Boston Criminal Lawyer Blog

June 1, 2012

Zimmerman’s Bond Revoked

A judge has ordered that George Zimmerman, the man charged with killing 17-year-old Trayvon Martin, return to jail within 48 hours after revoking his bond on the grounds that his wife, Shellie, misled the court. Zimmerman, who is pleading not guilty to the charge of second-degree murder and claiming self-defense, was accused of shooting Martin in February in the gated community of Sanford, Fla., where Zimmerman acted as a neighborhood watch volunteer.

According to the Miami Herald, Zimmerman’s wife testified that the couple had limited funds available and were unable to meet the $150,000 bond that had been set back in April. Prosecutors reportedly discovered that he raised $135,000 from a website he had set up for himself.
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May 30, 2012

Fatal Car Wreck Described by Police Officer as ‘Worst Crash I’ve Seen’

by Altman & Altman

As the trial for Aaron Duveau, 18, continues, Haverhill police officer Wayne Tracey testified today that the crash was “the worst he had ever seen in his law enforcement career.” Tracey was one of the first to respond to the scene on February 20, 2011 after, as authorities allege, Duveau drifted across the center line of a street and into oncoming traffic, colliding with a car driven by a 55-year-old New Hampshire man. The man died several weeks later from severe brain trauma.

Tracey testified that Duveau, who was 17 at the time of the crash, also appeared tired and “a bit sluggish” at the scene. He is now being faced with violating a new state law which criminalizes texting behind the wheel of a car when an individual has been injured during a crash. According to Essex District Attorney Ashlee Logan, Duveau sent and received four text messages in the three-minute period leading up to the collision.
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May 30, 2012

ATTORNEY SAM’S TAKE ON THE CRIMINAL JUSTICE PATH OF LEAST RESISTENCE

by Samuel Goldberg

Perhaps this posting should be entitled, “let’s put it this way…”. But then, I am a lawyer, so folks expect me to do things like answer a simple yes or no question with a 157 word response.

We have discussed the effects of public opinion on the criminal justice system many times. A couple of days ago, I was talking to a client about what might happen during a hearing and an old tried-but-true term leapt out of my mouth and into the telephone. By the time my brain caught up with it, I realized how descriptive it was of the judicial system, particularly when it comes to criminal justice .

And so it was that this Boston criminal lawyer rediscovered the concept of “the path of least resistance”.

In a nutshell, those five words capture the issue about which we so often speak. In this circumstance, consider public opinion to be the resistance indicated. The so-called path would be the path a case takes. Sometimes, that path is straight and well-paved. Sometimes, however, it is very windy and has many obstacles, holes, hills and other debris. This debris can be seen to slant and obscure parts of the path because of opinion, misunderstandings and prejudice. In short, the “resistence” is the media response.

After all, what can you expect from a system which places human beings in charge of finding “truth”?

Well, of course, it is more than that. Our system has developed a handicap in its search. Namely, it has certain potential threats which often inspire fear-based decisions on what “truth” is. We have discussed these many times. It is that “what if” complex involving the next day’s media accounts.

The perception of public opinion was never meant to decide criminal cases. That was supposed to be done by cool and fair-minded deliberation…not mob mentality. However, today, we are living in the era of intolerance and pre-supposing what the truth “must be”. Judges are investigated if they seem too pro-defendant (a bias on the other side is no problem). Parole Boards are disbanded and shamed if they release someone and something goes wrong. Politicians, including those involved in criminal justice, are “soft on crime” weaklings should they not show an assumption of guilt while we congratulate ourselves for having a presumption of innocence.

And so, we come to the criminal justice definition of following the path of least resistance. In other words, “What decision can I make that will not get me in trouble or even cost me my job?”

Unfortunately, it can be summed up in one word…”guilty”.
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May 23, 2012

RUTGERS STUDENT IS SENTENCED TO JAIL FOR WEBCAM BIAS CRIME

by Samuel Goldberg

We discussed this case during its trial. You may recall the criminal trial of Mr. Dharun Ravi, 2 years of age and hereinafter, the “Defendant”.

Initially, he was accused of bullying because he used a webcam to spy on his Rutgers roommate kissing another man. Shortly after learning about the recording, the roommate, 18-year-old Tyler Clementi committed suicide.

The tragedy was met by calls for the Defendant’s hide as his “cyber-bullying” was considered responsible for the death. There were even pronouncements of ‘murder” being bandied about.

Throughout my years as a Boston Criminal Lawyer, I have warned my clients that it is not really the conclusions made at the inception of a criminal investigation or arrest that will determine the result; it is generally what happens by the time the matter gets to trial. Indeed, things changed a bit by the time the Rutgers case went to trial.

At trial, the prosecution made it clear that it was not holding the Defendant responsible for his roommate’s death. Further, the charges did not include homicide, cyber-bullying or even bullying.

Instead, now it was a hate crime. A hate crime because the Defendant invaded his roommate’s privacy in a way which intimidated him, all because of his bias against gay people. The big issue in the case? Whether or not the Defendant was indeed homophobic.

In March, the jury found the Defendant guilty. Now, the New Jersey judge has sentenced him.

The court sentenced the Defendant to 30 days in jail He also placed the Defendant on three years of probation. The judge declined imposing a stiffer prison term, which could have included up to 10 years in a stricter prison. He also did not recommend that the Defendant, a citizen of India, be deported. The Defendant was, however, also ordered to get counseling and to pay $10,000 toward a program to help victims of bias crimes.

Attorney Sam’s Take On Hate Crimes

The prosecutions of crimes that are regarded “hate crimes” underscore the fact that the j rules by which we live can and do change, depending on the circumstance.
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May 22, 2012

ATTORNEY SAM’S TAKE ON THE MIND AND STATUS OF THE CRIMINAL TRIAL JUROR

by Samuel Goldberg

The Boston Criminal Lawyer Blog has repeatedly told you that the participants of the criminal justice system…even the judges…are merely human beings. .

However, sometimes appropriate behavior for some folks is inappropriate for others.

For example,let’s say that, while driving home one evening, you saw someone who you believed to be a drunk driver plow into a tree. As the police respond to the scene, the driver gets out of his car and starts verbally accosting the tree with protests like, “Why don’t you watch where you are going?!”

Finding this behavior rather odd , you might decide to tweet or blog about the experience.

Now let’s add to the scenario that you are a Superior Court judge. Do you still think it is such a great idea to post the adventure?

In fact, it would not be. There is a standard for the behavior certain professions demand. It might seem “unjudicial” for a judge to be spouting off his or her views about such instances. Similarly, you would not expect a judge to start tweeting or blogging about behavior he witnessed attorneys engage in during court proceedings.

In a trial, be it civil or criminal, a jury is, in fact, a judge. Juries generally decide the facts-at-issue. This is why jury selection exists. While human beings do have their prejudices, it is important to do all that is possible to select those who can be fair and impartial in the case upon which they sit.
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May 16, 2012

MASSACHUSETTS JURIES ARE WARNED ABOUT POSTING STATEMENTS ON SOCIAL MEDIA

by Samuel Goldberg

The Massachusetts jury is the subject about which we left off last week. As this week began, the subject matter has become fodder for not only the Boston Criminal Lawyer Blog, but also for the main media and Boston’s Appeals Court.

The immediate issue is, in some respects, a new one. Yet, the theory behind it is anything but new. However, the admonition I had given you in previous blogs comes to mind. Remember that all participants of the criminal justice system are merely human. That includes juries. When you add to the mix that people are, by nature, curious, and that most jurors try to “do justice”, the issue is inevitable.

Jurors in both civil and criminal trials are routinely told not discuss matters in which they are sitting and to avoid any publicity about said case. This is because the jurors, while still holding onto their common sense and life experience, are supposed to return a verdict based only on the evidence when was admitted in the case together with the law as the judge gives it to them.

Or, rather, their perception of those things, to be more realistic.

Anyway, in recent years, Massachusetts judges have added the existence of the internet stories and research to the laundry list of things jurors should avoid. Now, the Appeals Court has told judges that they need to do more to stop jurors from, not only researching, but also posting information about cases on Facebook, Twitter and other social media sites.

The new instructions came in a recent ruling in a larceny case in which two jurors posted comments on Facebook, which then elicited sometimes derogatory responses from the jurors’ Facebook friends.

Examples?
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May 10, 2012

BOSTON FEDERAL JUDGE WOLF RULES ON DEATH PENALTY IN MURDER CASE; GOVERNMENT TO APPEAL

by Samuel Goldberg

The Boston Criminal Lawyer Blog is often complaining that Constitutional rights and criminal justice incidentals like the presumption of innocence are often ignored once a person is accused of a crime. I stand by those complaints, but I often add the proviso that this tends to change somewhat when the matter goes to trial.

This is where these rights get taken a bit more seriously. Particularly after the trial if it appears something serious went wrong.

The case of Gary Lee Sampson (hereinafter, the “Defendant”) has hit the media again. The Defendant was accused, and convicted, of the murder of three people in Massachusetts and New Hampshire during a bloody killing spree.

After the jury found the Defendant guilty, it sentenced him to death. While the Death Penalty does not presently exist in Massachusetts state law, it still is very much alive in the federal justice system..

Before our government could kill the Defendant, however, a little bug in the criminal justice ointment came to light. There existed a real question as to whether the Defendant had received a fair trial.

After a hearing, Boston United States District Court Judge Mark L. Wolf found that a female juror, whom His Honor would only identify as “C”, “persistently committed perjury” when she did not disclose during jury selection that she had been a victim of domestic abuse. Had she simply been honest, Wolf said, “She would have been excused for cause.”

Today’s order affirms a decision Wolf made in October, and potentially lines Sampson up to be retried, but only to determine if he will be executed or condemned to a life behind bars.

“A second hearing to determine whether Sampson should live or die will be lengthy, expensive, and anguishing for the families of Sampson’s victims,” Wolf said. “It is, therefore, appropriate to give the First Circuit the opportunity to decide whether the decision that a second sentencing hearing is legally required is now appealable.”, Wolf wrote.

In other words, the prosecution could appeal the judge’s decision.
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May 8, 2012

BURLINGTON IS SCENE OF GRUESOME DOMESTIC VIOLENCE TURNED HOMICIDE CASE

by Samuel Goldberg

…And the Boston Criminal Lawyer Blog begins the week with a bit of horror out of Burlington, Massachusetts.

According to authorities, Christopher Plantedosi (hereinafter, the “Defendant”) was the featured player in this particular piece of massive ugliness. He is said to have pursued his ex-girlfriend, Kristen Pulisciano, into their daughter’s bedroom and having stabbed her 34 times. The homicide was witnessed by someone who actually was not there.

The witness was someone with whom the daughter had been video chatting with on an iPad.

The details were delivered by the Commonwealth at the Defendant’s arraignment yesterday in Woburn District Court. The prosecutor explained that said witness both saw and heard portions of the attack, including Ms. Pulisciano pleading, “Chris, please stop, I love you,” and the Defendant saying, “You’re going to die.”

Ms. Pulisciano’s body was found at about 6:45 p.m. Thursday at her home on Forbes Avenue.

Prosecutor Nicole Allain gave more gruesome details. She argued that the Defendant showed up at the home at 6 p.m., while the 15-year-old-daughter was in her bedroom video chatting on an iPad with a friend. The girl heard her parents arguing in the kitchen and went to see what was wrong. Seeing her father with a knife, she asked, “What, are you trying to kill Mom?”

The cold answer was forthcoming.

The Defendant then chased Ms. Pulisciano, who fled to her daughter’s bedroom. The Defendant is said to have kicked down the door and attacked Ms. Pulisciano. The person the daughter had been video chatting with was still on the line as he plunged. It was not clear where the daughter was during the attack.

The Defendant is described as having used both a meat cleaver and a knife in the slaying, Allain said.

As background, the Commonwealth indicates that the Defendant and Ms. Pulisciano had a long-standing, live-in relationship that had recently become problematic. Over the course of their relationship, there had been prior allegations of violence made by Ms. Pulisciano against the Defendant. The Commonwealth also revealed that Ms. Pulisciano had tried to commit suicide in days prior to the attack and had been released from a mental health facility the day before the attack with prescriptions for antidepressants and sleeping pills.

Making the case just alittle more macabre, the Defendant was taken into custody at the Weston State Police barracks on Friday. At the time, he apparently had two handwritten notes describing details of the attack.

The Defendant was held without bail.

Attorney Sam’s Take On Domestic Violence, Murder And Insanity

In many ways, this seems to be the classic fact scenario which brought us to the point where we are today. I am referring to how serious any allegation, no matter how big or small, of domestic violence is treated by the Commonwealth. It is also why, in most cases, once the original complaint is made, prosecutors are extremely reluctant to drop charges when the complainant comes in and explains that she wants to withdraw the complaint.
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May 4, 2012

ATTORNEY SAM’S TAKE ON PERSPECTIVES IN THE CRIMINAL JUSTICE SYSTEM (Part Three-B)

by Samuel Goldberg

One will never be successful in understanding the criminal justice system, be they lawyer or client, until the varying and conflicting perspectives are understood. The judge, police officer, prosecutor and defense attorney approach the same case from different viewpoints. Therefore, what is “right” to one is not necessarily “right” to the others.

It is therefore not usually a question of the somebody intentionally doing the
“wrong” thing. It is not a simple equation of good vs. bad. As such, testimony which conflicts with other testimony need not be a lie.

Ever play a game of “telephone”? We seldom witness and remember facts. We remember feelings and facts.

As much as math and I seldom get along, let’s put it thius way:

Feelings + facts = perspectives

The prosecutor assumes that the defense is guilty. After all, her witnesses, particularly police officers, said so. Police officers are held to a higher standard and so the assumption is they always live up to that standard and never lie, never mis-interpret.. They are never dishonest. The defendant, whether or not she can convince a jury, is, in fact guilty. Nothing else makes sense.

The defense attorney is charged with doing all he can, within ethical and legal guidelines, to defend the defendant. He cannot assume that the witnesses against his client are telling the truth if his client tells him that they are lying. Sure, a defense attorney has a gut reaction to that client as to how reliable he may be…but we are only human and humans tend to see what we want to see. After spending a certain amount of time in the system, one experiences instances where police officers are in fact undeniably lying. Not all. Not always. But it happens. A lot. But then, it is the officer’s word against yours…and who is going to believe you? You are a defense attorney!
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May 4, 2012

OHIO DEPUTY SHERIFF FIRED FOR HOSING “DANCING WITH THE INMATES” (Part Three-A)

by Samuel Goldberg

He is not from Boston, but I am willing to bet that when Dominic Marrtucci (hereinafter, the “Deputy”) left home to go to work at Ohio’s Summit County Sheriff’s Office on April 10 or 11th, he did not go with the intent to do something stupid.

Or actionable, for that matter.

However, that is what he is alleged to have done. And as a result, he has lost his job.

According to pending allegations, the Deputy ordered five jail inmates to dance to a song by Usher in exchange for privileges such as using a phone or microwave, according to the sheriff’s office.

The inmates were apparently locked up in a disciplinary area. Every show needs an audience, of course, and so the Deputy is said to have invited colleagues to watch.

After the resulting internal investigation, the 35-year-old Deputy was fired this week as the show violated department policies by mistreating inmates, acting inappropriately and having a cellphone in the jail, apparently used to play the music.

According to reviews, one inmate did “the worm” as the Deputy played Usher’s “Yeah!” while another did the robot so that he could use a phone to contact relatives after a family member’s death. The internal report also claims that inmates were asked by the Deputy to do a “bump and grind” routine if they wanted a recently removed microwave returned to their unit.
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