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You have been charged with a crime.

You went to court, either for a Clerk Magistrate’s Hearing or for your Arraignment, without a lawyer. You figured the court would give you a lawyer and you would be home free. After all, maybe you know you did not do what they say you did. Perhaps you figure they will never be able to prove it if you did.

As you walked confidently into the courtroom, you figured, “I will just tell my side of things and this pain in my schedule will be over.”

Well, chances are, if you went to a Clerk Magistrate’s Hearing, you walked out muttering something about being “railroaded”. The Clerk listened politely to whatever the complainant had to say, although you knew that said complaint was lying badly. When you told your side of things, the Clerk simply shrugged, found probable cause and told you that you would receive notice of your Arraignment in the mail shortly.

If it was an Arraignment, some attorney you have never met before stood up on your case knowing next to nothing about either you or the allegations against you. Maybe there was a bail hearing and you are now locked up. Perhaps the judge told you that you do not qualify for court-appointed counsel and will have to either go out and hire an attorney by next time or represent yourself.

Perhaps you have now learned…you do not want to simply represent yourself.

Attorney Sam’s Take On Why There Is A Rush To Retain An Experienced Criminal Defense Attorney

If either of the scenarios above occurred, you are already a few steps behind where you could have been in your new criminal justice nightmare. The fact is that, upon learning you were being charged with a crime, you were already behind the prosecution. The prosecution had already conducted its criminal investigation and decided on the evidence against you and the charges you will face.
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The Boston Criminal Lawyer Blog was discussing evidence. How much is necessary to find a defendant guilty. What kind of evidence can be admitted and when.

That kind of thing.

Putting aside the issue of actual character evidence, bad acts and prior
convictions are often admissible to impeach a witnes’s credibility.

“Isn’t that to show the witness has a bad character?”

Well, technically, no. It is an example of a legal splitting of the proverbial hairs. For example, this evidence can not be introduced into evidence to show that the
witness has a propensity to commit such bad acts. It is only admissible, in
most cases, to be considered by a jury when judging credibility.

“So, isn’t that the same thing as showing that the witness is not worthy of
belief because he or she has a bad character? Bad character because he or
she commits bad acts?”

You might see it that way, in every-day logic, but according to the law…not really. It is just
there as information the jury may want to consider when judging credibility.

Period.

“Ok…is that the only reason for which such evidence can be admitted into
evidence?”

No. There are, as usual, exceptions to the general rule. For example, let’s
say a criminal defendant is on trial for Kidnapping and rape. The Commonwealth contends that he lured an unsuspecting lass to him by advertising that he was giving away a free puppy. It turns out that there were three previous allegations against him for rape and, each time, he allegedly did it by luring
his alleged victims by an ad stating that he was giving away a free puppy. He
was convicted on those previous matters, by the way.

“Doesn’t the fact that he was found guilty in those cases mean that this
evidence automatically can come in?

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There is in the old adage in the practice of law. It reads, “If the facts are on your side, pound on the facts. If the law is on your side, pound on the law. If neither are on your side, pound on the table. ”

Perhaps this gives some glimpse into the “chicken and egg” issue of how much evidence is enough to win a case. Although I have handled many civil cases, my expertise is the practice of criminal law. Therefore I will restrict my conversation herein to criminal trials.

We spend a fair amount of time in the Boston Criminal Lawyer Blog talking about law. We talk about the applications of the law, the changes in the law and the need to have experienced criminal defense attorney on your side who understands the law. Today, let’s talk about the issue of evidence.

Sometimes, I am horrified when reminded how little people understand about evidence. I’m not so shocked to hear that they don’t understand all the rules of evidence. How would they when they have never had to deal with it before? But I am amazed to learn that people actually think that a mountain of evidence is necessary in order for the Commonwealth to win a criminal trial.

This is not true.

Many cases, particularly sex crimes, come down to a “he said – she said” issue. In such cases, I am often advised by a prospective client that there is no way the prosecution can win because they only have her word for it. I then have to break the news that her word is plenty if the jury believes her word beyond a reasonable doubt.

“But Sam, what if she is a bad person? Surely, when you show the judge that he will dismiss the charges.”

No such luck

“You mean to tell me that it doesn’t matter at all about the so-called victims history?”

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Here’s a sweet little tale for Valentine’s Day.

Allen M. Stilkey, 40, of Douglas, (hereinafter, the “Defendant”) was a married man until very recently. You see, he is alleged to have had a incident last week.

The result? His wife is dead and he is charged with her homicide.

The Defendant was no weakling. In fact, the 230-pound, 6-foot man was an arm-wrestler who, in 1995, was the International Arm Wrestling Federation Arm Wrestler of the Year.

According to the Commonwealth, the Defendant and his wife were engaged in a very heated argument. The argument is said to have included broken furniture and glass. A witness purportedly told police that “Allen Stilkey was threatening to kill her” and that Lisa Stilkey, the wife, had claimed her husband “had been beating and choking her for several months.”

Further, the Commonwealth indicates that the Defendant was threatening to killer her during a phone call that night.

The Commonwealth claims that the Defendant was on the first floor, when his wife ran to the second floor out of fear. She then threw a pillow out of the window and then jumped out herself. She was rushed to the hospital and declared dead. As she was en route, the Defendant allegedly barricaded himself in the home and refused to let police in. The police got a warrant and entered the home on Saturday, where they found evidence that “a violent struggle had occurred in the home.”

The Defendant was arraigned in Uxbridge District Court where he has pleaded not guilty to charges of manslaughter, assault and battery and threatening to commit a crime.

While the Commonwealth requested bail in the amount of $500,000, the court decided to hold him without any bail instead.

Attorney Sam’s Take On Manslaughter And Domestic Violence

While this case would likely be prosecuted as a homicide in any event, the fact that it is a domestic violence incident pumps up the public attention. For example, a criminal defendant facing manslaughter charges would not necessarily be held with no bail. However, I can tell you that the courts are getting tougher and tougher regarding the treatment of domestic violence cases…even if said charges are actually dismissed!

But that is a mutilation of fairness for another day.
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The Boston Criminal Lawyer Blog has discussed many stories which demonstrate that, particularly with new technology, law enforcement has such tools in its arsenal that attempting to out-race them is futile.

Well, Boston police made an arrest on Friday night which shows that the reverse is not necessarily true.

Twenty-two year old Dexter Winnie (hereinafter, the “Defendant”) was pulled over by a plain clothes officer for failing to use his turn signal. Officers then searched the Defendant and his car after noting the smell of marijuana. The search turned up marijuana, a knife, and brass knuckles.

The Defendant was arrested on weapons and drug charges, as well as receiving the original traffic citation.

During the stop, the officers report that they could hear a Boston Police Operations broadcast coming from inside the Defendant’s car. It turns out that the transmission was coming from an application from the Defendant’s phone.

So they seized the cell phone too.

Attorney Sam’s Take On Search, Seizure And Pot

One wonders what the Defendant heard during the moments preceding his car being stopped. Clearly, it did not give him enough warning to be wary.

Perhaps the facts of this case will all come out someday. If it does, it is unlikely to be because of the trial of the matter.

“Why is that, Sam? Because the Defendant was caught with the contraband and so he has no choice but to plead guilty?”

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In case you were not aware of it, the police do not always simply lay in wait of alleged criminal activity. Sometimes they go out and target certain types of crimes. Such incidents are usually called “sweeps” and have fancy names for the operation.

Today’s story involves a sweep of alleged gang members.

In Holyoke, law enforcement arrested 20 people in a gang and drug sweep. It was a multi-agency criminal investigation

The sweep took place on Thursday. Hampden District Attorney Mark Mastroianni announced that said suspects face a variety of drug charges. Further, six people who were already in custody face additional charges. Finally, arrest warrants were issued for four more people who remain at large.

The DA also announced that the criminal investigation into what he referred to a “La Familia gang” also resulted in the seizure of 3,300 bags of heroin, two guns and cocaine.

The DA says the sweep was part of an ongoing effort to interrupt the illegal drug trade in the city.

Attorney Sam’s Take On Sweeps, Gangs And “Mere Presence”

You do not need a Boston Criminal Lawyer to tell you that when these sweeps take place, anyone alleged to be carrying any drugs or guns are going to be arrested. The chief issue is likely to be whether the police had the right to the search and seizure involved. That is an issue we have discussed, and will discuss further, in future blogs.

Today, though, let’s discuss other issues that this story brings up.
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As you know, if you are a daily reader, the Boston Criminal Lawyer Blog often finds fault with the criminal justice system. Frequent targets of my wrath are law enforcement officers and district attorneys.

Well, I guess that makes sense. I am, after all, a criminal defense attorney.

However, the fact remains that, in general, I have a great deal of respect for cops. I just think that it is important to remember that, while given certain privileges and honors, we sometimes fail to remember that they are, after all, human beings. Human beings, all of us, have faults and weaknesses. What frustrates me is that the rest of the public, as well as judges and prosecutors, overly follow what is represented by police officers…sometimes blindly.

But that is an argument for another day.

Today, I bring to your attention a positive story about a cop. He is being deemed a hero, and I could not agree more.

Boston Police Officer Robert Robichaud began today by responding to a 3:45am call of a distraught female who was threatening to jump from a roof of a Dorchester apartment. He ended up saving a life.

The officer who had been with the department for three years says. “A call came in for a person on the roof and I happened to be right around the corner from the call,” Robichaud explains. “Nothing was really going through my head, I just responded to the call.”

Apparently, when he arrived at the scene, the woman was sitting on the roof yelling at the folks below.

“I saw who I believe is her daughter and somebody else she was talking to on the ground,” he said. “Several others were looking on from their porches and windows.”

Additional officers arrived went into the home to try to speak with the woman from an upstairs window. Robichaud stood on the front steps and attempted to engage her from the ground.
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The Boston Criminal Lawyer Blog has advised many times that you not try to out-fight, out-run or out-smart investigating officers.

However, it would appear that I had failed to advise something else…something I thought was a given. Apparently, I was wrong. Sorry.

But here it is…when law enforcement comes a-calling and letting you know that they are investigating you for criminal activity and do things like take away your computer…it is not a wise thing to then go and do the same thing for which they say they are investigating you.

Let’s discuss the matter of 23-year-old Keven McNicol (hereinafter, the “Defendant”). Now, he has pleaded “not guilty” to all charges, so as far as I know, he is innocent of all the nasty things folks are saying about him.

The Commonwealth says that he is yet another threat to children to hit the headlines recently. According to law enforcement, the Massachusetts Internet Crimes Against Children Task Force (“ICAC”) received a tip nearly nine months ago from a National Center for Missing Exploited Children CyberTipline. The information concerned an upload of child pornography to a website.

A joint criminal investigation ensued between ICAC, Massachusetts State Police, the Barnstable County Sheriff’s Office, and the Barnstable Police Department. As part of that investigation, the Defendant’s laptop computer was seized pursuant to a search warrant.

The Defendant was not arrested at that time. Instead, there was a forensic examination of his computer which allegedly revealed several videos and images of young females being posed in states of nudity and engaged in sexual acts. The Commonwealth says that the videos appeared to have been created during webcam chats the Defendant was having with the young females. The search was on for the girls and, finally, one was found and interviewed.

Now, you may be wondering what the Defendant was doing with himself while the authorities continued their criminal investigation.

Well, according to the Commonwealth, the girl interviewed reported that two months after the Defendant’s computer had been seized, he had contacted her again online, continuing his efforts to get her to take more pictures of herself to send to him.

On February 6th, armed with an arrest warrant, authorities arrested the Defendant in North Weymouth. He has been arraigned in Barnstable District Court on charges of posing a child nude and engaged in sexual activity, possession of child pornography, disseminating obscene matter to minors, and videotaping a nude person without their knowledge.
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Super Bowl Sunday 2012 was a stunning disappointment for many New England Patriots fans. Some fans took their emotions to a higher level. And they may pay the price for it. According to the campus police, fighting from members of an unruly crowd of angry fans began around 10:00pm when the game ended and the crowd was told to disperse only a few minutes later.

Police arrested 14 individuals (including 13 students) during this disturbance and the criminal charges against them are being headed by Northwestern District Attorney David E. Sullivan, who plans to “vigorously prosecute” the individuals. The arrestees are being charged with failure to disperse, disorderly conduct, and rioting. The students involved will also be disciplined by the school authorities, according to media reports.

Interestingly, however, in what appears to be a departure from other past school riots where fires broke out and students were hospitalized, there were no reported injuries and no reported damages that occurred as a result of this incident at UMass. No other serious riots or injuries were reported on campuses (and for that matter, in general) following the game on Sunday evening.

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