by

Attorney Sam’s Take On Massachusetts Criminal Appeals

Your worse fears have been realized, The jury’s foreman has announced that the jury panel has found you guilty as charged.

Your Boston Criminal Lawyer turns to you and murmurs that it is “not over yet” and that he will be filing an appeal this very day.

Sounds great. Only one question. Does that mean its argued right now? Can you wait out the appeal process outside the walls of punishment? Most of all…will the Appeals Court recognize the jury’s tragic mistake?

Ok, more than one question.

Well, the answers to these questions tend to vary from case to case.

As I began to explain last Thursday, the job of the various appeals courts differ from that of the trial court.

The trial you just went through was to determine the facts. Presumably, the Commonwealth was successful at proving you guilty beyond a reasonable doubt. Both your Boston criminal lawyer and the prosecutor put before the jury various arguments and pieces of evidence. The person in charge of what evidence/arguments actually got before the jury was the Judge.

The jury has reached its verdict on you. One way to look at it is that it is now time for the appeals court to pass judgment on His Honor.

No, that appeal is not going to be argued today. Nor tomorrow. Not for several months at least in fact.
Continue reading

by

Luis Melendez-Diaz (hereinafter, the “Petitioner”) has been convicted of being a Massachusetts drug dealer. This took place quite awhile ago. However, his case did not end after trial. There was an appeal. The appeal went on to change the face of Massachusetts criminal trial procedure…to a point.

You see, the Petitioner had a set of his drug convictions overturned by the United States Supreme Court in 2009 when it ruled that a criminal defendant’s right to confront accusing witnesses included certain expert witnesses. These were who prepared paperwork regarding testing such things as guns and drugs. Previously, the Commonwealth simply threw a copy of said experts’ reports in front of the jury and called it a day as to what said reports said (i.e., “Yes, it was indeed heroin”, “The gun really was an operable gun”, etc.).

In its ruling, the Court said that a defendant facing such evidence against him or her had the right to cross-examine a human being, not simply be left with said human’s paperwork. As you might imagine, it is very hard to cross-examine a piece of paper.

In the Petitioner’s first trial in Boston, prosecutors simply filed paperwork saying tests on powder seized from the Petitioner showed they were cocaine. After the successful criminal appeal, the Petitioner was tried a second time and acquitted in February.

The ruling created what became known as the “Mendez-Diaz Rule” and caused a number of cases to be challenged by convicted defendants.

However, all good things must end. Even in criminal justice.

You see, while this may have made more business for Boston criminal lawyers, it also presented a problem for the prosecutors and courts. Over-crowding issues aside, the courts were not ready to simply open the floodgates and allow everybody out of prison.

The Supreme Judicial Court has now put limits on the ruling. In a unanimous decision, the Supreme Judicial Court has left intact other of the Petitioner’s convictions for drug dealing as well as the 10-year prison sentence that came with them.

The SJC has now set a limit for the retroactive reach of Melendez-Diaz. This new ruling affects the Petitioner’s earlier convictions. The SJC said it will limit the reach of the Melendez-Diaz case to convictions after June 25, 2009, unless cases older than that have not yet been reviewed by an appeals court.

The Petitioner was arrested in February 2004 in the case this effects. He was convicted in 2005, and had his conviction upheld on appeal in 2007 and in 2008. The US Supreme Court issued its ruling on June 25, 2009. The mathematical result?

The Petitioner does not profit from his famous case a second time.

“We see no fundamental injustice or unfairness in applying Melendez-Diaz as a new rule with prospective effect,” Justice Robert Cordy wrote for the unanimous SJC.

Attorney Sam’s Take On Criminal Appeals And Supreme Court Rulings

When we discuss the criminal justice system in this daily blog, we generally refer to the part before any appeal. If a defendant is acquitted, then there is no appeal. If there is a conviction, however, most criminal defendants appeal the matter.
Continue reading

by

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.
Continue reading

by

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.
Continue reading

by

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.
Continue reading

by

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.
Continue reading

by

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.
Continue reading

by

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.
Continue reading

by

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.
.
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.
Continue reading

by

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?
Continue reading

Contact Information
Cambridge, MA
Main Office
675 Massachusetts Avenue
Cambridge, MA 02139
Phone: 617.206.1920Fax: 617.491.3299Toll Free: 800.481.6199
Boston, MA
1 State St
Suite 2
Boston, MA 02109
Phone: 617.547.1205Toll Free: 800.481.6199
Needham, MA
250 First Avenue 2nd Floo
Needham, MA 02494
Phone: 781.675.2329Toll Free: 800.481.6199

Some Select Cases are referred to other attorneys for principal responsibility

By publishing this information on this Website, the Boston, Massachusetts law firm of Altman & Altman LLP is not claiming to represent any clients or cases mentioned here. The content provided is designed to inform readers and is not intended as legal advice.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2025, Altman & Altman LLP
JUSTIA Law Firm Blog Design