Boston Criminal Lawyer Blog

February 8, 2012

CAPE COD MAN IS ACCUSED OF INVOLVEMENT IN THE CHILD PORNOGRAPHY TRADE…EVEN AFTER LAW ENFORCEMENT SIEZES HIS COMPUTER

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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February 8, 2012

DA says he will prosecute 14 arrested during Super Bowl ruckus at UMass-Amherst

by Altman & Altman

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.

February 7, 2012

MA Peeping Tom Indicted on Charges of Photographing Nude Women at Somerville YMCA

by Altman & Altman

Twenty-four-year-old Ryan A. Perez was indicted by a grand jury today on several charges stemming from allegations that he filmed nude women in the women’s locker room at the Somerville YMCA. Perez has been charged with wiretapping, possession of child pornography (found on his phone after police were authorized to search it), and “photographing an unsuspecting nude person,” according to media reports.

As earlier news reports indicated, Perez was allegedly caught videotaping a woman from underneath a bathroom stall-using a cell phone-on the morning of November 1, 2011at the Somerville YMCA. An investigation of his phone revealed several videos made during a short period of time that day, as well as child pornography. The case is being led by Middlesex District Attorney Gerard Leone. Perez was indicted in Middlesex District Court.

Massachusetts courts take charges of sex crimes incredibly seriously. Conviction can result not only in harsh penalties, including imprisonment, but also lifelong stigma, a tarnished reputation, and consequent difficulty finding future employment and educational opportunities. Moreover, convicted sex offenders are also required to register with the Massachusetts Sex Offender Registry Board.

February 7, 2012

FALL RIVER POOL OF DEATH PROSECUTION ENDS WITH A CWOF

by Samuel Goldberg

Do you need some more proof that times have changed in the criminal justice system? Want some more evidence that sometimes prosecutions are all about publicity?

Let’s turn to a short-lived prosecution in Fall River.

You may remember the horrific story from last year wherein it turned out that a woman was found dead in a public pool. Well, it was actually a bit worse than that. The woman was actually found quite awhile after she had died in the pool. In fact, two days had passed.

During the intermittent time? Folks swam on, unaware that they were swimming in such a morbid scene.

Of course, such are the things of which lawsuits are made. Civil actions from the family of the deceased woman. Civil lawsuits from the patrons who swam in the death-infested water. Not to mention the lawsuit from the poor souls who saw the body!

Well, the Commonwealth decided that civil lawsuits were not enough this time. The local district attorney decided that criminal charges should be brought. No, not regarding the death of the deceased…but because of the kids who swam in the water wherein the corpse lay.

On Tuesday, that criminal action ended with a whimper, not a bang. The two former Massachusetts recreation managers who had been charged with reckless endangerment of a child turned to the judge for justice.

The court was limited in what it could do. You see, it could not simply dismiss the charges even if it wanted to. What it could do, however, was allow the defendants a chance to end the case without guilty findings.
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February 6, 2012

FEDERAL AGENTS FUMBLE GUNS AND DRUGS RAID IN FITCHBURG

by Samuel Goldberg

Hey, anybody out there remember the movie (original or remake) of the Texas Chainsaw Massacre? Well, a Fitchburg woman experienced a scene more akin to that than the federal criminal investigation it turned out to be.

Everybody ended up taken by surprise in this horror story…

The Fitchburg woman, and her three-year-old daughter, ended up shocked by the chainsaw entrance of the FBI agents. The agents ended up surprised that they had accidently raided the wrong home!

The federal agents had come ready to seize drugs and guns and make the accompanying busts. However, while they had the right floor…they had the wrong apartment.

This, of course, was no solace when the woman who” just happened to glance over and saw this huge chainsaw ripping down the side of my door.” she said. Within moments, the chainsaw had cut through most of the door, and one of the agents kicked the rest of it in.

Then came the shout, “FBI! Get down!” and the clicking of a gun.

She hit the floor.

The dog was apparently barking and the young child was in another room screaming for her mother. An agent told her to get her dog and she did so, laying in the dog’s urine as she urinated on herself. The three-year-old continued screaming, but the agents told mommy not to move. Fearing she would be shot if she got up, she stayed on the floor as the child continued screaming.

The investigation which had led the agents to the home had been approximately two-years long. It took a little longer to determine they had the wrong place.

While an agent came back later to apologize, the woman says the apology did not seem genuine. “For me it felt (like a) routine apology, it felt like just a regular, ‘I’m sorry for the inconvenience. Here’s the phone number for your landlord to get reimbursed for the door, have a good day.’ And that’s how I felt, like it was a smack in the face.”

Attorney Sam’s Take On Investigations And Credibility

No, this is not simply me taking advantage of a mistake made by law enforcement in order to tear into them. As I have said in the past, I actually have a great deal of respect for most officers. They have an extremely difficult job and I think that most of them try to do it to the best of their ability.
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February 4, 2012

SALEM CHILD ASSAULT AND BATTERY CASE PRESENTS A PLEA OF “NOT GUILTY” FOLLOWED BY AN ADMISSION OF GUILT

by Samuel Goldberg

The Boston Criminal Lawyer Blog has long been telling you that the law does not really recognize “self-help” solutions to problems.

Particularly when said self-help is a crime.

Some folks seem to still believe that if a person has a good reason to commit a crime…such as revenge…then the court will look the other way. It doesn’t.

Let’s take a case that dominated the news on Friday. It hails from Salem. A woman was brought to court on charges that she boarded a school bus and hit a 5-year-old girl as apparent pay-back for hitting her son previously.

The woman, Dominique Hans (hereinafter, the “Defendant”) was arraigned Friday in Salem district court, charged with assault and battery and disorderly conduct. She pleaded “not guilty” and was released after a bail hearing.

Bail was set in the amount of $1,000 and she was Ordered by the court to have no contact with the alleged victim or her family and to stay away from the bus stop.

The Defendant, a bit more vocal than most, then made statements to the press that she merely “confronted” the girl for hitting her 6-year-old son, but did not hit her. She does say, though, that she held the girl’s face to get her attention.

Apparently, the Defendant’s ire was worsened when, she says, the school officials ignored her complaints that the kindergartner had hit the little boy.

Attorney Sam’s Take On Massachusetts Assault And Battery

Well, there are a couple of points to discuss in this matter.
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February 2, 2012

BOSTON’S SUPREME JUDICIAL COURT UPHOLDS PREVIOUS RULING AND REVERSES GUN CONVICTION

by Samuel Goldberg

As you have learned from reading this daily Boston Criminal Lawyer Blog, criminal laws are getting more and more complex. Changes in the laws take place all the time. This is but one of the reasons that I urge you to retain the advice and aid of an experienced criminal defense attorney when you find yourself an unwilling guest in the Halls of Justice…or, better yet, before you even enter the door.

Let’s take a crime of possession for example. In Massachusetts, not so long ago, the Commonwealth could present evidence that a gun is operable or that illegal drugs are present simply by submitting a certification from and expert into evidence. Nobody had to testify. Just the paper saying either the gun was operable or that what the police believed was cocaine was, indeed, cocaine.

Have you ever tried to cross examine a piece of paper? It is very difficult to do.

Finally, the courts ruled that a witness needs to testify to authenticate the document and answer questions about it. This is because a criminal defendant has the right to confront witnesses against him or her. How do you confront a piece of paper? Let alone the hearsay objections…!

This was a pretty major change in the law and has shaken up a number of criminal prosecutions. One such case was Commonwealth v. Barbosa, and it was handed down by Boston’s Supreme Judicial Court on Tuesday. In that case, the defendant was convicted of possession of a variety of things he was not supposed to have. He had a gun, he had ammunition and he had marihuana. Of course, what he did not have was a license to have any of it. The defendant appealed arguing, among other things, that the Commonwealth should not have been able to rely on simply submitting the certificate on the gun without a live witness. Further, the defendant argued that the fact that the Commonwealth was allowed to do so deprived him of his right to a fair trial. In other words, it was not a “harmless error”.

The SJC agreed.

Citing the earlier holding in Melendez-Diaz v. Massachusetts, the court held that because of the import of the certificate of examination, the evidence that showed the gun was operable, to the overall prosecution, this could not be considered “harmless” and so the conviction for the gun possession had to be reversed.

Attorney Sam’s Take On The Need For Experienced Criminal Defense Attorneys

Let’s take a scenario.
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February 1, 2012

MASSACHUSETTS POLICE CHASE APPREHENDS JUVENILE WITH PROBATION VIOLATIONS

by Samuel Goldberg

You know how the Boston Criminal Lawyer Bog keep telling you that if the police are after you to stop…you should stop?

Here is yet another example of a young man who did not see it quite that way. Now, he has only increased his criminal justice woes.

Of course, our 16-year-old Westford gent (hereinafter, the “Defendant”) had some outstanding problems t begin with. More specifically, there was an outstanding warrant for his arrest due to a probation violation in a felony matter.

If you are not going contact an experienced criminal defense attorney and arrange your return to court (which you should), it might be wise to lay low for awhile.

He didn’t.

According to law enforcement, he was driving at speeds of up to 100 miles per hour Monday night. First, Westford police tried to flag him down. No go.

The car chase went from Westford to Weston.

Westford police finally requested that Massachusetts State Police in Concord help them track down the Defendant on Route 3. The state troopers gave chase, using of police vehicles as well as overhead support had to be used.

The chase continued to Route 128, the Metro Boston State Police joining the event and on to Route 30. According to police, this is where the chased ended…when the Defendant crashed into a guardrail.

He was then taken into custody.

He was held overnight without bail by police before he went to court.

Attorney Sam’s Take On Police Chases

The Defendant, simply by not stopping in a chase he was destined to lose, has worsened his situation.
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January 31, 2012

RECENT NEWTON CHILD PORNOGRAPHY ARRESTS AND Criminal Offender Record Information (CORI) (Part Two)

by Samuel Goldberg

As the Boston Criminal Lawyer Blog indicated yesterday, officials in Newton are reviewing their hiring procedures in the wake of the two recent arrests relating to child pornography. It may be worth noting that these were arrests…not convictions…but, then again, to most…maybe not.

Anyway, Mayor Setti Warren has announced, “We’re going to look at everything,…We want to take a look at what options there are inside the city, outside the city, and within the balance of the law.” He went on to say that the sessions will look at not only additional screening of potential employees, but also at their training and supervision on things like how complaints will be handled. He added that the findings will be reported to the public.

While, for the most part, this sounds reasonable, there are still issues. For example, Newton city did a criminal history check on the two recent arrestees before they were hired. Said history check includes checking the state’s Criminal Offender Record Information ( “CORI”). Further, the CORI check is repeated every three years. No problems were found in either case. While some say that databases outside the Commonwealth should also be checked, doing so would apparently not have prevented the instant situation; neither man had any record of criminal history.

So…where do we go from here?

Attorney Sam’s Take On Criminal Offender Record Information Searches

Let’s do what any experienced criminal defense attorney has to do on a daily basis…separate, to some degree, what one is concerned with, depending on which hat one is wearing at the time. For example, as a citizen, I am against crime. As a defense lawyer, I defend alleged criminals (I, semi-jokingly, prefer the term “the misunderstood amongst us”). As you know, of course, I have strong concerns about the criminal justice system which are consistent with both hats…but that is a topic for another day.

The topic here, for today at least, is the CORI check
Let’s start with the prevention hat. How can we make sure that potential predators do not end up with jobs through which they can victimize the innocent? Well, sure, CORI can be a start. Further, I agree that, if you are going do CORI checks, it makes sure not to limit yourself to this state…particularly if the subject has ever worked or lived in a different state.

“Well, what information does CORI give you?”

January 29, 2012

ANOTHER NEWTON TEACHER IS CHARGED WITH CHILD PORNOGRAPHY (Part One)

by Samuel Goldberg

For the second time in two weeks, residents of Newton, have been treated to the news of a teacher being charged with possession of child pornography.

This time, it is Peter Buchanan (hereinafter, the “Defendant”), 47, a 10-year city employee who most recently worked in the Newton Public Library’s audio visual section. The State Police say that the Defendant downloaded and shared the material. The Defendant has pleaded not guilty to three counts of possession of child pornography and two counts of distribution of material depicting a child in a sexual act.

Yes, well, we know how seriously we all consider that…!

Anyway, the fact scenario in this case is a bit more commonplace than the one a week or so ago. In that one, David Ettlinger, a well-respected and much loved second grade teacher at the Underwood Elementary School was charged with actually sexually assaulting a girl and filming it. This would be, among other things, actually creating the child pornography. In fact, investigators in that case claim that he posted his works to an international website that trafficked in child pornography .

Usually, as in the case with the Defendant, the charges are simply possessing and more remotely distributing. Not that the allegations are generally treated less seriously.

The community, of course, is in a uproar and seeking who else can be blamed other than the two alleged perpetrators.

Criminal investigators have said the two cases are unrelated, but the cases have sparked a round of soul-searching among city officials and residents and drawn pointed questions from parents about what more public institutions can do to protect their children. While the mayor and school superintendent have pledged to review screening procedures, other officials are shrugging their collective shoulders admitting that both accused gentlemen had successfully passed background checks and the usual “vetting”.

Of course, something is clearly wrong here. As it turns out, at least according to the Commonwealth, beloved Mr. Ettlinger was living a dual identity. He was also known as “ee1″…an internet identity who allegedly advertised graphic videos on the Dreamboard Website.

But, as Susan Brown, a family therapist who’s daughter had him as a teacher, points out, “There was never an inclination of it [activities outside of school on which he took students] being weird”. She also explains that people gravitated toward him because he always seemed happy. “If he was older and looked different and wasn’t handsome and wasn’t friendly,” she added, “people would be reacting differently.”

Attorney Sam’s Take On Easy Answers That Put Us All At Risk

It is not unusual to read this Boston criminal lawyer telling you that the “quick and easy” answers that are often so politically expedient seldom solve criminal justice problems.

In fact, as I keep spouting, they generallt make them worse.
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