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32-year-old Michael Makiej of Amesbury (hereinafter, the “Defendant”) was in Newburyport District Court Monday. He has been charged with Massachusetts drug crimes and the drug at issue is marijuana. He maintains his innocence.

The Defendant’s problems arose, as often is the case, when a criminal investigation began without his knowledge. Federal agents informed state investigators that they suspected that a package containing marijuana would be delivered to the Defendant’s home. Amesbury police say it was to be delivered on Friday.

And so it was.

When the package was delivered, the Defendant was not home. However, the police used a drug-sniffing dog to fortify their suspicions about the package. Then, the police obtained a search warrant to search the package.

According to law enforcement, they found two pounds of marijuana inside. It was valued at about $5,000 to $8,000.

The police used this additional information to obtain another search warrant…this time to search the Defendant’s house. Inside, they say they found 25 marijuana plants of various sizes hidden in a room behind a false wall in a closet on Sunday.

The Defendant was then arrested and charged with possession of a Class D substance with intent to distribute and manufacturing/cultivating a class D substance.

After a bail hearing, the court set bail at $5,000.

Attorney Sam’s Take On Drug Possession and Massachusetts Search And Seizure

Often, when we hear about Massachusetts gun and drug arrests, there is no warrant involved. That is because it often happens on the Commonwealth’s mean streets. However, when possible, warrants are generally required in order for a search to be lawful.
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Sometimes, as we look across the globe (the round one, not the newspaper), we are appalled at the hatred and inhumanity that we see.

Why, just look at the recent matter in Norway. Anders Behring Breivik is grabbing his 15 minutes of fame (or infamy) by his various statements after his horrendous twin attacks of hatred in Oslo. The death toll? Many. The reason? Racial hatred.

Now, the authorities are trying to get a handle on whether or not he acted alone. He seems to keep changing his mind.

Breivik is charged under criminal law with “acts of terrorism,” including an attempt to “disturb or destroy the functions of society, such as the government” and to spread “serious fear” among the population.

His explanation is that he “believes that he needed to carry out these acts to save Norway” and Western Europe from “cultural Marxism and Muslim domination.” He had wanted his case to be held in an open proceeding. Most believe that this was so that he could further publicize his anti-immigrant, anti-Muslim ideas.

In the words of Rodney King, we think, “Can’t we all get along?” Then we think…why can’t the rest of the world be more civilized…like us?

And then…we are forced to remember that racism and hatred are still alive and well and living here. Not so long ago, a man was convicted for his attacks which included burning down a church because the congregation was comprised of African-Americans. We often hear about attacks on graveyards because the graves are filled with Jews.

Today, the Globe (the paper, not the round one) tells us about Jeffrey Smith (hereinafter, the “Defendant”), a 46-year=old Massachusetts man who has pleaded guilty to sending letters threatening to burn black churches and NAACP offices in three states. Specifically, the targeted seven predominantly black churches and four NAACP offices were in Cambridge, Roxbury and Medford in Massachusetts; Providence, R.I.; and Charlotte, N.C.

And what was the reason for these threats of arson?

Well, it seems that the Defendant does not like the fact that African-Americans are currently leaders in our Commonwealth and in our country. His letters apparently indicated that he didn’t like African-Americans or minorities as his office supervisors “nor I like them as President of the United States.”

Bad timing, I suppose. Better it should be a couple hundred years ago when they were slaves who’s families we could tear apart at will at auction.

The Defendant was sentenced to 15 months in prison…which was basically “time served” because he had been incarcerated while awaiting trial. After sentencing, the Defendant was released to the custody of the Department of Mental Health .

Attorney Sam’s Take On Hate Crimes

Let us be clear on the law here.

While Americans allegedly have the right to “free speech”, there are limits. There have to be in order to have any kind of organized society.

Even an experienced criminal defense attorney has to admit that.
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Ok, I admit it. Sometimes, the extreme heat can even effect experienced criminal defense attorneys. Yes, even in Boston, although we generally never have to face temperatures that feel like over 1000 degrees as we did last Friday. The point is, though, that although I was able to handle my courthouse responsibilities, Friday’s blog did not happen.

Sorry about that…but here it is now.

As you may recall, we were looking for some closure regarding the messages underlying two of last week’s blogs. The first one, Martha Vinyard Man Faces Assault And Battery With A Dangerous Weapon Charges For Attack On Alleged Sexual Predator, left us with the odd statement I made at the end of the story, namely that, given today’s criminal justice realities, there was not much difference between the defendant’s receiving Pretrial Probation and an acquittal. The other posting, Massachusetts Juveniles At Risk In Romance, Retribution And Criminal Charges, ended with my indicating that a juvenile having to deal with a case in the juvenile justice system was only the beginning of said juvenile’s problems.

I told you that the reason was similar to the promised final word regarding the prior blog.

Here is what I was talking about.

Attorney Sam’s Take On The After-Effects Of Criminal “Justice”

I have often written about my view of the “presumption of innocence”.

I have told you that what I see is that it translates into an “Assumption” of guilt…at least, until the actual trial. What I have not spent a great deal of time writing about is what happens to that Assumption after the court closes its file.
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As you know, one of the purposes of this daily criminal law blog is to warn people of the realities of today’s criminal justice system. Chief among those who need the warnings, but often do not realize it, are our kids. While today’s story was originally meant for what the system calls “juveniles”…it is a good warning to all human beings who experience passion.

Today, more than ever, passion is a dangerous thing. Particularly if it leads to written or spoken communication. And, following up on my parting remarks in July 19th’s blog, once triggered, the problems it causes can follow you for a long, long time.

I am primarily talking about the something that keeps the system going…romance. Or, more specifically, romance gone bad.

Faltering relationships and messy breakups can escalate into public arguments, defamation on social networks, and worse, Massachusetts teenagers (hereinafter, “Teens”) said yesterday during a Boston Public Health Commission conference at Northeastern University that focused on the challenges and perils of breakups in the social media age.

Word spreads fast in this “instant contact” world. Teens say rapid-fire rumors in text messages and trash talk on Facebook and Twitter make the dating scene more confusing…and more dangerous in many ways. Further, ad alittle anger, obsession and desire for retribution into the mix and you have instances of hacking into an ex’s Facebook account, sending threatening text messages that end with, “Or else.”

Because nobody has to wait anymore for a “cool down” period before they spring into action, more people act without thinking. Unfortunately, however, the system does not recognize that as acceptable. “I guess I just did not think about it first” is not a defense to Massachusetts crimes such as stalking, harassment, assault, annoying phone calls or making threats to commit a crime.

And, you may be sure, the elements of these crimes are usually interpreted liberally so that no chances are taken with a potential serial killer. After all, there is the media and, “What if I give him a break and he goes out and kills somebody?”

Don’t believe me? Just look at what is being credited for the Teens’ above-described meeting. According to the Boston Globe, such discussions “about healthy adolescent relationships have been brought into sharp focus after the body of recent Wayland High School graduate Lauren Astley was found in a swamp and her on-again, off-again boyfriend was charged with murder.”

Of course, assault and battery and murder have long been understood to be violent crimes. However, according to the National Council on Crime and Delinquency, one in three adolescent girls is said to be a physical, emotional, or verbal abuse from a dating partner.

What is verbal abuse and/or emotional abuse when it comes to juveniles? Do they even understand it? Do we adults even understand it? Now, add to that the newer issues like, “Can my relationship be official if it isn’t on Facebook? What do I do if he unfriends me after we break up? How do I stop her from spreading rumors about me on Twitter?”

To say nothing of the other side of the criminal justice coin which people do not want to recognize. This would involve false allegations made from an ex-partner scorned.

Attorney Sam’s Take On Juvenile Love And Retribution

Although we like to disregard the fact that kids are kids because they are not adults yet (biologically as well as most other ways) when it comes to things like bullying and sexting, Nature does not seem to be following our directives.
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Cases of cyber crimes seem to be hitting the headlines a lot these days.

Take Aaron Swartz, 24, of Cambridge (hereinafter, the “Defendant”) for example. He was a fellow at Harvard University’s Edmond J. Safra Center for Ethics until quite recently. Now, he is facing allegations that he committed federal crimes. Specifically, he is charged with hacking into a Massachusetts Institute of Technology computer archive system to steal more than 4 million articles from scientific journals and academic work.

The charges are wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer. He faces up to 35 years in prison and a $1 million fine.

At the moment, the Defendant is not in custody. He was released at a bail figure of $100,000.

Interestingly, although the government treats his actions as criminal, the Defendant has made a name for himself advocating for the elimination of barriers to the distribution of information over the Internet, and for the widest public distribution of information in libraries. He is a founder of Demand Progress and a co-founder of reddit.com. These political action groups, oppose what the Defendant has described as the “corrupting influence on big institutions.” In a statement released after his arrest, his colleagues at Demand Progress both denounced and ridiculed the government’s actions.

“This makes no sense,” David Segal, executive director of Demand Progress said in a statement. “It’s like trying to put someone in jail for allegedly checking too many books out of the library.” He also added that MIT and the Defendant have settled the matter between themselves before the prosecution even began.

To make matters more absurd, according to Segal, because MIT indicates that, “…they’ve suffered no loss or damage, and asked the government not to prosecute.” Segal .

Prosecutors said the Defendant allegedly broke into a computer wiring closet in a basement at MIT to access MIT’s network without authorization from a computer switch within that closet. The access allowed him to download materials from JSTOR, a non-profit archive of scientific journals and academic work. They further allege that he into the system to distribute JSTOR’s archives through file-sharing sites.

The articles and journals listed under the JSTOR system are available through a paid subscription, with some subscriptions costing as much as $50,000. A portion of the fee is in turn paid over to copyright holders.

The indictment also alleges that the Defendant’s illegal downloads impaired JSTOR’s computers and servers, depriving regular customers access to the archives.

Prosecutors add that even after security officials blocked the Defendant’s access, he hacked into the system again.

US Attorney Carmen Ortiz said in a statement announcing the indictments that the Defendant’s actions warranted his being treated like a criminal. “Stealing is stealing, whether you use a computer command or a crowbar, and whether you take documents, data, or dollars,” Ortiz said in a statement. “It is equally harmful to the victim whether you sell what you have stolen or give it away.”

Attorney Sam’s Take Theft Of Intellectual Property

Sometimes, it just seems as though folks just ask for trouble.
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You have seen it in the movies. Sometimes, at the end of the film, you walked out angry.

Sometimes feeling exhilarated.

It is the tale of the vigilante. The vigilante who goes after the unmistakable “bad guy” and, maybe even, rescues the innocent victim.

Usually, how you feel depends on what happens to the vigilante.

Well, you may want to ask Frank Herbert (hereinafter, the “Defendant”), the 57-year-old wheelchair-bound grandfather about it. He allegedly attacked an accused pedophile with a baseball bat. The alleged pedophile was the Defendant’s girl-friend’s son-in-law. The Defendant says he was protecting a young girl.

Child protection advocates are hailing the Defendant as a hero. The Commonwealth, however, is charging him with the Massachusetts felony of Assault and Battery with a Dangerous Weapon.

He faces 10 years in state prison.

It happened on February 22nd on Martha’s Vinyard. The Defendant allegedly struck his alleged target, Joshua Hardy, on the arm with the bat and kept the apparently 230-pound-man at bay until the police arrived. Hardy is now facing sexual assault charges and is held on high bail. He is accused of assaulting two girls.

Mr. Hardy has just recently announced that he refuses to testify against the Defendant because doing so might incriminate him. As any daily reader of this blog knows, this is his right under the Fifth Amendment to the Untied States Constitution.

You might think the prosecution ends there. However, according to the Commonwealth, it doesn’t. The prosecution claims that it can prove the case against the Defendant even without the testimony of Mr. Hardy.

Maybe…force one of the girls to testify against their hero?

The Defendant’s lawyer calls the prosecutors’ decision, “an asinine lack of discretion. It’s not like [the Defendant] lined up a baseball bat like Manny Ramirez .He tried to do the right thing.”

The Defendant’s girlfriend said she fears, “He won’t last in prison. He can’t even hold a food tray.”

The Defendant has no prior criminal record and was offered pretrial probation on the bat assault charge that did not require him to admit guilt if he stayed out of trouble for a year, However, he says that his conscience would not allow him to accept it. “I did what I had to do, and the rest doesn’t matter,”

Attorney Sam’s Take On Vigilantes And Self-Defense

This is one of those conundrums that, I suggest to you, could easily be seen both ways and, in fact, underscores one of the truths we have discussed about the criminal justice system.
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Sometimes, as most police agencies know, things are not simply what they appear to be.

Take the case of Louis Gersh (hereinafter, the “Defendant”) for example. The Defendant ran a second-hand store on Warren Street in Arlington. Little did he know, however, he had been under a Massachusetts criminal investigation for the past month. He found out last week when he was arrested for Massachusetts heroin-related crimes. Theft-related charges to follow.
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It was a joint investigation between Arlington and Somerville police. It included use of an undercover officer to gather evidence as well as information gained in connection to another arrest, made weeks ago, on the Concord Turnpike. It culminated in a search warrant. According to Arlington Police Captain Richard Flynn, law enforcement seized a “large amount of heroin” after executing the search warrant on the business, called “On Line Sales”, owned by the Defendant.

However, this entrepreneurship=gone-wrong does not end there.

The Defendant also allegedly runs an online auction site that is headquartered at said business. The Commonwealth claims that this is actually a clearinghouse for stolen merchandise.

Law enforcement credits the neighborhood with suspicion about the Defendant’s businesses. Ryan explains that “The neighborhood in East Arlington on Warren Street has really been very concerned about the presence of his storefront,” Apparently, a “stream of seedy people” was seen coming and going from the storefront.

The Defendant, arrested Thursday night, now faces charges of a class A drug distribution, as well as separate charges for doing so within a designated school zone.

Flynn said police might file additional charges of receiving stolen property against the Defendant, based on the search at his business. He claims that, “We’ve taken so much stolen merchandise out of there, it’s unbelievable”.

Attorney Sam’s Take On Criminal Investigations And Unlikely Targets

To say that the Defendant needs an experienced criminal defense attorney is to suggest the obvious. And yet, it is likely that he had no idea that he would be in this predicament.
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Yesterday was another day in the Whitey Bulger/ Catherine Greig Follies (hereinafter, the “Follies”). It was Day Two of the bail hearing for Ms. Greig, during which time witnesses with absolutely nothing relevant to say were given the chance to throw verbal barbs at the couple-at-issue as the court decides whether to hold Ms. Greig, a woman with no criminal record and charged with something punishable by relatively little prison time, without bail.

As you know, Greig is accused of helping Bulger elude authorities throughout their 16 years “on the lam”.

During the hearing, Ms. Greig’s attorney portrayed her as a woman who was subservient to her infamous beau and knew little about the extent of his crimes. With little else to gnaw on, fascinated onlookers surmise that this provides a crack through which her likely defense can be examined.

“This woman is not a violent person. … Her only crime is a crime of passion — falling in love with this gentleman,” the experienced criminal defense attorney argued. He described his client as a meek woman who knew little about Bulger’s crimes when she fled Boston with him. Thereafter, one is left to imagine, to whatever little degree she learned of his past, she was too frightened to turn him in.

Interestingly, F.B.I. testimony at the hearing reflected that the feds, in their own documents, acknowledged that it seemed as though Bulger treated Greig like a servant.

According to said reports, he was harsh and controlling and his wish was her command.

Prosecutors argue that she liked living like that. After all, “She liked bad boys”.

In one of the more interesting moments of the Follies, the defense attorney called Bulger’s former top lieutenant, Kevin Weeks, as a witness to testify on his client’s behalf.

Mr. Weeks testified that Greig was not involved in Bulger’s crimes (which, of course, chiefly occurred before she took off with the man). He further said that Bulger’s reputation among some people in South Boston as a Robin Hood who kept drugs out of the neighborhood and helped old people. In other words, his client had no real reason to suspect he was a bad guy.

Now who could question the credibility of such testimony?

Well, the government did. They argue that weeks is painting a picture that differs from reality. On the other hand, he was apparently to be believed, as far as the government was concerned, when he aided them in the investigation and trial in earlier years which gained him a “better deal” when he faced charges.

In fact, it is probably why he is free today.

As mentioned above, the capper of yesterday’s Follies were the relatives of four people Bulger is accused of killing being allowed to give victim impact statements during the hearing.

Such statements are, of course, heard at the end of trials when there is a conviction. Hence the definition of the word “victim” and the relevance to the convicted defendant(s).

In this case, people expect a trial…but I don’t see why. After all, both defendants have already been convicted, haven’t they?

Attorney Sam’s Take On Prosecutorial Deals And Credibility

You do see what is going on here, don’t you?
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Massachusett’s top judges, the Supreme Judicial court, among others, (hereinafter, the “Judges”) are based in Boston. And they are not happy. Angered at the budget cuts approved Monday, they have urged Governor Deval Patrick to stop appointing new judges as they now already have to close 11 courthouses and lay off many employees.

In a strongly worded statement, the Judges say that said budget jeopardizes the right of every person, guaranteed by the Massachusetts Constitution, to swift justice.

“We make this request . . . with great reluctance and deep regret,” the Judges wrote. “The people of Massachusetts deserve better. But the fiscal jeopardy into which the operation of the Trial Court has been placed demands extraordinary action.”

The governor’s legal counsel, Mark Reilly, has issued a statement calling the Judges’ pronouncements “confusing at best.” He has rejected their request that the governor stop appointing judges.

“I do think we have a crisis,” Representative Eugene L. O’Flaherty, a Chelsea Democrat said. “I disagree with the solution that is proffered by the court.”

Michael W. Morrissey, a former state senator who became a prosecutor this year, believes that closing courthouses is short-sighted. He said moving criminal trials out of the Brookline court, for example, would endanger community programs that work closely with the court and with the local police.

“It isn’t just a case of appearing in court,” Morrissey said. “It’s the layers of support you have around you.”

Attorney Sam’s Take On Lack Of Justice…Swift Or Otherwise

As I prepared to write today’s blog, I happened upon some comments posted by readers of Boston.com. Naturally, this led to my adding my own two cents. Many of said commentators seemed to be of the opinion that the Judges are on the right track. In fact, they went a bit further. They suggested that all the courts get closed down because their perception is that these institutions of Justice accomplish nothing close to Justice.

Naturally, if you have no courts, you don’t have much need for judges.

You can scoff at the anger toward the criminal (and, I would imagine, civil) justice system. Of course, you can scoff at a lot of opinions and realities. One might argue, though, that simple blind criticism without any thought to realistic solutions is how we got in this mess in the first place.
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It has been said that hard cases make bad law. Well, maybe. But it also seems that high profile cases tend to make sudden amendments to the law, twist it up into a pretzel and then eat away at it until it is no longer noticeable.

It is a fascinating time for people like me, who actually care about the system and what it is supposed to represent, to watch as rights are slowly eroded and the procedures themselves are bastardized.

I remind you of the “Who’s gonna pay for Whitey’s attorney now that the government has taken all his money circus” that we were treated to a week or so ago.

I understand that my opinions in this blog must anger a lot of people. Sorry about that. The problem is that I also have an annoying tendency to be correct. I direct you to the once-held-as-heroic travesties of South Hadley’s prosecutor and the following “super-tough” action of our legislature to bully Massachusetts bullies.

Well, in any case, prepare to be more aggravated than ever today.

Yesterday, Catherine Greig, longtime girlfriend of Whitey Bulger, began her detention hearing. However, the Magistrate Judge hearing the case is allowing so much venting of so many human systems, that one day was not enough. It is now continued until Wednesday.

On Wednesday, relatives of Whitey Bulger’s alleged victims are supposed to be heard.

By the way, if you were under the impression that the purpose of this hearing is to see whether Ms. Greig should be released on bail while awaiting a trial in which the government has yet to prove her (or Whitey, for that matter) guilty of something…you were actually correct. That’s right….this is not her actual trial. This is to determine incidentals like whether she is likely to return to court to answer the charges against her. By the way…those charges do not include murder, drug trafficking or other things which often “necessitate” someone being held without the Constitutional right to bail.

But, I digress.

The court’s unusual move was apparently made at the behest of United States Attorney Carmen Ortiz’ office. Yes, that would be the prosecution. One of the contestants of what is quickly becoming a new “best show on earth”. The court endorsed the wonderful idea that relatives of some of the 19 people Bulger is alleged to have killed, or whose death he is accused of orchestrating, be allowed to take the witness stand in US District Court.

You may be wondering how their testimony would be relevant to the issues at hand.

Me too.

But, that incidental aside, the important thing is that while the prosecution and defense are dealing with legal issues like bail, the relatives of alleged victims will finally have their first chance to speak in court and lash out at the bad guys before anyone is proven guilty of anything. Now, the logic of this might confuse you alittle. After all, usually such statements are not allowed unless and until a defendant is proven guilty beyond a reasonable doubt.

But, hey, look …people are not too happy with the justice system these days. After all, as discussed last week, a woman was found “not guilty” of the murder allegations brought against her which most onlookers thought was guilty. Further, a lot of people have been pretty angry with Whitey since he took off so long ago. Now, true, Ms. Greig has not even been charged with taking part in any of the murders…let’s face it…a detention hearing for Whitey would be laughable. These poor folks have been waiting around just chomping at the bit to lace into Whitey and his alleged deeds since Bulger’s capture last month. They’ve been pretty patient…why not throw them a bone?

I mean, who is it going to hurt? Ms. Greig? Come on, she’s a bad lady. She was with Whitey. Why should we do anything to preserve her rights?

Even the attorney for one of the families of an alleged Bulger victim admits surprise “I really haven’t seen it happen before,” he explained. Perhaps remembering who he was representing at the moment, he continued, “But this is such an unusual case that it’s really hard to compare this with happens with other cases.”

Of course! It is the perfect case in which to throw Constitutional safeguards out the window in favor of “feel good” rulings! After all…it’s good politics!

Oh, wait…you mean this isn’t the governmental arm that is supposed to be political?

Uh-oh.

Attorney Sam’s Take On Bad Guys And Constitutional Rights

Yesterday, I wrote about hypocrisy and it would appear that that “h”word has lifted its ugly head again. Perhaps we should just throw in the towel and handle these cases the way the government, and, it would seem, many of us, would prefer.
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