the operation. Superintendent O’Connor explains that when the fine increased from $15 to $50 dollars last summer, his enforcement increased as well.

“We began to increase the teams we use to address fare evasion. It is also part of our point of entry policing where if we believe that if we stop people who are fare evading that we’ll likely reduce the amount of disorder in our system,” he said.

That makes sense. Crack down on fare-beats and the criminal justice system should work much more efficiently again! I am embarrassed that i had not suggested it before…!

Various diabolical schemes have been used to fare-beat. For axample, as Sgt. Horton describes, after stopping someone passing through a gate in front of a plain clothed officer, “He did have a card. It had money on it..He’d pretended to tap and then piggybacked behind another person.” That man got a citation, along with another woman who walked in without paying behind her friend.
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The criminal justice fate of former Massachusetts Treasurer Tim Cahill apparently remains undecided. In Boston’s Suffolk County Superior Court last Friday, a hearing took place regarding the matter. Until then, at least publically, both sides had declined to say whether Cahill will be tried for a second time on corruption charges.

It would appear that the hearing did not change that very much.

The hearing was apparently one of the “closed door” variety. Judge Christine Roach spoke to the lawyers up at sidebar, so spectators in the courtroom could not hear what was said. Likely, however, a record was kept of the discussion.

Friday’s hearing marked three weeks after the jurors in the first trial failed to reach a verdict on charges accusing him of scheming to run $1.5 million in taxpayer-funded lottery ads to help his unsuccessful 2010 gubernatorial campaign. The co-defendant, Cahill’s former campaign manager, was found “not guilty” by the same jury.

Word has it that Attorney General Martha Coakley has not yet decided to retry Cahill. At least, this is what her spokeswoman said on Friday. However, word also has it that the attorneys for the prosecution and the defense have been negotiating a civil resolution to the unprecedented criminal case.

The court has scheduled another status conference for January 25th.

Attorney Sam’s Take On Considerations For Retrying A Criminal Case:

“Sam, under what circumstances would there be a retrial?”

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Over the last couple of days, we have been discussing the case of the first Boston area murder of 2013. Now, a whole four days have gone by and so naturally there have been more murders, or at least homicides, to follow that one. However, we found ourselves discussing the issue of self-defense.

In the New Year’s day homicide, the weapon of choice was apparently a knife. At least, that is what apparently took the life of the young man who died. Of course, it would also appear that before any knife was involved, fists and the rest of the accompanying body were the weapons used.

Many people still misunderstand the theory of self-defense and when to raise it. For example, I have spoken to some clients who believe that when the police are conducting their initial criminal investigation, one can simply explain that the killing happened out of self-defense and the police may well shrug , walk away and close the case.

It seldom works that way.

This is why the subject of the investigation often makes a critical mistake that will come back to hunt him or her later. The investigating officer cajoles the target, making promises like “we only want to hear your side of the story” and “we know you’re good person … it must have been justified”. The target then, rather than consulting an attorney, decides to go it alone and give their story to law-enforcement. The result? The target becomes the defendant.

“But Sam, what if it really was self-defense and the story given by the target lays that out pretty clearly?”

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In yesterday’s blog, we began discussing this, the first homicide for The Boston area in 2013. Yesterday, the recipient of the stabbing remained unnamed and unknown. Yesterday, Brian T. MacDonald, 24, of Brighton (hereinafter, the “Defendant”) was arraigned.

The deceased’s name was Anthony “Tony” Spalding. He was a young music producer and art student. He is said to have died as a result of the brawl he had in Allston with the Defendant on New Year’s Day.

Mere hours after an indie rock album he had produced was released.

Spaulding became the city’s first murder victim of 2013 when he was killed just before 3 a.m. Tuesday? Friends and fans remembered Mr. Spalding, stating that he will live on in the songs he helped create.

“Tony knew what he was doing and definitely would have been a force to be reckoned with,” said Tyler Kinsherf of the indie folk band Anika Scribbling. “Anything music he was into. He’s left behind a legacy. These files, these tunes will exist forever.”

Spalding died as a result of being stabbed during the fight outside his home on Pratt Street in Austin.

The Defendant,, an assistant manager for Sears Automotive, pleaded not guilty to the murder charge yesterday in Brighton District Court. He was ordered held on $500,000 cash bail by Judge David T Donnelly.

Assistant Suffolk District Attorney Holly Broadbent described for the court the investigation which led to the Defendant’s arrest. Apparently, investigators tracked the Defendant down by following a 2 mile trail of blood that the police suggest dripped from cuts on three of the Defendant’s fingers. The cuts required emergency room attention.
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Hello and Happy New Year, Massachusetts!

In case there be doubt, we are continuing on from where we left off, in terms of criminal justice, at the earliest possible time. In other words, as of January 1, 2013, the Boston area had its first homicide of the year.

The victim is said to be an, as of yet, unnamed 21-year-old man who was fatally stabbed. He was attending a house party when authorities say things spiraled out of control. Police did, of course, release the name of the suspect. He is 24-year-old Allston resident Brian MacDonald (hereinafter, the “Defendant”) . The Defendant’s arraignment is scheduled for today in Brighton District Court.

While the stabbing is said to have taken place at approximately 2:45am, Boston police Officer James Kenneally, a department spokesman, said that the Defendant was not arrested until later in the day. He indicated, however, that he had no information on what touched off the stabbing.

One neighbor, Alex Breski, 21, said he was at the house on Monday night for a New Year’s Eve party and left shortly before the stabbing. He also said that he returned when he heard screaming and saw the victim, a tenant of the house, lying in the snow and bleeding heavily from several wounds.

“His friends got their hands on the wounds,” he said. “There’s blood all over the snow … I was standing there the whole time, he wasn’t moving.”

He went on to say that about 30 people left the house and began running in different directions, and that a dispute over unwanted guests at the party may have preceded the stabbing.

He described the scene as “crazy”.
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Massachusetts law enforcement, as well as school officials, Are trying to send the message out to old and young alike that threats about showing up at schools with weapons is not going to be tolerated. Part and parcel of the message is that jokes about school shootings and like murders are not funny in the least.

Attorney Sam’s Take mentioned yesterday that the arrest recently of a 15-year-old girl who supposedly requested somebody bring violence to her school was an overreaction. I stand by that observation. However, it is an overreaction that one must expect during these times immediately following the tragic shooting in Newtown Connecticut.

When I began this topic earlier this week, I mentioned the idea of “felony stupidity”. In these cases, where kids are posting comments about shooting up schools, whether in bad humor or truly meaning it, One has to question such kids mental abilities.

But, then, what comes to mind is some of Bill Cosby’s humor about kids. He contends that kids have “Brain damage”. He goes on to give funny examples. As there is nothing funny about this topic, I will leave you to look up those comments on your own. No, kids do not necessarily have brain damage. However, we do know that they are biologically not yet developed. If brains are not fully developed. They are kids. And part of Being a kid, often, is to make stupid mistakes.

So, here is the problem that now faces all of us and our kids. We are living at a time where, understandably, there is no tolerance for any suggestion of school violence. It doesn’t matter if it’s a joke, and over statement, or cry for help. They will be no tolerance fart. How do We react then two things for which we have no tolerance? These days, we bring in law enforcement. True, the result will impede our kids abilities to get further in life, but, the idea is to prevent the shootings. Clearly, a bunch of kids lying dead because of the shooting is worse than the roadblocks put up in the criminal records of these other kids.

So much so that today mere rumor of the possibility of such violence is enough to begin a criminal investigation.
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