Sometimes the sequel is much more interesting than the original . Even in the land of criminal justice!

Take the ongoing Mattapan massacre multiple murder trial for example. Last week, we discussed the surprising direct examination of the sole eyewitness regarding his “surprise” alleged redemption of memory…and eyewitness ability. Now, as the jury deliberates, the court was treated to another surprise…the need to excuse one of the deliberating jurors.

All judges are very careful to give certain instruction to jurors throughout a jury trial. The judge presiding over the trial, Superior Court Judge Jeffrey Locke is a very well seasoned and deliberate jurist. You may be sure that he is not one likely to forget such admonitions. One of these admonitions is that jurors are not allowed to do their own research in a case. Rather, they are told that they must determine their verdict based solely on the evidence in the trial as applied to the law as the judge gives it. Of course, other obvious things may be used…such as the ability to reason and common sense.

The juror in this case did online ballistics research. That is a direct violation of the court’s Orders.

And so it was that Judge Locke had to announce, “A juror violated the rules I have given. One juror took it upon himself to do research and that is not evidence, only the testimony is evidence.”

To make matters worse, that juror may well have tainted the rest of the panel. Apparently the juror shared some of his research with other jurors. For this, of course, the judge chastised the juror. However, Judge Locke praised the other jurors who apparently indicated that they would disregard the information. In fact, the jury’s foreperson alerted the judge in writing this morning about the violation.

Judge Locke, finding that the research was not necessarily directly linked to the events on trial, determined that a mistrial did not need to be declared. He did, however dismiss the rogue juror and replaced him/her with an alternate juror.

“I cannot tell you how serious and upsetting a violation of a juror’s oath and obligation this was,” Locke said. He also explained that the deliberations would have to be started from the beginning.

Jury issues have complicated this matter which was not so clear-cut in the first place. First of all, the panel had to be bused in from Worcester throughout the five-week trial. Deliberations began for alittle under two days last week and cancelled on Friday due to a sick juror. Today, the court had to look into the matter of the juror violation. Deliberations were halted for a few hours as each member of the jury was questioned individually by the judge. After the jury was reconstituted and told they had to start from the beginning, the deliberations restarted at noon. Not surprisingly, no verdict was immediately forthcoming.
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In yesterday’s Attorney Sam’s Take, I mentioned that the typical law enforcement approach to cases which necessitate more care may be in the best interest of nobody.

I described a scenario involving assault with a dangerous weapon which was, to some extent, unavoidable given the ways such calls are answered.

There are other, less unavoidable, police habits which can make what would otherwise simply be a mockery of Justice into a more tragic and long lasting fiasco.

We have discussed the fact that law enforcement generally decides what the facts of a given case are before all the evidence is in. Further, we have described many incidents wherein the police simply assume that whoever called them first must be the “victim”. Law enforcement, both on the street and in the courtroom, seem to have suffered a collective hard blow to the head which knocked out the memory of life before they joined the side of the “angels”. In other words, the reality that many people fear, or simply do not trust, police officers.

In short, despite the reality that most of us experience, they do not believe that an innocent person might not run to their protection whenever something is wrong.

Terry Troubled has a mental health history. That history does not include violence toward others, but hurting herself. She is married to Carl Controller. Sometimes, Terry does not respond as Carl would prefer her to. While she is not being violent to anyone (including herself right now), she is not behaving properly again as far as Carl is concerned. Well, Carl knows how to get her “in line”.

He picks up the telephone.
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Yesterday, Attorney Sam’s Take began discussing the case of 52-year-old Madina Clayton of Boston (hereinafter, the “Defendant”). She was arrested for assaulting men on the MBTA Green Line train Tuesday evening. While she did not physically make contact with anyone, the reports of her behavior are certainly bizarre. It also turns out that there was a default warrant out for her arrest in a similar matter.

You may think that it would be appropriate, at her arraignment, that the Defendant would be sent for some kind of evaluation for mental illness.

While I do not know the details of yesterday’s arraignment, I have seen these types of cases before.

The role of law enforcement in cases of mental illness, usually involving some type of assault, is frequently misunderstood. That misunderstanding often proves tragic…sometimes fatal.

While officers do get some training about handling the situation with folks experiencing psychotic episodes, they tend to approach the situation with their usual approach. The approach to control the situation and clear out the threat…or perceived threat.

That means with force and intimidation. It is what they are trained to do. Eliminate the perceived threat and get it into custody. Once the arrest is made, a choice must be made whether to bring the person to a hospital (usually if they are out of control) or bring them to court for arraignment.
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Today’s Attorney Sam’s Take involves the definition of Massachusetts Assault (as opposed to Assault and Battery), the intersection between criminal justice and mental health and touches upon one of our favorite topics…when free speech rights control and when they do not.

Last night, 52-year-old Madina Clayton of Boston (hereinafter, the “Defendant”) was arrested at the Brookline Hills MBTA Station after allegedly threatening several men with a knife while riding on a Green Line trolley.

According to MBTA Transit Police, the Defendant allegedly pulled out a small folding knife as she sat on the Riverside Line train. While sitting across from a male passenger, the Defendant allegedly repeatedly opened and closed the knife while staring at the gentleman.

The man understandably nervous, apparently got up to move to another part of the train. According to law enforcement, this is when the Defendant stood up, pointed the knife at him and shouted an obscenity at him.

The Defendant is said to have then turned her attentions to another male passenger. When he changed seats, she allegedly followed him with the open knife.
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One of the Massacuhusetts murder cases we have been tracking for the past couple of years is in the middle of its second trial. This is the so-called “Mattapan Massacre” trial in which, at the first trial, the jury acquitted one defendant and could not reach a unanimous verdict as to the other, Dwayne Moore (hereinafter, the “Defendant”).

The Defendant is on trial again as this is being written.

The attorneys are expected to give final arguments to the jury today.

The last time we discussed this case was when it came to light that the one eyewitness of the shootings, Marcus Hurd, had decided to change his testimony since the last trial.

Mr. Hurd, the sole survivor of the 2010 attack in Mattapan that killed four people, including a two-year-old child, gave a detailed account at the first trial. At that trial, though, he indicated that he could not identify the shooters. After that trial, howerver, Mr. Hurd delivered the bombshell that his memory had improved, he was no longer afraid and he now recognized the Defendant as the man who had shot him.

A hearing was held during which the Commonwealth requested it be allowed to bring this new testimony forward at the re-trial. They won that hearing. Mr. Hurd was allowed to testify as to his improved abilities.

But…he did not do so.

Nobody asked him.

And so, the hard-won testimony, which I would imagine the Commonwealth touted as critical and the “truth” never came in.

During his testimony at the retrial, nobody asked him. And so, he did not identify the Defendant as the shooter.

The reason why the defense lawyer would not ask the witness to identify his client as the murderer are evident.

When asked why the Commonwealth did not elicit the testimony, the prosecutor explained that he does not discuss trial strategy with the press.

Yeah. It’s a big mystery.

Attorney Sam’s Take On The Game Of Criminal Justice

Last week, we discussed my assertion that the criminal justice battles, both on the streets and in the halls of Justice have become games.
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Attention Massachusetts Drunk Drivers! The criminal justice spotlight is looking for you!

The Commonwealth has announced that it is stepping up the enforcement of liquor laws. Of course this includes keeping an eye on drivers who may have had a bit too many, but that is not all that is being allegedly watched this time. The liquor laws are being monitored at the proverbial “watering holes” serving the intoxicating substance.

The Alcoholic Beverages Control Commission will be focusing its attention on restaurants and bars in Massachusetts by making sure they are following laws against serving intoxicated or underage patrons. Likewise, one would imagine that there will be folks watching liquor stores to make sure that the younger among us are not being allowed to purchase such beverages.

The hope is that strong enforcement of these laws will prevent tragedies before they happen. Authorities also point out that well over half of all arrests for impaired driving involve individuals who had been drinking at bars.

The holiday crackdown, in conjunction with the National Highway Transportation Safety Administration, began after Thanksgiving and will continue through New Year’s Eve

Attorney Sam’s Take on Interaction With Law Enforcement Oversight

“Sam, is this really something new?”

No, of course not. Especially this time of year. There is always extra police attention on drunk driving and similar alcohol-related offenses.

However, this does not make it any less important to remind you. It also gives me the opportunity to attach another reminder which is worth repeating.
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You have, no doubt heard about things like ” good cop – bad cop” and “playing cat and mouse”. Regardless of the circumstances, they are games. No doubt they are used in under very serious circumstances. Who wins these games truly matters.

But that does not make them not games.

Whether it be as intense as a homicide investigation or simply trying to get an admission out of an alleged drunk driver, the procedure is a game. A game in which lesser games, such as those to which I referred above are used.

Likewise, as the defense attorney and the prosecutor plan strategies and try to bend the rules of evidence to their favor, the courtroom theatrics are a game.

Lives hang in the balance. That is true. However, the two sides of advocates are not looking for any truth. They have already developed what they will put forth as the “truth”. The goal of the game of trial is to convince the jury or the judge. It is very serious business. However, it is still a game.

My various Attorney Sam’s Takes have ranted about this from the beginning. In order for you to understand how the criminal justice system works, you have to acknowledge that fact…as distasteful as it may seem.

“Sam, are you saying that prosecutors do not really care about issues of Justice…that they are just engaged in a game?”

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Various of my recent Attorney Sam’s Takes have led us here. We have discussed DCF and police investigations. We have discussed Clerk Magistrate’s hearings which determine whether probable cause exists to issue a criminal complaint.

We all know that you need a lawyer when you are facing criminal charges in court. But, what about before then? After all, there are no charges pending against you yet…why hire a lawyer already?

You ask the local police officer and she tells you that, for the investigation or Clerk Magistrate’s hearing you do not need an attorney. You check out this daily criminal law blog and seem to be telling you that you should hire a lawyer before you even take one step out of bed in the morning.

Whether and when to engage the services of a criminal defense attorney clearly centers on what the attorney can do for you. Do you need to check in with a defense attorney each day as you close up your work until the next day? Probably not. But if you have reason to believe that your bosses suspect that you are “cooking the books”? Then I would answer differently.

“Won’t I look guilty if I hire an attorney before charges are brought against me?”

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Yesterday, we began discussing the plight of Springfield’s Anthony Perry (hereinafter, the “Careless Provider”, his girlfriend (or ex-girlfriend, depending on who you ask) and her young child.

To put it into the proverbial nutshell, the Careless Provider was watching his girlfriend’s 2-year-old son.

It was “Black Friday”…a day for significant deals at stores throughout the Commonwealth.

As revealed yesterday, Carless Provider has made many admissions (seemingly to whoever would listen) about the event. He has explained how those convincing commercials just made it impossible to pass these deals up. Further, employees of the store apparently did not have the TV that he really wanted, so they convinced him to stay a bit longer to get another one.

Meanwhile, the 2-year-old had been left alone in the car.

The girlfriend, apparently more interested in her son than the TV set, says she has broken off with him. He may face criminal charges. Law enforcement has not decided yet apparently.

Meanwhile, more statements from Careless Provider seem to be coming in.

A new spin on the event was that the child had not even been left in the car alone. According to WWLP reports, the police found Careless Giver at home with his TV and he denied the allegations. He claimed at the time that he had taken the boy into the store, but the boy got lost.

Well, the versions could be reconciled. Maybe the 2-year-old got lost in the store, went to the car and locked himself back in.

Anybody still wonder why attorneys suggest targets of investigations keep their mouths closed?

Attorney Sam’s Take on Child Neglect

As happens with Massachusetts domestic violence cases, if a child is anywhere around allegations of neglect, the Department of Children and Families (DCF) come a-calling.
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Do you find it somewhat ironic that, on the very day after the day we reserve for counting our blessings (Thanksgiving), we fall into a frenzy to go out and get more?

Well, that is apparently what the curiously named “Black Friday” is for. Folks go through all kinds of gyrations to save money on that oh, very special day. They start camping out in front of stores the night before to get a good place on line to go into shopping battle, they gladly spend money they never had in order to experience the joy of bargain-hood, they place their children at terrible risk…

“Wait, Attorney Sam’s Take, what was that last one?”

Well, that is what 34-year-old Anthony Perry of Springfield (hereinafter, the “Care-less Provider”) did last Friday. Springfield police say that he left a toddler in a car while he went into the bargain trenches to bag a big-screen tv. Then, his hunting done, he saw that the toddler had developed an audience.

An audience dressed in blue.

Realizing that they were also now looking for him, the Care-less Giver took off.

Eventually, of course, he was found. They pretty much always are.

What he had done, while not exactly domestic violence, a criminal offense.

He gave an interview to the Boston Herald after the dust settled. He told the paper that, “I can tell you right now I am going to think about this forever…This may be a top story for you today. This is going to be my top story for the rest of my life.” He admits making the “mistake” of leaving the toddler inside the car.

The media was not the only folks the Care-less Giver spoke to. He also gave statements to the Springfield police who were investigating the matter. That’s where it also came out that it was not even his kid!

He admitted that he left his girlfriend’s 19-month-old son bundled up outside a Big Kmart for more than an hour while he went in to score a 51-inch Samsung plasma TV for $479 Continue reading

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