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As this Boston criminal lawyer begins his 52nd year of life, I return to a question which has plagued the jury system since its onset. Namely, what should a jury hear? Many people believe, as we discussed in my last blog, that the rules which govern what evidence can get before the jury is unfair. The thought is that the jury should hear everything and that, perhaps, the rules of evidence should not even exist.

As an attorney who has fought on both sides of the criminal justice trenches, I can tell you that I have been, in turn, gratified and frustrated by these rules…from both sides. However, most people view the system from the prosecutorial side and figure the biggest problem facing the criminal justice system today is crafty defense attorenys and overly-symnpathetic juries. These people tend to also believe that these inconvenient rules only serve to avoid justice and protect the guilty.

Perhaps you have always felt that way as well. Let’s bring your perspective regarding the system a bit closer to the target, shall we?

Like so many of your fellow-citizens, you have fallen on some difficult times of late. This has also brought the onset on some bad choices and habits.

You have also recently been arrested for Roxbury drug trafficking. You have learned that the Commonwealth turned its attention to you after Benjy Buyer told the officers who arrested him for possession that he had made the purchase of the cocaine on his person from you. When the arresting officer came to fit you for handcuffs, according to the resulting police report, the officer knew that Benjy was telling the truth because you “looked like a drug dealer”. You had a ten dollar bill and one envelope of matching coke in your pocket.

The fact is that you had purchased the coke from the same person that Benjy did; you did not sell to anybody.

This has been a particularly bad stretch of bad luck for you, by the way. Just previous to the drug arrest, you had broken up with your girlfriend, Felicia Flybynight. This took place after she showed up on your doorstep with a black eye. She told you that her other beau, Slugger, gave her the shiner when he learned that she was also seeing you. She was now remedying the error in her ways and leaving town with Slugger. However, before she left town, a friend of hers took a picture of her black eye and asked her what had happenned. “It’s all [INSERT YOUR NAME HERE]’s fault”, was her answer. The friend thereafter called the police and explained the situation to them.

After your arrest for the drugs, the police figured they might as well charge you for the assault and battery as well.

After all, they reasoned, many drug dealers are involved in domestic violence incidents.

Now…your cases are about to go to trial. Your lawyer tells you that the Commonwealth is offering “Guilty-Probation” to cover both matters. Should you go to trial and lose on either one of these cases, they say they will ask that you serve some time in one of their fine institutions.

What to do.

Attorney Sam’s Take On The Cases Sans Evidentiary Rules

Obviously, your first question to your Boston criminal lawyer upon hearing this news is, “Well, what are the chances that we can win at trial?”
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Yesterday, the Boston Criminal Lawyer Blog began its discussion about the Massachusetts murder case of Lauren Astley (hereinafter, the “Deceased”). The gentleman accused of the crime(s) is 18-year-old Nathaniel Fujita (hereinafter, the “Defendant”)

We looked at the Woburn bail hearing which took place, including the prosecutor’s representations as to what she believed the evidence in the case would show. She read some text messages allegedly between the Decased and the Defendant. She interspersed them with what as going on behind the scenes, such as the Deceased’s arrival at the Defendant’s home, the Deceased’s desire to save their friendship (in light of their recent romantic breakup) and the like.

I mentioned that it was possible that all this material might actually not make it into the mix of evidence which might find itself before the jury during a trial.

Today, let’s discuss why.

Attorney Sam’s Take On Text Messages, Hearsay And Admissible Evidence
As we have discussed in the past, not all items that the world considers “facts” are admissible as evidence in a trial. Every jurisdiction has its own Rules of Evidence which controls what may and may not come into evidence…and when.

As any experienced trial attorney can tell you, the rules can be a bit confusing…unless one is used to dealing with them.

Hence the need for an experienced criminal defense attorney when you are facing criminal charges.
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Nathaniel Fujita (hereinafter, the “Defendant”) has been charged with the Wayland murder of his ex-girlfriend, Lauren Astley (hereinafter, the “Deceased”).

The 18-year-old Defendant has been charged with a number of crimes, including first-degree murder. The case is pending in Middlesex Superior Court in Woburn. The body of the 18-year-old Deceased was discovered on July 4th off Route 27 in Wayland in a marsh. According to the Commonwealth, she had been strangled and her neck had been slashed.

The Defendant has pleaded “Not Guilty” to the murder charge as well as two counts of assault and battery with a dangerous weapon and a single count of assault and battery. He has been held without bail since his arrest.

During the Massachusetts bail hearing, the prosecutor presented a timeline of the events alleged in the days before and after the alleged murder. Part of this timeline was the reading of text messages allegedly between the Defendant and the Deceased. The last of these are said to have taken place shortly before the Deceasd’s death.

According to the Commonwealth, the Deceased had made various telephone calls and sent text messages to the Defendant in an attempt to discuss their situation and, perhaps, salvage a friendship. The prosecutor revealed as follows:

She wanted to talk. They decided to meet after she finished work.

“Call me when you get out,” Fujita wrote.

Astley drove to his house. She parked near the fence so his mother wouldn’t see.
Then she texted him one word: “Here.”

It was the last message that she ever sent.

The Commonwealth sumarized, arguing that “In an act of friendship, [the Deceased] reached out to the defendant… The defendant reciprocated this act of friendship by killing her.”

The Defendant was ordered held without bail until a Septembrt 22 pretrial conference, when his defense attorney plans to push for his release on bail.

Yes, good luck with that!

Attorney Sam’s Take On Texting And Bail Hearings

There are a few issues that are worth reviewing in this case, although, clearly, the matter has but begun its trek through the criminal justice system.
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As this Boston criminal lawyer returns to his five-blog-a-week post (after a bit of vacation time), I came across a story which is not supposed to happen. We see it all the time, of course, on television and in the movies, but, miraculously enough, it does not happen all that often in the Commonwealth’s reality.

It is a tale of Roxbury murder. It the shooting death of a mother and teenager who were apparently suspected by a perpetrator of cooperating with the Commonwealth in a pending homicide investigation. The youth, 17-year-old Elvis Sanchez, was shot this month after he appeared at a courthouse. When there, the Commonwealth pressed him to testify before a grand jury. He was, after all, believed by the Commonwealth to have knowledge of the June 5th killing of Wilfredo Martinez, a 23-year-old cook who had been slain in the housing development near Sanchez’s Roslindale home. Sanchez’s mother was also killed in the shooting of her son.

And so, now believing the two homicides are related, criminal investigators are looking into both deaths. This is according to officials…who spoke on condition of anonymity.

According to a spokesman from the Suffolk District Attorney, Sanchez was not a “cooperating witness” in Martinez’s shooting or any other slaying. However, he was clearly brought to the Grand Jury in hopes that he would testify for the government. It is, however, unclear as to whether or not he actually did provide such testimony.

The killing of Sanchez and his mother, Elvira Pimentel, 43, has renewed concerns about the risks of providing police with information about crimes, a longstanding problem in many Boston neighborhoods. “People don’t understand that part of the reason why they’re uncooperative is because either themselves as individuals or their families are being threatened,” said the Rev. Jeffrey Brown, executive director of the Boston TenPoint Coalition, an antiviolence organization.

It also underscores the struggle of witnesses who must decide whether to come forward when they live in neighborhoods where even the perception that one has cooperated with authorities can be deadly.

There is a taxpayer-funded program which allows the Commonwealth to move certain witnesses and endangered relatives to other parts of the state for several months. Suffolk prosecutors often use this in cases gang violence, when intimidation has sometimes led to recantations and acquittals.

“We don’t leave people alone with their fear, and all we ask in return is the truth,” quoth the Commonwealth.

One remaining question that people seldom deal with, however, is what is that “truth”?

Attorney Sam’s Take On Murder Investigations And The Plight Of Witnesses

First of all, do not look for a Commonwealth conspiracy in the fact that Suffolk County will not reveal whether or not Sanchez actually gave information to the Grand Jury before he was slain. By law, proceedings in the Grand Jury are secret, at least until any resulting indictment is revealed.
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Good morning. This Boston criminal lawyer is back after a few days out of town. Sorry about the missed blogs. I try to get 5 per week up there, but the week kind of got away from me. I do hope you had a great, safe and law-abiding weekend, though.

Apparently, 37-year-old Gerald Sullivan (hereinafter, the “Defendant”) of Charlestown did not. He is headed to a Woburn courtroom to face charges for a Medford home invasion case that includes a count of Massachusetts murder.

Kind of hard to have a terrific weekend with that hanging over your head!

According to the Commonwealth, the Defendant was one of two people who forced their way into the Medford home in February intending to rob the occupants of money and jewelry.
Things allegedly did not go according to plan.

There was a struggle. The father and son who were inside ended up shot during that struggle. The father survived, but the thirty-seven-year-old son did not. He was taken to a hospital where he died.

Authorities say that the Defendant was tied to the crime through DNA evidence. The criminal investigation is still pending as law enforcement is still searching for the second suspect
Attorney Sam’s Take On Home Invasion And Murder

This story brings to light an issue which many people still do not realize.
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In my last blog, we discussed Boston’s Supreme Judicial Court’s new ruling in the case of Commonwealth v. Tremblay. I used this case to cap off about a week of blogs concerning Massachusetts search and seizure issues.

Through my experience as a Boston criminal lawyer, I have seen how the playing ground is not even between the prosecution and the defense. Some of it is necessary and perhaps even desirable. However, the government’s advantage goes much further than that point.

The reality is that the government has the power and the resources to coerce, cajole, wiretap and virtually anything else it deems necessary in order to build a case against someone. During this time, the suspect may not even know that anyone even suspects wrongdoing on his part. The problem is that, accept it or not, some people are actually not guilty of the things of which they are suspected. And, in the course of the investigation, friends, family and neighbors, not to mention associates, are often squeezed for the “right ” information…whether or not said information is the actual truth.

And then comes the investigative cherry on top…the suspect’s statement. As we have discussed, a suspect does not have to talk to law enforcement. However, people are scared when approached by investigators. And when those officers keep pressing the suspect with assurances like, “Hey, we only want to know your side of things, then you can go home. We know you are a good kid”…it gets pretty hard sometimes to refuse to “cooperate”.

In Tremblaly, the issue was whether or not the statement given to law enforcement was voluntary. In the case, the officers encouraged the suspect to speak by agreeing to take the statement “off the record”.

“Off the record” does not exist in such a situation. Police officers are not news reporters.

To make matters worse, lying to suspects is generally regarded as “good police work”. However, should the suspect return the favor…that would be the felony charge of Intimidation Of A Witness.

People often respond, “That’s not fair” when I explain this to them. I explain that the usual definitions of fairness, logic and justice often do not count all that much in a pending criminal matter.

The question is, will there ever come a time when we, or the appeals courts, will say “Enough is enough!”

Maybe.

At least this Boston criminal lawyer is hoping it will be said in a meaningful manner.

Attorney Sam’s Take On Judicial Warnings

The United States Supreme Court has held that, in order for a statement by a defendant to be admissible, the statement has to be knowing, intelligent, and voluntary. Instantly throwing what we usually consider intelligent, what does this mean? Is the law much different in Massachusetts? Does the highest Massachusetts court think there should be limits on police behavior when it comes to “voluntary” statements?

Kinda-sorta.
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This week in the Boston Criminal Lawyer Blog, we have touched upon various issues involving Massachusetts search and seizure. Since I started this daily blog, I have warned you that, when performing a criminal investigation, police officers are allowed to mislead and, indeed lie, to a suspect.

A short time ago, this was confirmed in a case entitled Commonwealth v. Tremblay.

In this case, Mark D. Tremblay (hereinafter the “Defendant”), owned a house next door to Mr. Harold Nelson , whose home was adjacent to a lake in Chelmsford. Mr. Nelson was the owner of a twenty-foot Bayliner boat. On April 27, 2002, the boat the boat erupted in flames. The fire caused extensive damage to the vessel, and investigators concluded that it had been intentionally set.

The Defendant became the prime suspect during the resulting arson investigation.
Naturally, the Defendant was questioned during the investigation. However, the Defendant made the typical mistake that would be fatal to his defense. He believed what the police wanted him to believe. They told him that the statements he was to give were “off the record”. Apparently mistaking the interrogation for a press interview, the Defendant made inculpatory statements.

The Defendant was indicted and brought to trial. His attorney brought a motion to suppress the statements, claiming that the statements were involuntary because they were made with the understanding that they were made “off the record”. The lower court disagreed. The Defendant was convicted.

The Defendant appealed his conviction and the Appeals Court agreed with the trial court. And, now, finally, the Supreme Judicial Court has agreed with both lower courts.

Seems to me the Defendant could have saved alot of time, money and trouble if he had simply read this daily blog.

Attorney Sam’s Take On Search And Seizure And Police Investigations

In the end, we turn to a jury or judge (usually a jury) to determine guilt or innocence. As an experienced Boston criminal lawyer, I can tell you that the system basically sees this as a “no harm, no foul” situation. In other words, if a defendant is found “not guilty”, then no harm has been done, right?
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As a Boston criminal lawyer, I have seen many joint agency criminal investigations. Sometimes law enforcement is looking for gun possession or trafficking. Recently, there was a large inter-state operation regarding the creation and distribution of child pornography. The one we discuss today involves Massachusetts drug crimes.

There has been a joint operation between Boston police and MBTA Transit Police targeting drug dealing according to authorities. It has yielded the arrests of twenty-four people in the Andrew Square area over the past weeks.

Like all such operations, this one has its fancy name. It is “Operation Inside Out ” (hereinafter, “OIO”). OIO was launched during the month of July. It targeted individuals who used the Andrew Square T station to conduct drug transactions. Police used surveillance and shared intelligence in order to make the arrests.

“The primary goal was to impart a positive impact on the Andrew Square area and its neighbors and put those who would conduct such activity on notice to a strong police partnership and presence,” said Boston Police Captain John Greland, commander of District C-6.

According to law enforcement, OIO not only rendered them involuntary guests but also amounts of cash and illegal narcotics, including heroin, crack, cocaine, marijuana, and prescription pills.

Attorney Sam’s Take On Joint Police Investigations

Joint law enforcement investigations enable police organizations to do what, in years past, was not able to be done. In old days, there were quibbles over jurisdictional issues which seemed to be more important than the actual police work.

Maybe it is because computers make it easier, but agencies, both state and federal, seem to be working much better together.

“Sam, let’s assume that I am not dealing in drugs, guns or WMDs…or any other illegal substance. What is this supposed to do with me other than making me feel safer?”
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The tragic results of the search for Celina Cass, the 11-year-old girl from Stewartstown, N.H. was announced earlier this week. After a nearly weeklong search, dive teams found the missing girl Monday about a quarter mile from her home. Assistant Attorney General Jane Young said the girl’s death was suspicious because of the condition of the body, but she declined to be specific.

How Celina came to be where she was found officially remains unknown. So far, even the autopsy has not been able to determine the facts.

Folks are understandably impatient and anxious to find an answer to the mystery. Almost from the start, the pressure was on the police for immediate answers. People were furious that the autopsy did not yield an immediate solution.

In the experience of this experienced Boston criminal lawyer, such pressure does not necessarily help the cause of Justice.

Quick results speedily obtained are often misleading. In this case, rushed suspicions of guilt began to be forecast right away…if you understood the “between the lines” messages.

A pickup truck parked near Celina’s home was towed away as they investigated the area of the house in which she lived. According to accounts, the bed of the silver truck was filled with two trash barrels, with a pizza box showing in one. A New Hampshire State Police major crime unit truck was also parked in the driveway along with another similar truck.

In the area…the all-too familiar scene of a town mourning its own remembers and questions. At a make-shift shrine near the home a note was left saying, “I promise to think of you each day. You are the greatest person. I love you Celina Cass. I miss you. You never deserved anything like this. I thank you for being a great friend and for being in my life. You are the greatest. I LOVE YOU!

On the radio yesterday, sound bites could be heard of suspicion and even a few folks indicating that they believe they know who the responsible party is. Of course, they don’t…but sometimes suspicions can be as powerful as truths. And when it comes to criminal justice, this is a very dangerous fact.

Meanwhile, almost as soon as the body was found, we were treated to little updates about Celina’s stepfather and his behavior.

Stories circulated among media outlets that “Celina’s stepfather was taken to a hospital Monday morning” and that he “was taken by ambulance after repeatedly lying down in the family’s driveway and rolling around, and video showed him dropping to his knees in the driveway and then lying face-down, with his head resting on his hands.”

During this time of crisis, reports were also released that the stepfather, in 2003, was “involuntarily committed to a hospital in Concord after he entered his girlfriend’s house in the middle of the night and threatened to throw her down stairs, according to court documents. An order signed by a probate judge indicated that he suffered from paranoid schizophrenia and believed corrections officials implanted a transmitter in his body to keep track of him.” Further, it was released that, in that case, he had “served in Operation Desert Shield before receiving a medical discharge from the Air Force because of schizophrenia. ”

These statements were released even before any autopsy was performed.

Do you see where we are going here?

Attorney Sam’s Take On Murder Investigations And Rumor

Particularly if there is a history of any domestic violence, most police officers will tell you that, when someone disappears or is mysteriously found dead, the first suspects are members of the family. Sometimes it is a spouse. Sometimes it is a parent.
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In my previous blogs, I have told you that similar cases do not always receive similar treatment. As a Boston criminal lawyer for many years, I have seen this play out. Sometimes, it has angered me…sometimes I have been grateful. Let’s see what you think about this one.

Let’s look at the case of Addis Woldeguioroui (hereinafter, the “Defendant”). He is the 51-year-old Dorchester gentleman charged with crashing a van of special needs adults into a garbage truck while allegedly high on illegal Massachusetts drugs. According to law enforcement, he was found in possession of a pipe containing cocaine residue and an empty Oxycodone container in his bag,

The accident occured on 116 Highland St. in Newton earlier this week.

The Defendant, the talkative sort, allegedly told investigating officers police the accident took place because a solar glare made him lose sight of the truck. The collision sent 13 people to the hospital, including the driver and three who were transported to Beth Israel Deaconness Medical Center with serious injuries. Apparently, said passengers have been released or are in fair condition, according to court documents.

Officers say they also found a pipe containing cocaine residue and an empty Oxycodone container in the Defendant’s bag and charged him with Massachusetts operating under the influence as well as charging relating to his causing serious injury, negligence, and possession of Class B drugs.

He is looking at a possible 10 years in prison.

The Defendant also allegedly told police he had taken one or two Oxycodone pills prescribed by a doctor for pain around 5:30 yesterday morning. According to him the pills are for foot pain. The Commonwealth is waiting for results of the blood test taken at the hospital..

After the accident, the Defendant found himself in Newton District Court to be arraigned on his charges. In previous blogs, I have discussed the pros and cons of talking with trying to out-talk or out-reason police officers on the streets. I never thought it necessary to tell you that it is unwise to ignore your lawyer’s advice and try to do it with a judge and prosecutor.

However, that is what the Defendant did.

Speaking about those in the van, the Defendant explained, “The people [in the crash] were my people…I carry their blood on me.”

When confronted with his previous criminal record in New York and Massachusetts (dating back to 1977) for incidentals like armed robbery as well as a pending arrest warrant from West Roxbury District Court, he insisted on responding, explaining that “The past, that is what it is, the past…I’ve had some difficulties, and I’ve overcome them.”

Indeed, the Defendant served in the Air Force from 1978 to 1981. In court, he was supported by his girlfriend, who clung to a bible and to freshly-pressed clothes, that she was not allowed to give to him.

The Defendant was held on $5,000 bail, half of what prosecutors had requested. The prosecutor also argued that his bail in his earlier case should be revoked, but the court decided against hat. She did, however, forbid the Defendant from driving should he be released.

“He’s a good guy. He’s lived a tough life,” the Defendant’s girlfriend explains.. “He loved his job. . . . He was trying to get his life together.

Attorney Sam’s Take On MA Warrants And Inconsistent Results

Usually, when a defendant appears before a court and there is a warrant out for their arrest because of their failing to appear, the defendant’s bail in the previous case is revoked and is held without bail on that matter. This is independent of the bail set in the new case.
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