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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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This week, we have discussed the endings of a few high-profile criminal trials. We discussed the New Jersey Rutgers Cyber-Bullying case, the Mattapan Massacre Murder case and a homicide retrial in Lawrence.

All three trials had something in common. The defendants did not testify.

The issue of a criminal defendant testifying is a much more complex one than you may think. Many people assume, “Well, if she has nothing to hide, why doesn’t she take the stand on her own behalf?” In fact, in most criminal trials, defendants do not testify. In all cases, juries are told that they cannot consider the reason such testimony never took place. They are also told that they cannot hold it against a criminal defendant that she did not testify.

Do juries consider it and hold it against the defendant anyway? You tell me.

Attorney Sam’s Take On Whether Defendants Should Take The Stand

After one of my jury trials as a young prosecutor in Brooklyn, I had an interesting experience., The jury found the defendant “not guilty” and then met the defense attorney and me outside the courtroom to discuss the case. This is, or at least was, allowed in New York. It is not allowed in Massachusetts.
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The juries in the Mattapan Massacre and Rutgers cyber-bullying/hate crime trials are deliberating, they are not the only ones. The wheels of Justice grind on…for better or for worse…every day. In Lawrence Superior Court, for example,another jury deliberates.

The jury is the second to hear this case. It is the retrial of former Lynn gentleman Jerome McNulty, 34, (hereinafter, the “Defendant”). The Defendant is charged with stabbing his girlfriend to death outside her Salem apartment 11 years ago. The girlfriend, Linda Correisa, 27, suffered some 15 stab wounds to her neck, back and arms in the March 29, 2001 incident. Her 10-year-old daughter and 20-year-old baby sitter were also stabbed.

At the first trial, the Defendant was found guilty and, since, his criminal appeal was successful. The murder conviction relating to Ms. Correisa was overturned.

At the first trial, in 2004, the Defendant testified in his own behalf. He asserted that Ms. Correia came at him with a “butterfly” knife while they were arguing over another woman he was dating. He claimed that he then went into a dissociative state brought on by post-traumatic stress disorder, the result of a difficult childhood.

At the 2012 trial, the defense lawyer portrayed the Defendant as a man set upon by a series of women with knives (similar to a previous statement the Defendant had made). The prosecutor argued that the Defendant was cold and “indifferent” to Ms. Correia’s suffering as she begged for help, unable to breathe and bleeding from 15 stab wounds.
She also told the jury that the extent of Ms. Correia’s injuries shows that this was not a case of self-defense but of murder in the first degree, both through extreme atrocity or cruelty and premeditation.

Attorney Sam’s Take On Self-Defense And Prior Testimony

The previous conviction was overturned due to actions attributed to the police officer involved. The Defendant’s lawyer had called the police station where he was being held and left word to tell the Defendant not to make any statements. The officers failed to pass this message on and took the Defendant’s statement anyway. The prosecution, naturally accepting whatever the police gave it, used the statements.
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Sometimes this Boston criminal lawyer has to just chuckle, look down and shake his head. So many things in the criminal justice system are predictable. And yet, we, as a society, seem never to learn.

Or is it simply that we do not care?

Two local criminal justice stories dominated the news today. The Mattapan Massacre trial and the plight of Catherine Greig, Whitey Bulger’s girlfriend.

Let’s check the news on the Mattapan murder matter first.

Today was the day for closing arguments.

As expected, the “front lines” of the war of words was the credibility of the prosecution’s key witness, Kimani Washington (hereinafter, the “Witness”) as all three sides gave their closing arguments in the trial concerning the quadruple slaying in September 2010 that has been called one of the most horrific in Boston’s recent history.

If you read my 4-part blog on this subject from last week, you know the issues fairly well. If not, you may wish to read them. Suffice to say, however, the Witness was indisputably at the scene of the crime…at least for awhile. He claims that he left before the shooting began. Of course, there is evidence, including physical evidence, that would refute this position. However, the Commonwealth, in its infinite wisdom, decided to cast aside doubt (and/or common sense) and rely on the Witness’ word as to how everything “went down”.

Being faced with the difficult choice of either testifying as the state desired or standing trial for a crime that is punished by life in prison without the chance of parole, the Witness chose Option A.
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So…as the attorneys, parties, judge and jury rest up this weekend and get ready to final arguments, charge from the judge and jury deliberations, the Boston Criminal Lawyer Blog finishes this four-part discussion about this case in terms of credibility. Primarily, the credibility of a witness like Kimani Washington (hereinafter, the “Witness”)

In my last posting, we discussed how witnesses such as this one can force the prosecution to turn its own arguments on its head. For example, arguments that a prosecutor would scoff while arguing that a testifying defendant has a motive to lie will need to be changed in order to argue that the Witness, who also has a motive to lie is worthy of belief.

Of course, in the Mattapan case, this may not catch the prosecutor in such a conundrum. It would appear that neither defendant is going to testify. If a defendant does not testify, that defendant does not put his credibility in question.

“Why wouldn’t the defendants testify?”

That is the subject for another day. However, if they do not testify, the jury will be told that it cannot hold the silence against the defendant.

“So, doesn’t that mean that only one side of the story will be told?”

Not necessarily. Cross-examination is a critical tool for a defense attorney. This is particularly true if that attorney has experience and training in how to use it.

Through cross-examination, the defense can often get its point across to the jury without even having to put a witness of its own on the stand.
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Along with the Mattapan Massacre trial, another matter involving death is reaching the climax of its trial This one is from New Brunswick, New Jersey. It is the trial of Dharun Ravi (hereinafter, the “Defendant”). This was a matter that also hit the headlines when it took place. The would-be complainant of the matter is dead, although the Defendant is not charged with homicide.

The Defendant is the former Rutgers student who is accused of spying on his roommate…with a webcam. The roommate was gay and having a relationship with another man in their room. The roommate, not “out”, is said to have been so mortified by the experience, that he took his own life.

This case is not being tried as a “bullying” case, per se, although, when it took place, it renewed the national debate about bullying.

I am not sure if New Jersey is lucky enough to have an Anti-Bullying statute as strong as ours is. After all, there has to be a reason that the Commonwealth’s legislators were slapping each other on the back and falling over themselves claiming that the bill they had just passed, quicker than the wink of an eye, was the “strongest” in the country. Since the new law does nothing to stop the turmoil that is being faced each day in instances of alleged bullying…and, in fact, seems to merely confuse matters, it cannot be the effectiveness. It can’t be the penalties. There are none. But then, I suppose that is a legislative atrocity for another day.

Back to New Jersey…whatever laws it has.

We do know that the Garden State has criminal statutes against bias intimidation as a hate crime, invasion of privacy, and hindering apprehension. These are the charges which the Defendant is facing.
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The topic the Boston Criminal Lawyer Blog has been discussing over the past couple of days dovetails nicely with something we discussed last week.

The bottom line connection?

Credibility.

A witness’ credibility and the credibility of the attorney who calls that witness to the stand.

The jury in the Mattapan Murder trial that they are likely to receive the case next week. Prior to their deliberations, of course, there will be closing arguments by the attorneys who are trying the case.

Expect to hear the word “Rat” used any number of times when discussing the Commonwealth’s star witness, Kimani Washington (hereinafter, the “Witness”). In fact, you likely heard at least allusion to such a title during his cross-examination.

You see, in street parlance, a “rat” is someone who turns around and testifies against his co-perpetrators in return for a deal or more generous treatment. The more court-friendly term is “co-operating witness”. Such titles can bring on special privileges or penalties, depending on who is meting out such things. In a trial court, such as this, it is up to the jury to decide whether such a witness is worthy of belief.
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Here I am….bringing you bad news again. The Boston Criminal Lawyer Blog is saddend to tell you that you have been involved in a shooting. You and a few others went to try to conduct a simple robbery, but it did not go as smoothly as planned. You all had guns and you used them. You got away ok, but the police have come to your home.

To talk about the resulting murders.

The detectives tell you that five people were shot, many of them dead. You blurt out that you did not kill anybody and the police start saying something that is rather hard for you to believe.

Despite the fact that you have a criminal record long enough to wallpaper your room, the Detectives say that they know you are basically a “good guy”. You wouldn’t do this. Not you! On the other hand, they know you were there. They figure you left before the shooting began, though. They make it clear that if this is how it went down, you just have to help them get the “bad guys” who did the shooting and you can be a prosecution witness instead of a criminal defendant.

By the way, Murder One is punished by a sentence of Life without parole in Massachusetts.

What would you do?

Let’s bend our imaginations and assume that you agree to what they say and you identify the others who were with you, making sure you insist you left before the shooting ever started. A little time goes by, and suddenly one of the guns used that night turn up…in your house! Not only that, it has your brother’s fingerprints on it!!! Oh, did I mention that the gun matches bullets found in one of the homicide victims?

Is the gig up?

Well, you shrug and explain that your brother came in the other day, saw the gun (which you have never seen before), picked it up, said “nice gun” and put it back. That’s all.

Time stands still as you watch the agents of the law look at each other with straight faces. Then, they smile, shrug and each say, “Yeah, that makes sense. Sounds good to me!”
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As you probably know, the trial about he so-called “Mattapan Massacre” has been
going on in Boston’s Suffolk Superior Court.

The case involves a multiple homicide in which four people including a
2-year-old boy were killed and a fifth man was shot but survived. The event
took place on September 28, 2010.

Yesterday, there was testimony that a .40-caliber handgun which was linked to the Massacre was found in the home of the prosecution’s star witness, Kimani Washington (hereinafter, the “Witness”).

According to Boston police detective Martin Lydon two .40-caliber shell casings were found near the intersection where the shooting occurred.

Lydon said those shell casings matched a .40-caliber Iberia found by police in Washington’s family’s home at 45 Fowler St. in Dorchester. The Witness, 36, has already testified he participated in a drug robbery of murder victim Simba Martin, but left before shooting began.

Which is likely how he is a Commonwealth witness in this case instead of being on trial as a defendant.
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