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It has become an all-too familiar part of domestic relationships. It does not matter if those relationships are romantic, paternal or even simply housemates. For years, domestic violence was ignored by society. Today, it is not only not ignored as a potential protection…it is often used as a sword to use against one’s closely tied enemies.

But that is for another day. Today, Attorney Sam’s Take discusses what one should do upon learning that a restraining order has been issued against you.

The first thing you do is ignore the immediate impulse to call the person who got the restraining order to demand an explanation. You have just received a court order not to have contact with that person. As with most court orders…you disobey it at your peril. Jail-type peril.

Actually, there are two types of restraining order that this could be. One tells you to have no contact with the person who got the restraining order and the other one tells you to not harass that person. My advice? Play it safe. Harassment can often be in the eyes of the beholder! Do not contact the person.

The person who you should contact is a criminal defense attorney to advise you in the situation.

“Why a criminal defense attorney, Sam? I did nothing wrong. Is this a criminal complaint?”

No, not yet. However, these matters are often joined with a criminal complaint. Further, if you violate the restraining order, you will be arrested. Criminal defense attorneys are best suited to handle these matters and we do so on a regular basis.
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Sometimes, when it rains…it pours.

No, I am not referring to the present weather situation. I am writing about Mr. Richard Ford, a 56-year-old Georgetown gentleman who is now hereinafter referred to as the “Defendant”.

You see, the Defendant was being sought for allegedly violating a restraining order early Saturday.

The police found him, alright.

Unfortunately, they found him asleep in the driver’s seat of his vehicle, keys in the ignition, blood on his face and bloody napkins on his lap according to the officers.

The troopers unlocked the Defendant’s side door. This apparently woke him up and he is said to have begun to swing at the officers with his hands and feet. He also tried to hold tightly to the steering wheel as the troopers tried to remove him from the vehicle.

Prosecutors say that the struggle continued until the troopers finally handcuffed him.

Troopers say that they noted there was a strong scent of alcohol emitting from the Defendant but that he was speaking clearly. When asked to take a breath test, the Defendant refused.

That sounds like the wisest decision he had made that day.
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Boston’s Supreme Judicial Court has released a ruling in the case of a woman who had been convicted of murder.

The case dates back to 2003. Solange Anestal (hereinafter, the “Defendant”) was accused of plunging a 16-inch piece of glass into her boyfriend’s chest, causing his death. It happened in their Brockton apartment.

The defense was not that the Defendant did not do the stabbing but that she was temporarily insane when she did it. The jury rejected the defense and found her guilty. Accordingly, the court, the Honorable Superior Court Justice Richard Chin sentenced her to life in prison without the possibility of parole in 2007. That is the sentence in cases of Murder in the First Degree.

The Defendant appealed the conviction. Finally, today, the SJC has reversed the conviction and sent the case back to Superior Court for a new trial.

The basis for the reversal was that the court had improperly allowed the prosecution to introduce “highly prejudicial evidence” against the Defendant, including that the state had taken away her two children – a 6-year-old boy and an infant daughter – days before the killing.

The court also ruled that the judge made a mistake by not instructing jurors “as to the excessive use of force in self-defense that was supported by the evidence.”

Attorney Sam’s Take On Appeals And Reversals In Criminal Cases

Unlike in the case of civil trials, criminal trials can only be appealed by one side…the defense. There is no right of appeal given to the prosecution should the jury return a verdict of “Not Guilty”.
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Often, a trial is like a Broadway play; it is, after all, a real human drama. Especially in the case of criminal trials.

One of the tricks of the trade, in both disciplines, is to manage suspense. Call it window dressing or call it crucial supporting evidence, but prosecutors sure seem to be setting the stage for the new feature presentation of the re-trial of the Mattapan Massacre murder trial.

This time, only one man stands in the prosecution’s hot seat….Dwayne Moore (hereinafter, the “Defendant”). This time nothing can be left to chance. This time, the Commonwealth gets to shift the burden of proof onto two, not only one like last time, main witnesses.

You see, the Commonwealth’s star witness last time was a gent who admitted to being in on the planning of the drug robbery. However, despite independent evidence to the contrary, he claimed to have stayed around just long enough to inculpate the two defendants and then conveniently left before the shooting started.

Apparently, the jury did not buy that beyond a reasonable doubt.

Fortunately for the Commonwealth, though, one of those severely injured, yet not quite killed, in the shooting has changed his testimony from the first trial so that he may just be able to help the prosecution get a conviction in time. The witness, Marcus Hurd (hereinafter, the “Witness”) testified in the first trial that he could not identify the man who shot him.

Guess who has changed his testimony.

So, now there is new hope for the prosecution that the original star witness plus the Witness, with his new story, will be enough to prove its case beyond a reasonable doubt.
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So, how was your halloween experience this year?

Well, no matter how good or bad it was, you probably had a better time than Chelsea’s Miguel Antonio Rivera, 35 (hereinafter, the “Defendant”).

Let’s put it this way…instead of candy, he was given the Commonwealth bracelets of shame. Then, after his subsequent bail hearing, he was ordered held on $200,000 cash bail.

The Defendant’s road to incarceration began in East Boston. According to law enforcement, state and Boston police officers were working off a tip which led them to the Defendant and another man, 49-year-old Santa Cruz of Norwalk, Conneticuit (hereinafter, the “Driver”).

Prosecutors say that the Boston police were doing surveillance on Sumner Street when they saw the black minivan with Maryland plates parked on the wrong side of the road and then make an illegal turn after picking up Rivera.

A pair of state troopers are said to have approached the vehicle, demanding the occupants to get out.

The Defendant, the passenger, refused to get out and, according to the police, instead tried hiding a duffel bag inside one of the van’s compartments before the troopers pulled him out.
Inside the bag, police said they found 15 wrapped bricks of heroin, weighing just under 43 pounds. Authorities price the bag’s content as worth about Five Million Dollars.
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Last night, I dreamt that I was representing a gentleman who had been accused of murder. His name was Kyle Killer. In the dream, we were heading off to trial. You know…the trial is the place where the government has to prove each element of every crime charged beyond a reasonable doubt. Unless and until they do that, or so the judge advises juries, the defendant is considered innocent.

As Kyle and I entered the courthouse, we noticed the court calendar posted to the wall. On the calendar, the day’s pending matters were written. We looked under “K” and read the caption for Kyle’s case. It read “Commonwealth vs. the murderer Kyle Killer“.

Kyle looked at me in disbelief. “They already have me convicted”, he said.

Having no clever retort available, I woke up.

Ok, so I did not have that dream. Instead, I woke up to another matter in which we have accepted that any presumption of innocence is understood to be a farce. While he has not been convicted of any of the crimes pending (or newly dismissed upon his return to Massachusetts), the media accounts relating to the case already have him convicted as a “mobster” and the “former leader of the Winter Hill Gang”.

Obviously, once again, Attorney Sam’s Take is referring to the case of James “Whitey” Bulger. His attorneys are moving the court once again for more time to prepare for trial.
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Sometimes, in the criminal justice system, timing is everything.

Waltham’s Michael Cammisaro, 57, hereinafter, the “Defendant”) is now contemplating that lesson with perhaps a few bruises to keep him company.

You see, at around 11:00 this morning, the Defendant decided to take the ‘T”. He went to the Park Street MBTA Station. What happened next is actually caught on video, However, objective truth is not for you, we have the law enforcement description of what happened.

According to Transit Officer Luis Feliciano, he too was entering the “T”. He tapped his “CharlieCard” to enter the fare gate and suddenly had rather close company. The Defendant was suddenly following closely behind him.

The officer says that he was not sure whether the Defendant was trying to evade the fare or pickpocket him. He says that he turned around to “inquire” but was suddenly shoved by the Defendant.
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Well, after a day’s absence due to a loss of power thanks to Hurricane Sandy, Attorney Sam’s Take is back to daily postings.

You might wonder, by the way, how the criminal courts, and Massachusetts crime in general, deals with such weather events. Does everything stop? Do the courts, like the police, have to remain handy in case the need arises?

As usual in criminal justice…yes and no.

This weekend, as the media basically warned us that Hurricane Sandy, the “Frankenstorm” could end life as we knew it…various businesses and agencies had to decide whether to close. Our president and local officials told us all to keep off the roads and that we would be in a state of emergency. This was good enough to keep most law-abiding citizens off the street. However, the courts are not considered among that ilk. After all, Justice never sleeps…or so they tell us.

Anyway, by Sunday night, those who were supposed to serve jury duty on Monday were called off. All non-essential government workers were also told to stay home. However, judges, court staff and attorneys who are due in court are not considered “non-essential”. Therefore, we were still on the hook. As are our clients who must also show up lest they risk a default warrant.

Finally, early Monday morning, the courts decided that they would close at noon for 24 hours, opening again today at noon.

At least one publically-watched trial was delayed due to Sandy. That would be the trial of Dwayne Moore. You remember Dwayne…he was one of two defendants who stood trial for his alleged role in the so-called “Mattapan Massacre” not so long ago. The jury acquitted the co-defendant, but could not decide what to do with Mr. Moore. The case made news again more recently when an eyewitness who said he could not identify Mr. Moore at the first trial suddenly decided that he could do so now. Apparently, the Commonwealth is willing to go with that…credibility be damned!
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Yesterday we discussed the recent car-stop-turned-drug-bust in which two people were arrested. The driver seems to have been arrested for driving without a license while the passenger (hereinafter, “Mr. Stoner”), was arrested for the usual jitney of drug possession crimes.

Once this amount is seized, not to mention a scale and money, the assumption is that the possession was for the purpose of trafficking, not simply earning Mr. Stoner’s name.

Attorney Sam’s Take On Possession And Criminal Charges

One of the first things an experienced criminal defense attorney does upon hearing of a case like this is to look at the stop itself. Was it a legal stop? What, if any, evidence could be suppressed.

We discussed that yesterday.

While there are still many details in the matter about which I do not know, there are a few potential trial strategies already apparent.
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Regardless of what you thought would happen after Massachusetts decriminalized marijuana…law enforcement continues to look for it. When a lot of it is found, well, that’s when police take a bow.

Even if it is found totally by accident.

Like the new Human Trafficking statute about which we have been talking earlier this week, there is still a way for police to tout the discovery of marijuana as a “win”. This is especially true when money is recovered as well as a large amount of the drug.

Let’s take, for example, the case of the 31-year-old Boston man ironically named Thomas Stoner. He was stopped in a routine traffic stop in Cambridge on Monday and police say they discovered more than they expected. They found a pound of marijuana and more than $1,000 in the vehicle he was riding in.
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