Boston Criminal Lawyer Blog

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.
Continue reading

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.”
Continue reading

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?”

Continue reading

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.
Continue reading

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”.
Continue reading

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.
Continue reading