Boston Criminal Lawyer Blog

The evidence seems to keep piling up for poor ol’ George Zimmerman (hereinafter, the “Shooter”) and, yet, there is still no law enforcement action about it. This man is getting benefits of the doubt that my clients would kill for.

No pun intended.

Let’s check in on the latest in the Trayvon Martin (hereinafter,”Shot”). See if you can find the missing piece of legal common sense before I reveal it.

As you know by now, on February 26,2012, the Shooter fired his gun into Shot, killing him.

According to the Shooter, he was on “patrol” on a neighborhood watch “detail” when he spied Shot walking around in the area. Apparently believing he had developed a keen sense in people-reading, the Shooter could just tell Shot did not belong in that area. Therefore, he was clearly a threat.

The Shooter called the police and reported the strange-seeming Shot. The police told him that they would handle it and not to follow him. And so, naturally, the Shooter followed him.

There was finally a confrontation between the two. The Shooter says that he kept asking Shot what he was doing there and Shot kept asking him why he was following him. The Shooter says that Shot assaulted him, without a weapon, and so the Shooter shot him. Dead.

Shot is no longer around to give his version of the facts. However, in this case, there is an unusual amount of independent evidence. No, I am not talking about the scores of people who knew Shot and insist that he would never attack anyone. I am not even talking about the myriad of politicians and publicity-seekers who are grabbing the spotlight to weigh in on a criminal matter about which they know little. I am referring to actual witnesses who heard what the shooting take place. I am talking about recordings which reflect what took place. And I am talking about pictures and video which do not seem to reflect what the Shooter claims took place.
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There has been another attack in Cambridge.

The most recent assault involved a woman in her 20’s. She was attacked near the intersection of Ellery and Harvard Streets. Just one day earlier, and only three blocks away, another woman around the same age was knocked unconscious at the intersection of Kirkland and Trowbridge. The thief robbed her of her iPhone and purse.

Apparently, the attacks occurred at night when the women were walking alone. They were also both wearing headphones.

The police opine that the women were less alert to their surroundings because of their wearing of the blaring headphones. Further, they say that such earbuds alert potential thieves looking for high-priced electronics to steal.

Police are warning women walking alone at night not to be wearing headphones and to be aware of their surroundings.

Police also say they cannot be sure if the incidents involve the same attacker, but the victims’ descriptions are similar, to wit: a light skinned black or white man in his 30’s.

Attorney Sam’s Take On Being Careful Out There

This story, which led the news Wednesday morning, reminded me of two other fine, albeit somewhat old, pieces of media. Both were from television.
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Hmm… I wonder if you see a connection between two stories in yesterday’s news.

First of all, it seems that the number of Massachusetts prison inmates granted parole has dropped significantly this past year. You may recall that, during this year, the state Parole Board was overhauled in the wake of a paroled gentleman murdering a Woburn police officer after release.

According to prisoner advocacy groups, the number of inmates released on parole in 2011 was 435. In 2010, the number was 1,028.

Meanwhile, the new board is having problems of its own. It is dealing with a backlog which it conveniently blames on the prior Parole Board.

An example of the result of this backlog? Well, some inmates were actually granted parole by the parole board since last April. The only problem is that none of these inmates, nor their families, have been advised of that fact.

Don’t worry…the Board does not play favorites. Those whose pleas for parole were rejected have also not been so notified.

Prisoner advocates say the delays, coupled with stricter standards for releasing other inmates on parole, have contributed heavily to a 58 percent drop in the number of inmates who are released under parole supervision putting upward pressure on the state prison population.

“The total effect is more people in prison overall, and fewer people released under supervision,” said James R. Pingeon of Prisoners’ Legal Services, a group that provides representation to inmates. “It’s doubly bad.”

Now, the Parole Board chairman, recently-former Assistant District Attorney Josh Wall, defends his agency’s performance, arguing that the new board is simply being more careful while coping with a shortage of resources.

He attributed the delays in notifying inmates about their parole requests to a backlog of cases left by the previous board, more rigorous scrutiny of parole applications, and a staff shortage.
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With all due respect to my fellow professionals, I sometimes think that if you would read the Boston Criminal Lawyer Blog more often and take its message to heart…maybe we would not be looking back and saying “Whoops” so often.

The jury came back last week in the New Jersey case of Dharun Ravi (hereinafter, the “Defendant”). Actually, I suppose it should be known as the “Tyler Clementi trial” because Mr. Clementi and his death over-shadowed the trial…although the Defendant was never charged with his death.

Before we discuss the verdict, I would like to remind you of the first days that this matter came to light. We were still in the anti-bullying haze of the Phoebe Prince case.

The root of all evil was The Bully. While mis-reported “facts” abounded, the crusading local district attorney (now, ex-district attorney) grabbed headlines by indicting the kids involved in alleged bullying incidents. The Massachusetts legislature flew into a rushed frenzy, perhaps to not be undone, and passed an anti-bullying statute that they proclaimed the “toughest” in the country.

Apparently they had very little faith in the rest of the country’s strength because not only did the statute do nothing and have no teeth, it was also a vague omni-directional attempt to aid others in the passing the buck and confuse the situation further. It did give us a new holiday, which is “No Name Calling Day” which is to be celebrated annually.

I missed that particular parade this year. I did, however, find that last piece of nonsense kind of ironic given they were claiming the law prohibited any name-calling whatsoever. But, hey, that’s just me.

So, in the middle of Massachusetts officials’ jumping through semi-creative hoops to put an end to all bullying, New Jersey had its incident at Rutgers University. Again, before people bothered to get their facts straight, various versions of the story filled the airwaves and internet.

The most common version of the story, albeit apparently untrue, was that the Defendant had a roommate who was gay. Learning that his roommate was about to have a rendezvous in their room, the Defendant thought it would be a great idea to set up a webcam and broadcast the two men across campus. As, after the fact, Mr. Clementi (said roommate) found out about the broadcast, he took his own life.

Screams of “Murder!” and “Bully!” filled the air.
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Before we go into other reasons that a defendant may decide not to testify, there is one thing I should make clear. Whether or not to testify is nobody’s decision than the defendant himself. It is not the decision of the defense attorney, nor the judge and certainly not the prosecutor.

While it is clearly advisable that a criminal defendant consider his lawyer’s advice, the right to testify includes the right not to testify and that right belongs to the defendant and nobody else.

There are a number of things to consider when deciding whether the defendant should testify. We began discussing them yesterday.

Sometimes, regardless of what the substance of the testimony is the defendant can simply come off poorly. Unlikable even. If so, this will not help when the jury deliberates and harkins back to its perceptions made during the trial.

People tend to not trust people they do not like. Further, sometimes, what the jurors wish to find colors their verdict. In other words, the fact that a jury wants to acquit the defendant can sometimes make the difference.

I believe it was Benjamin Franklin who said that it is better to keep ones mouth shut and look foolish than open it and remove all doubt. That theory fits in here.

Another thing to consider is what the defendant is even planning to say on direct examination, when it is his own attorney asking the questions. Is it worth the risk? Does it open the door to material the defendant wants to avoid?

“what do you mean? What door?”

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