Toll Free (877) 721-4732
Phone (617) 206-1942

Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network.
To speak to Sam about a criminal matter call (617) 206-1942.

November 21, 2014


Ever have one of "those days"?

Michael Barboza, 33, of Bourne (hereinafter, the "Defendant") sure did.

It was one week ago today. The Defendant , just kept losing things.

First it was his temper.

He was allegedly involved in a road rage incident.

To start.

According to court documents, officers arrived to find a man standing next to a Volvo parked in the middle of the street who was speaking on a cellphone. Police say that the man had a bloody lip and red marks around his neck. When the man saw the officers, he is said to have yelled to them that “he just went into the house and he has a gun.”

The Defendant is said to have then come sprinting out of a nearby front door, running toward one of the police officers.

Court documents reflect that the officer drew his firearm and ordered the Defendant to the ground at gunpoint. In court documents, Ptl. Lucier said he drew his firearm and ordered Mr. Barboza to the ground at gunpoint. The Defendant apparently complied and was promptly arrested.

Loss Number Two – his liberty.

While handcuffing the Defendant, officers asked him where the gun was. He allegedly replied that he had a license to carry, and that the gun was inside the house.

Officers then questioned the man next to the Volvo about what had happened.

They were told that he had been driving north on State Road when a black pickup truck in front of him began to make a wide sweeping left turn so as to leave State Road and head onto Route 3. He said that he began to go around the truck when the vehicle swerved back into the northbound lane on State Road and blocked him in. He then said the Defendant then ran up to the his driver-side window and began to scream at him.

The man said he told the Defendant to get away from him or that he would have to protect himself. The Defendant allegedly continued screaming at him.

The man admitted that he then exited the Volvo and got into a physical fight with the Defendant.

The man claimed that he somehow got back into his car to call 911 and the Defendant went to his apparent property, returned with a metal rake and proceeded to smash the Volvo’s windshield.

Having apparently decided that the rake was not enough to send the appropriate message, the man said that the Defendant went back home with the rake and came back out with a silver semi-automatic pistol and pointed it at him. The man said that police then arrived at the scene.

According to court documents, officers proceeded to approach the house. They yelled for anyone inside to come out.

No response…at least audibly. The officers say that they did, however, receive an olfactory message. They received the very strong smell of marijuana.

The police proceeded to apply for and obtain warrants to search the house for the handgun, rake and marijuana. Upon executing the warrant, they say they found a silver KAHR Arms 9-millimeter pistol and a metal rake.

They said they also discovered an extremely extensive marijuana “grow house” operation. They said that the house’s interior had been modified to accommodate the cultivation of marijuana plants, and that more modifications were underway.

Hence Loss Number Three – gun, rake and weed.


By the end of the day, the Defendant had gained criminal charges comprising of two counts of assault with a dangerous weapon (a gun and a rake), assault and battery, malicious destruction of property greater than $250, disorderly conduct, possession of Class C and D drugs with intent to distribute, and the cultivation of marijuana.

On Monday, he was arraigned in Bourn District Court, pleaded not guilty and was released on $10,000 cash bail.

Attorney Sam's Take On How A Little Loss Of Temper Can Lead To A Criminal Justice Downfall

I hasten to point out that the Defendant, although facing a great many types of criminal charges is innocent unless and until proven guilty.

“Isn’t that kind of a joke in this case, Sam? I mean take the assault and weapons charges for example. The evidence seems pretty clear-cut.”

Well, let’s think about that. Most of the evidence about the event came from the gentleman immediately considered by the Commonwealth to be the “victim”. Of course, even by his own description, he should be charged with assault and battery.


The law in Massachusetts is pretty clear when it comes to assault and battery and I can tell you that said laws are prosecuted regurally. A person has the duty to try to retreat from the situation…not escalate the situation. This is particularly the case when the person has a cell phone through which he can call for help.

According to the “victim”, he hopped out of his vehicle to engage in physical combat with the Defendant instead of trying to escape or call for help.

“What about the destruction of property, the rake and the gun use?”

Of course, all that took place after he left his vehilcle to engage in a physical fight. Further, as far as we know so far, the only description of how the damage took place or use of the rake and gun is from the “victim”.

What if he is not telling the truth?

“Why wouldn't he be telling the truth?”

I don’t know. To avoid getting into trouble himself? After all, it is becoming better and better known that one of the best ways to avoid an arrest is to talk to the police first and become the “victim”.

“So how did he know about the rake and gun?”

Do we know that he did not know the Defendant and know he had a legal gun?

That’s right…legal gun. Assuming the Defendant had a valid license which he seems to have had given he is not charged with possession.

“What about the near attack on the officer?”

Sorry…I must have missed that. Oh, you mean when the Defendant came out of his home and was heading to the officer? One would imagine anyone would do that if they had nothing to hide and wanted to give their side of the story.

Of course, he did not get to give that side of the story, did he? The officer had him down on the ground and cuffed before he even got the chance.

Of course, he did comply right away, didn’t he?

“What about the drugs?”

Well, I must remind you that this is a blog…not a book. I cannot debate the whole case at this point. However, two parting remarks:

1. Don’t always jump to conclusions simply because that is the first spin you are given;


2. Have a great, safe and law-abiding weekend!

For the full story upon which this blog is based, please go to: and

November 19, 2014


My last posting examined this subject from the standpoint of whether the police have the right to grab your smart-phone without a warrant. It triggered rights guaranteed you courtesy of the Fourth Amendment to the United States Constitution.

Today we continue the search and seizure issue from another angle. Let’s say that the officer does have a warrant. We know that he then has the right to take the items. However, you have a great security program in effect and he cannot figure out how to open it.

He turns to you for help. Let’s say that you do not want to give him that help because what he finds may incriminate you.

Do you have to help them open and examine the items?

The key to this issue is the words “have to”. Clearly, you may voluntarily help them. You also know that, whether you help them or not, law enforcement may take the items and try to find away to examine the contents on their own.

If you tell them that you choose not to be so helpful in your own criminal justice demise, can they compel you?

This brings the debate to the Fifth Amendment, which protects suspects from having to testify against themselves. While the historical right to “plead the Fifth” is well understood , its role when it comes to cell phones is less obvious.

Before the days of cell phones and tablets, courts had to wrestle with various issues of daily life and investigations as they came to confront the Fifth Amendment. For example, if a grand jury subpoenaed someone to produce records in court, courts had to decide when obeying the summons triggered the Fifth Amendment.

In some instances, simply providing the paperwork in itself would be a statement. For example, doing so clearly indicates that you had the possession and control of those documents in order to produce them. Likewise, if there is incriminating evidence on your I pad, and you would prefer to distance yourself from seeming to have control or possession of it, if you give the officer the code…clearly you are showing that you know the code. It is probably your I pad!

What if the “key” to the IPod is a finger or thumb print? Same issue? Same finding by way of the court?

While there does not seem to be any controlling law in Massachusetts, Virginia courts have dealt with this issue in a sex crimes case.

The state alleged that the defendant had videos showing himself beating and sexually assaulting a complainant. They used a warrant to seize the phone, but could not view the videos since the cell phone was locked by a passcode. The defendant refused to unlock it.

In the case in which the “key” to unlock the cell phone was a person’s finger, the court found that a suspect may be forced to offer the use of his finger. The court based its decision on the fact that police may routinely require:

“Even though the act may provide incriminating evidence, a criminal suspect may be compelled to put on a shirt, to provide a blood sample or handwriting exemplar, or to make a recording of his voice,” wrote the court.

However, the same is not true when the “key” is a passcode. The court ruled that a suspect may not be forced to “disclose the contents of his own mind” by, for instance, telling the police a secret password. Requiring such disclosure, the court noted, amounts to “extortion of information” that basically requires a person to testify against himself in violation of the Fifth Amendment.

The Virginia man will have to provide a fingerprint or go to jail for contempt of court, but will not have to have to tell the police the passcode.

Attorney Sam’s Take On Reaching Beyond The Fifth Amendment

While we now have a ruling by the United States Supreme Court as to the Fourth Amendment’s effect on search and seizure of cell phones and tablets, we really don’t have a definitive answer regarding the Fifth Amendment. After all, the decision from Virginia is just a state court ruling that carries no larger precedent.

“So, it is worthless in Massachusetts?”

No. Because there does not seem to be a clear ruling here, the court may well consider what other courts have done in a similar situation. It is not binding upon the court, such as a ruling from the United States Supreme Court, but the court may well find it persuasive enough to find the same way.

This is clearly just the beginning of these types of cases. Up ahead are searches involving things like “The Cloud”, sent emails and texts and the like. We have already seen cases in which telephone calls made with wireless and cell phones may not be as protected with calls on what we now call “land lines”.

One primary issue is likely to be under what circumstances information sent and stored elsewhere is sent. In other words, what is the expectation of privacy?

Particular since September 11, 2001, the federal government, for example, has been given wider latitude to conduct its investigations under the guise of “national security”. Also, it important to remember that, in many cases, the courts can order a suspect or a defendant to do various things such as provide DNA samples, blood samples, fingerprints, etc.

As I reminded you in the beginning of Monday’s posting, the laws regarding search and seizure are complicated and ever-developing. Going it alone, without an experienced criminal defense attorney's aid becomes a big mistake.

Unless you are looking for a free and secure place to stay for a while, that is.

A long while.

To read the original story upon which this blog is based please go to , and

November 17, 2014


We have discussed some of the myriad of issues which occur when defense counsel seeks to suppress evidence. In short, the defense brings a motion to prevent the prosecution from using evidence against a criminal defendant because it was discovered in violation of that defendant's Constitutional Rights. It is an important tool to the defense and can often lead to the dismissal of the case altogether.

While this may anger some, that same “some” is often grateful for the efforts of counsel when it is their rights that were violated and the prosecution is only too happy to use that unconstitutionally discovered evidence against them.

But I digress. These are things you already know if you read this blog with any regularity.

I have also told you that the laws involving search and seizure can be confusing and are ever-changing. This is because of both the ever-changing society we share as well as the fact that laws, themselves, often change.

Recently, the United States Supreme Court handed down decisions which issues were brought about by new technology. As you may know, newer Apple I-Phones and I-Pads have an option which allows the owner to lock the I-Item and use the owner’s finger or thumb print as the only “key”. This, of course, makes it difficult for anyone other than the owner to open and use the I-Item without possession of the owner’s finger or thumb.

This is an extension of the problem which had already existed for police wishing to invade smartphones and tablets. There have been a number of privacy improvements which include expanded encryption and passcodes.

After all, we do live in an age wherein identity theft and cyber-theft is a valid concern. As a result, we take precautions to keep our information private. Often, the information is kept on our smart-phone these days.

But can the police, without a valid warrant, simply grab your phone and peruse the information inside? The United States Supreme Court has now answered that question.

While the police can search virtually anywhere with a valid search warrant, the issue is usually what they can do without such a warrant.

Not so long ago, police could search a cell phone whenever they liked. This was ended by the recent Supreme Court ruling that requires law enforcement to get a warrant before they can access the trove of evidence on such items.

In effect, the judges said that a mobile device is subject to the same privacy protections as a person’s home.

In their decision, the Supreme Court justices admitted that their ruling might make police work more difficult, but said that the right of privacy extends to the information that we carry with us on our mobile devices. They ruled that:

“Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life,’ (Boyd, supra, at 630). The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.”

Attorney Sam’s Take On The Right To Privacy

“But, Sam, if the police can’t grab a suspect’s smart phone without a warrant, then the suspect is likely to get away with important evidence.”

Maybe, but the law protects a right to privacy. There is a trade off in terms of law and order. It is the same thing as if the sought evidence were at a person’s home. Without a warrant or one of the exceptions to the law, your right against unreasonable search and seizure prohibit the police from storming their way in.

We will likely see many more cases like this as the law catches up to technology. What about “the cloud”? What about when you text something to someone…fair game?

We will examine these issues as time goes by. First, though, let’s deal with another issue that is closely related to the smartphone and tablet issue. Namely, When must a citizen “voluntarily” aid the police in searching their device?

We will examine that question in Part Two.

To read the original stories upon which this blog is based please go to and

November 13, 2014


No, this is not a re-posting of my previous blog. This case is from Bristol, Connecticut, and the officer was allegedly assaulted by a woman in the field while in mid-investigation.

Just to show that these dangers do not just face officers in the Bay State.

Stashia M. Luddy, 27, of Bristol and hereinafter, the “Defendant” is that woman. She is accused of attacking a police officer after refusing to obey orders.

You see, authorities were investigating the report of another alleged attack at West End Café on 8 Divinity Street in Bristol that had left a man bleeding earlier.

The officers report that they responded at about 1:45 a.m. to investigate a report that the man had been assaulted. When officers arrived, they noticed large groups of people in front of the bar. There was a man bleeding inside the business.

As they were investigating the scene, the officers, as well as members of the staff, say that they asked the Defendant to leave.

She refused to do so.

Details of what happened next seem to be a bit fuzzy, but officers say that the Defendant, instead of leaving, attacked one of the officers and threatened "bodily harm" to another police officer.

It took 10 officers to diffuse the disturbance, police said.

Police charged the Defendant with first-degree criminal trespass, assault on a police officer, interfering with a police officer, second-degree breach of peace and second-degree threatening. She also faces a separate charge of assault on emergency personnel

Officers also say that the bar's permit holder blocked their investigation into the assault. As a result, he has been awarded with charges of interfering with an officer and disorderly conduct.

Attorney Sam’s Take On Police Victims And Unruly Civilians

There are still some folks out there who believe that professional police officers, trained for the dangers and rigors of fighting crime, should expect that, in the line of duty, they are going to face a certain amount of harassment and disorderly conduct.

Maybe so. But that does not make it any less illegal.

The fact is that assaulting a police officer, at least in the Commonwealth, is a more serious crime than assaulting a mere citizen. It is the difference between a felony and a misdemeanor.

“Well, shouldn’t it be even worse when a police officer assaults a civilian?”

I think it should. But, I have found that the results of that situation usually include charges of “Assault and Battery on a Police Officer” against the civilian. Or…at least a charge of resisting arrest.

“What’s the difference?”

The answer that most defense attorneys will tell you is that the difference is how badly the accused civilian defendant is beaten up.

But I digress.

The important part for you to remember is that interfering with an arrest or noncompliance with police officers’ orders during an investigation (if not in simple daily life) will likely bring you a forced visit behind bars.

By the way, there are reasons for this. We hire and pay law enforcement professionals to keep us safe and protect us. For the most part, they do and should not have to deal with harassment or assaults while doing so. In my opinion, not that you asked, the problem comes when they engage in rather unprofessional conduct themselves and then part ways with the truth to explain it.

But I digress again.

There are all kinds of statutes under which one may be charged for such conduct, ranging from misdemeanors to felonies. Further, when the case comes to court, who’s word do you think the prosecutor (at the very least) is going to believe?


"What if it is a clearly obvious situation? What if the officer who claims he or she was attacked is simply one of several officers who are at the scene and clearly in charge?"

Worse yet. All those officers will end up agreeing and the Commonwealth will simply have an even stronger case against you.

So, it goes to one of the chief messages I have oft-repeated to you. When investigating officers come to call, comply. If it is something like you being questioned or asked if they can simply enter your home or vehicle without a warrant, you can politely indicate that you wish to have a lawyer present first to advise you. But, should they force their way in, you should step aside and stay out of their way and not answer interrogations.

These days, invoking your rights is dangerous enough. Insisting upon them when it is just you and law enforcement is simply fool-hardy.

For the original story upon which this blog is based, please go to

November 11, 2014


In the past, I have acknowledged that being a police officer is a hard and dangerous job. Of course, I was referring to their time while at work, not at home.

A Boston Police Officer, however, recently faced purported danger in his South Boston home. Mary Niland (hereinafter "Defendant Ex") of South Boston is accused of attacking both him and a lady friend last week. More specifically, she has been charged with breaking into the officer's home in the middle of the night and assaulting the two as they were in bed.

“[Defendant Ex], who is his former girlfriend broke into his home uninvited and crept into the bedroom where he was staying with another woman,” argued the prosecution at the arraignment. She went on to tell the court that the officer and Defendant Ex were no longer a couple, but that, at 2:30 a.m. Monday morning, she broke in and went on the attack. That would be the charges of, at least, Breaking And Entering and Assault and Battery.

She further argued that, “He indicated that she was belligerent and that she began punching both him and his female companion as they lay in bed…The homeowner reported to officers that he jumped out of bed and attempted to restrain [Defendant Ex] and in the struggle [Defendant Ex] fell down the stairs.”

You see, Defendant Ex came to court to face charges bruised and battered. In fact, her eye was swollen shut. Further, she had the colossal nerve to claim that she, not the police officer, was the actual victim.

In court, Defendant Ex’s attorney argued this position and that her client and the officer were still a couple. “This is not a case of her trying to attack these people…Looking at her injuries alone she was hit, she was punched in the face with a closed fist”, argued counsel.

Defense counsel further argued that, “She came home after a night out and she found a woman in bed with her boyfriend and at that point he took that out on her.”

Nonetheless, the officer has not been charged with any criminal activity. The Commonwealth indicates that he is considered the victim. As a result, they say, they are not releasing his name.

Interestingly, as you may recall, alleged victims’ names are often released in assault cases. Of course, they are not usually police officers.

In the meantime, Boston Police say that they have opened an internal investigation.

Defendant Ex was released on bail.

Attorney Sam’s Take On Victim, Victim, Who Gets To Play Victim

Isn’t it interesting how these cases work out?

Please understand that I have no inside information about this case. Nor do I know how this home is laid out. For example, where the stairs are as compared to Defendant Ex’ alleged attack.

I don’t know who was victimized here…or if both the officer and were victimized. It does seem, though, that there are allegations going both ways with, at least, one of the parties showing injuries.

…Of course, that party would be the accused. Not the professional police officer. One would imagine that a fair-minded Commonwealth would investigate and prosecute both claims and let the fact finder decide.

“But, Sam, what if the Commonwealth refuses to do that?”

In all likelihood, they will refuse to do that. After all, they have decided who the guilty party must have been. As we have discussed many times in the past, once the investigating officers make that almost instantaneous deduction, it becomes written in criminal justice stone. No point in revisiting and, perhaps, confusing , things I guess.

There is one thing that Defendant Ex can do. She can file a request for a criminal complaint at the local criminal clerk’s office. There would be a hearing as to whether there is probable cause to issue the complaint against the officer. As you will recall, probable cause is a very low burden. Basically, if Defendant Ex describes all the elements of the charge, the complaint will issue.

“Will the complaint issue?”

Maybe and maybe not. I have handled a great many of these matters. Too often the clerk will turn a “blind ear” to the evidence submitted at a hearing and assume that seeking the complaint is simply “pay back” for the pending criminal action.

However, should the complaint issue, it often will bring up another issue for the Commonwealth. Both the officer and Defendant Ex may raise their 5th Amendment rights not to testify about the event because doing so may incriminate them.

At least, that is the way it usually plays out.

In this case, though, it would appear that the officer has another witness who we can expect will testify against Defendant Ex and not the officer. That would be the new girlfriend. Therefore, the Commonwealth can decide to have neither Defendant Ex or the officer testify and simply go on her testimony.

My rendition of the facts in today’s blog may seem biased against the officer. You might wonder if I think it is impossible for an officer to be attacked.

Oh, it can happen. Stay tuned to my next blog.

For the original story upon which this blog is based, please go to

November 6, 2014


I suppose it is fitting that we discuss the night for tricking and treating right after Election Day.

So how was your Halloween weekend? Still have your liberty, if not your dental health?

Some people had little trouble with the law over the weekend. Interestingly, though, these folks were not out on the street looking for trouble. Sometimes, though, trouble find you.

You may think I am referring to the celebrated drug sweep by the Boston Police Department. As they proudly posted in their blog, “Operation Halloween” proved a great success. It netted 14 arrests.

In keeping with “coordinated and strategic initiatives to advance public safety”, officers launched ‘Operation Halloween’ with the intent of interrupting the supply and demand of illegal drug trade. The investigation included several undercover officer “buy and bust” operations and culminated in a warrant sweep targeting 14 individuals for possession of drugs and outstanding warrants.

As any regular reader of this blog would expect…those allegedly in possession of illegal drugs were also charged with having the intent to distribute.

Of course, those allegedly in the drug trade were not the only ones who suddenly found themselves facing criminal charges. Take Carl Holmberg, for example.

Mr. Holmberg, 44 is, or has been, a captain of the Revere Fire Department. Now, he is the "Defendant"; he, too, was arrested over the weekend. He was initially charged with three counts of assault and battery with a dangerous weapon and one count of assault and battery on a child.

The Defendant apparently told police he was trick-or-treating with his wife and two children when he saw the three boys causing a disturbance. When he confronted them, they became aggressive and he became afraid for his safety. He told police he didn’t strike anyone with the golf club, which he carried for protection.

His lawyer explained that he acted in self-defense, looking to protect his family.

Of course, the golf club is a problem. I remind you that self-defense demands that you meet the threat with the equal level of force. But I digress.

According to some witnesses, there were kids causeing a ruckus in the neighborhood. When the the Defendant stepped in to help, several teenagers, as many as 20, attacked him.

One of these "teens" was 11 years old.

The Defendant's wife said that the Defendant was just defending himself against some rowdy trick-or-treaters.

"It was chaos and mayhem. I saw my husband fall, they were jumping on him I called at 7:43 to the Revere police department," she said. "When they came after them, whatever happened... I was too busy screaming, begging the police to get here."

The family of one complainant is outraged. The stepfather said that while the injuries weren't severe, he doesn't believe the Holmbergs' story.

"There was an 11-year-old, a 14-year-old, 13-year-old, a few girls. They were just trick or treating. Two went to the hospital... He's doing alright everybody's doing alright, they fine, we're going to court tomorrow, that's it."

On Monday morning, the matter came for arraignment in Chelsea District Court. At the arraignment, prosecutors claimed that the Defendant hit an 11-year-old boy and the boy’s two 14-year-old friends in the melee. They further said that when police arrived, they found the Defendant using a golf club to restrain one of the teenagers.

By the way, such restraint in itself can amount to assault and battery with a dangerous weapon. But I digress again.

The three youths told officerbother Defendant yelled at them for cutting through yards. They said they ran away, but that he confronted them a second time.

One 14-year-old said heattacked him and threw him to the ground. The 11-year-old said he was struck in the back of the head. The third boy said the Defendant hit him in the arm and leg.

When police spoke with the Defendant, they said they detected the smell of alcohol and saw that his eyes were glassy.

The Defendant, who has 15 years of service with the fire departmen, has been suspended with pay pending a disciplinary hearing.

Attorney Sam’s Take On Unexpected Police Attention

Most of us cannot know when the criminal justice system is about to come barreling into our lives.

The gentlemen arrested in the drug sweep, one would assume, had reason to know that there was always a possibility that they would be in touch with law enforcement at some point. One would expect that they gave some thought to legal representation.

The Defendant, one can also assume, never expected to be in the predicament in which he finds himself. Whatever the actual factual scenario, we do know that there was some kind of an altercation and folks often act rashly and foolishly in such situations…particularly when they believe their family is in danger.

By the way, given the history of the area (which includes reports of dangerous dogs walking the streets), and the instant events, they could well have been.
But, the fact remains that one never knows when that brief instant it takes to either make a decision or act instinctively will land one in the criminal justice system in the seat of the accused. Sometimes, it does not even take that moment. Sometimes, someone has simply made up a story for whatever reason.

This is why you need to keep in mind that this type of nightmare is something that is waiting at the proverbial door with its jaws open wide and dripping with saliva for the sweet taste of “justice”. It is why you should consciously decide what you will do should it happen. My blogs have made certain suggestions (such as act courteously, don’t try to “play” with the nice officers and be ready to contact your experienced criminal defense attorney).

There are some times, though, you want to be especially cautious because law enforcement is on guard and looking extra-carefully. Often with good reason. The holiday season has many such days. Halloween is only one of them.

Of course, the Defendant is not the only law enforcement type who is finding himself dealing with the criminal justice system in a way he never expected this week.

Stay tuned for my next posting.

For the original stories upon which this blog is based, please go to , and

October 31, 2014


Happy Halloween everybody!

Have your plans for tonite all ready? I will be hiding under my bed at my abode in Salem.

Whatever your plans, be careful not to take them too far. Law enforcement has a way of being overly-on-hand on nights like this. With good reason, actually.

After all, there was that "Great Pumkin Riot" not so long ago.

Oh. You did not hear about it?

It took place earlier this month in Keene, New Hampshire. When the dust settled, three people were said to be in custody.

The three gents were Forest M. Wilkinson, 18, of Spofford N.H., Michael Bulman, 19, of Scituate, Mass., and Tory Knaff, 18, of Groton, Conneticuit. According to reports, Wilkinson was released on $2,500 bail and faces a misdemeanor count of criminal mischief for allegedly tearing a street sign out of the ground. Bulman and Knaff were each charged with one felony count of reckless conduct for allegedly throwing a beers into a crowd. Both were released on $5,000 bail.
At last count, A fourth gentleman, Keene State fellow student to Bulman, James A. Schaefer III, 18 was also arrested by police in connection with the disturbances latlater

It was Keene's 24th annual Pumkin Festival. According to reports, the festivities were brought to a close as tear gas and pepper spray filled the air and police dressed in riot gear dispersed the unruly crowd.

"State and local public safety officials are on the scene and have been working closely together to defuse the situation," Governor Maggie Hassan said a statement. "We will continue to monitor the situation and provide any assistance necessary to Keene."

Bonfires burned into the early hours of the next morning on city streets that were littered with broken beer and liquor bottles, video from CNN affiliate WMUR showed.

"I am saddened and disheartened at the events surrounding this year's Keene Pumpkin Festival," said Keene State College President Anne Huot. "Despite the concerted efforts of organizers, city officials, police, and Keene State College, there continued to be disruptive behavior at parties in multiple locations around the city, injuries, and property damage."

Huot said Keene State students bore some of the responsibility for the unruly behavior, but also suggested that some outside the community had billed the event "as a destination for destructive and raucous behavior."

Authorities weren't able to provide exact figures, but CNN affiliates reported actual dozens of arrests and the Southwest New Hampshire Mutual Aid Dispatch Center reported multiple ambulances being sent to the scene.

"I got hit with a Jack Daniel's bottle, like across the face," Keene State student Roger Creekmore told WMUR.

18-year-old Steven French, who was visiting from Haverhill, Massachusetts, described the chaotic scene to the local paper, The Keene Sentinel, as "wicked...It's just like a rush. You're revolting from the cops," he told the paper. "It's a blast to do things that you're not supposed to do."

Part of the "wicked" "blast" included shouting expletives at police, starting fires in the road, pulling down a street sign and apparently trying to flip over a Subaru, the Sentinel said.

Just your typical good clean "rush".

Because of arrests (140 last year, the Sentinel reported) and injuries at past festivals, the community has held forums in recent years -- inviting police and emergency room doctors as well as residents -- to explore ways to mitigate the violence, vandalism and littering that come with the celebration.

That would explain the officers in riot gear dispensing free tear gas and pepper spray to the crowd.

The pumpkin festival is a source of pride for the community of 23,000 people about 80 miles northwest of Boston. Last year, the event set a world record with 30,581 lit jack-o'-lanterns, according to the festival's website.

"It's ridiculous. It's not Pumpkin Fest," Jacob Gowans, another Keene State student, told WMUR. "We're supposed to have a fun weekend. This is stupid."

Yeah. It was supposed to be a really "wicked" "rush".

Attorney Sam's Take On unruly Events

It really does not matter where you go these days. Festivals can get out of hand just as individuals out celebrating Halloween can easily find themselves in trouble.

It does not take a rocket scientist to know that the alleged behaviors mentioned above can land you wearing unwanted jewlry on your wrists.

But it often does not take such extreme behavior to put you in that position either.

Here are a few quickie suggestions of how you might act should you prefer not to be in the papers tomorrow...

1. Don't destroy public property. The fact that you are part of the public is not a defense.

2. Don't destroy private property. The fact that you "know the dude" is not a defense.

3. If you are with a pal who decides that he would like to be a sudden guest of the Commonwealth. It is time to seek safer company.

5. If /when the police come to detain your pal, do not attack or yell at them. Do not tell them that they have no right to do so. You would be surprised at what rights they have.

6. If the police have decided to detain you, same advice. Go quietly. Be polite. And Other than "pedigree" information...shut up.

Have a great, safe and law abiding Halloween Weekend!/2014/10/19/us/new-hampshire-pumpkin-festival-riot/

October 27, 2014


Well, it’s a Monday morning and so I am sure that you, like me, witnessed plenty of folks moaning and groaning on their way to work, school, etc. this morning. Rest assured, though, there are those who had more reason to groan about their destination than most.

Take 26-year-old Cassandra McInnis of North Adams (hereinafter, the “Defendant”) for example. She was on her way to North Adams District Court this morning.

She had a bit of a traffic incident this weekend. No, not the typical kind.

While it is not yet clear what lead to it, she was involved in a traffic stop on Saturday evening at 5:30pm. What has been released is that she was stopped for a “motor vehicle infraction”.

Unfortunately, law enforcement says that they discovered red 83 bags of heroin in the car during the stop.

The police charged her with Possession with Intent to distribute class A narcotics (heroin), intent to distribute the heroin within a school/park zone, being present where heroin is kept, conspiracy to violate the drug laws and various motor vehicle offenses.

Yep! All those charges for having 83 bags of heroin in the car.

Nonetheless, she was released on bail from police custody.

Attorney Sam’s Take On Drug Trafficking Offenses And The Laws Of Search And Seizure

“Boy, Sam, I guess This is one time when the Defendant should not have stopped but tried to outrun the police, huh?”

Not at all! That would have only made her situation much worse.

If she had done that, then the police would have given chase and she would have driven right into additional charges relating to the car chase…or worse. Further, she would have probably been held without bail until arraignment. Finally, she would have given the Commonwealth the extra evidence of “consciousness of guilt” to present both at arraignment and to a jury.

Not only that, but the police still would have found the heroin…but without a potential very serious motion to suppress evidence.

“What do you mean?”

If the Defendant had led the police on a chase, then there would be no question as to whether she was arrest-able when they caught her (which they would have). Therefore, once they caught up to her and removed her from her car, the police would have done what is known as an “inventory search” of the car since they were taking her into custody and would have to impound the car. I do not know where in the car the heroin was allegedly found, but it would have been found.

In the case as it is, there is likely a strong motion to suppress motion coming. First of all, we do not know why the police had the right to pull her over. Let’s assume they have an answer for that (they usually do). There is a difference between having the right to pull her over and the right to search the car.

If the drugs were found afoul of the search and seizure laws, then the drugs should be suppressed, which would mean that the Commonwealth cannot use them in evidence.

No drugs…no case.

“Well, what’s with all these charges? Did they find her mid-drug transaction? It sounds like a lot of charges for simply having the bags of heroin in her car.”

Yes, it does. However, that is the way cases like this get charged. There are various strategic reasons for it, but the reason the Commonwealth can bring all these charges based on simply finding the drugs is that the elements to all of them are met.

The Commonwealth contends that the drugs were possessed with the intention to distribute them. Even if there is no other evidence of this, the Commonwealth assumes this based on the quantity and packaging of the drugs. The location of the car stop was apparently in a school zone, thus that charge. Since drug trafficking is generally something that is done with more than one person, it can be a conspiracy to violate the drug laws. Clearly, she is in the car with the heroin, so she is present where the drugs are.

The Defendant is facing a number of felony charges and is facing a mandatory minimum sentence of imprisonment.

“So, if she loses the motion to suppress, she is absolutely going to go to jail?”

As usual, the answer is “not necessarily”.

First of all, we do not know where the drugs were allegedly found. Perhaps she was unaware of them. Second, what if the alleged finding of the drugs did not take place as the officers have indicated? Remember, reasonable doubt can be connected to a variety of things.

Finally, the Commonwealth is not forbidden to enter into a plea bargain with the Defendant which results in no jail time. However, the Defendant will be at the Commonwealth’s mercy on that one. Only the Commonwealth can decide to simply lessen the charges brought against the Defendant.

So, once again, there are many moving parts to what can happen.

The one thing I can tell you?

Hope she has an experienced criminal defense attorney!

For the original stories upon which this blog is based, please go to and

October 24, 2014


Robert E. Murphy of Ashland, a 59-year-old (hereinafter, the “Defendant”) gentleman is, or was, a Hopkinton school bus driver. He has now been arrested and charged with operating a motor vehicle under the influence of alcohol and operating a motor vehicle to endanger. According to WBZ, this is his third OUI case, the last having taken place 25 years ago.

The Defendant’s arrest, together with his history, has touched off renewed interest into how many drunk driving cases a person can have before a license is suspended or lost.
According to the report, it is very difficult to have one’s driving priviledge suspended or terminated in Massachusetts. The article explains that “In general, just being charged with an OUI offense—no matter how many times—is not enough to have a license suspended or revoked.”

This verbal slight of hand, perhaps hopeful to shock the reader, states something that is absolutely true.

Similarly, someone who is charged with bank robbery is allowed to walk into and out of other banks…no matter how many times he is accused.

It is no big surprise to anyone with the most rudimentary knowledge of the criminal justice system in this country.

Being accused is being accused. It is not being convicted. The driving privileges are in much different condition should a driver be convicted of OUI.

Regardless of how many years ago the past convictions are.

Attorney Sam’s Take On Penalties For OUI Defendants

The temporary loss of license can begin once the driver is arrested under certain circumstances.

For example, if the driver refuses to take a breathalyzer, the driver loses his license for six months. It is sort of a punishment for making the Commonwealth’s job of proving guilt a bit tougher.

Contrary to what you might be led to believe, OUI charges increase in severity the more times a conviction is obtained. The first and second OUI convictions are misdemeanors, and the license is suspended for one and two years, respectively. However, with a particular first time drunk driving charge, there is another package that is usually available.

That package, if the defendant fulfills the requirements, the case can resolve in a Continuance Without A Finding. Basically, the defendant admits that there are sufficient facts to find him guilty. While a CWOF does not count as a conviction, the registry counts it as a conviction and suspends the license. Further, if the defendant is arrested a second time, the CWOF will count as a prior conviction for OUI

Namely, the second case will be considered a second offense and sentenced as such.

The realistic possibility of incarceration begins upon the second offense.

It may be that a driver will qualify for a “hardship license”. In such a case, the driver shows that he needs to be able to drive to and from work. Should he convince the RMV, he will be allowed to drive to and from work or other necessary appointments such as school, medical and legal appointments.

Also, a defendant facing his second conviction for OUI, the driver’s car will likely be with an Ignition Interlock Device, which requires him to take a breath test before starting the car will start as well as at random intervals while driving.

The third time a person is convicted of an OUI, the offense becomes a felony, according to Chapter 90, Section 24 of Massachusetts State Law, and the license is suspended for up to eight years. It also carries a mandatory jail sentence of at least of 180 days. A fourth conviction for OUI may bring a permanent loss of license. However, when all circumstances are considered, it might simply be a longer suspension.

Of course, jail or state prison time is likely to accompany such convictions.

Laws for motor vehicle homicides also differ. We discussed a case I successfully tried earlier this year in which the defendant was found “not guilty” although there was no question that the vehicle he was operating struck and cause the decedent’s death. In that case, the driver was not alleged to be drunk.

However, if the driver in a vehicular homicide is under the influence of drugs or alcohol, the potential penalties are heavier and a driver is looking at significant prison time.

The case of the Defendant at issue in this article was a school bus driver. Commercial license requirements are likely greater and, one would think, so are the penalties.

Again, should the last OUI conviction be many, many years ago, it does not matter. The previous conviction(s) count as aggravating factors and dictate the charge to be brought.

Of course, one might wonder why a gentlemen who has multiple OUI convictions in the past got the job as a school bus driver.

Just Sayin’.

Have a great, safe and law-abiding weekend!

For the original story upon which this blog is based, please go to

October 23, 2014


Ok, I admit that it is not still yesterday; I did not get this entry up yesterday. It doesn’t mean that I did not try…I was just out doing battle for my client longer than expected. Doing the job right has to take precedence. Believe me, when you are my client, you will appreciate those priorities.

Sometimes, you just can’t do everything.

Which brings us back to our discussion. The “Yes Means Yes” approach to combatting campus sexual assault cases.

Do not kid yourself, by the way. Today we are talking about it being “merely” college rules. Tomorrow it will be embedded in the criminal law. After all, if it “works” for the kids, shouldn’t it work for the “adults” as well? Particularly since most college students are adults under the law?

Proponents of new simple answers to complex problems like “date rape” and similar sex cases will shrug their shoulders when confronted by the difficulties in the approach.

They will simply say that, “Well, you can’t make everybody happy.” Of course, they are right. No one approach can satisfy everyone. There are nuances and various ways of looking at a problem. Different people have different perspectives. However, as adults, I think we have a responsibility to think through “solutions” to complex problems and not simply cater to those who simply want a quickie solution that feels good on the surface and ignore what it creates down the proverbial road.

In other words, I think you have to consider the various aspects and make a decision in accordance with your priorities. I heard a lot about priorities from my mother while growing up. Particularly when I was more interested in things OTHER THAN my schoolwork. I did not like hearing about it. It was not always terribly pleasant. So, I understand how our politicians feel.

The thing is, though, I grew up.

Attorney Sam’s Take On The Easy Answer Approach (Once Again) Part Three

Understand my bias. I believe in certain Constitutional guarantees like Due Process, Presumption Of Innocence and the prosecutor's Burden Of Proof. I also tend to think that logic and human behavior should be taken into account when making decisions which can ruin lives are involved.

Even more than what politically sounds and feels good.

The “Yes Means Yes” approach makes those who want to prevent campus sexual assaults feel good so long as they do not think it through. It really fixes nothing, but merely creates more problems.

First of all, a central issue in these cases is that of credibility. In a case which focuses on consent, you generally have a complainant who says that the sex was against her will and a defendant who says that she had consented. The law is also clear that a complainant does not have to have put up a fight against her assailant. The fact that she feels intimidated can be enough.

The problem of credibility is not helped by the new approach. The positions of the complainant and the defendant will remain the same. Somebody is likely lying. The jury gets to choose who it is. Generally, the “Why would she lie” argument by the prosecution is one of the biggest hurdles to the defense. That, also, does not change.

Often, there are issues of extent. In other words, the testimony is that the two began “fooling around”, and nobody had a problem. Then, at some point, the complainant says she was no longer willing. At that point, you have the issue of force…or, at least, against the complainant’s will.

It not being in accordance with the complainant’s will is enough to gain a conviction. Now, however, there is an artificial test inserted to the sexual engagement. The complainant must have said “Yes”.

“Well, what if she is the aggressor?”

Not enough. Let’s say that that Future Complainant grabs Future Defendant’s belt, undoes it and starts to pull down FD’s pants. Technically, by the way, if FD does not like that, it was the crime of indecent assault and battery…so FC had better be guessing right that FD wants that done

In any case, after FD’s pants are down, FD returns the favor and, before you know it, the two are in a passionate embrace full of kissing, heavy breathing and touching. Now, FD begins to take the necessary step to accomplish sexual intercourse.

While there is no question that FC has not, and can not, lose the right to say “No”, if she is willing to continue, is it necessary for her to actually say “Yes”? Well, under the new approach, the answer is “Yes” she is.

“Is that realistic?”

Probably not. However, if she does not say “Yes”, they have sex and she regrets it tomorrow…FD has a big problem. She did not say “Yes”. He is guilty of rape as far as this approach is concerned.

On the other hand, how are the roles of complainant and defendant decided? What happens if the initiator is the one who only wanted to go “so far” and yet felt forced to go “all the way”? Absent the “Yes Means Yes” approach, shouldn’t that person have the right to not have gone through sexual intercourse?

Well, it is not clear if “Yes Means Yes” contemplated such a thing. Reason, should it be considered valid in this situation, would indicate that both parties were required to say “Yes” throughout the rapidly-changing fumbling around acts involved. Otherwise, I suppose they both should be thrown out of school and/or prosecuted.

But, then, we know how these cases tend to be decided when it comes to choose a complainant.

But I digress.

I remind you that this is a case in which everyone agrees upon the truth; that does not always happen. What does often happen is that a complainant declares the lack of permission a day or longer after the event. I suppose that the “Yes Means Yes” prosecutor in such an instance has a pretty easy case. But is it just…considering what being expelled, convicted of rape and registering as a sex offender will do to a life?

We are not talking about your typical street crime of rape here.

Clearly, as mentioned a couple of blogs ago, this shifts the burden onto the accused in an almost impossible way.

Should the couple enter naturally into the sex act, a time when conversations is often not the central urge for either, whoever decides that they did not want it retroactively has a lot of power to literally destroy the other person’s life. Simply because that same person (soon to be “complainant”) did not choose to utter the y-word.

So, these are just a few of the many problems with this approach which sounds and feels good if you say it fast and then forget about it before you have to think.

It is one of many scary trends in our criminal law about which I am often trying to warn you. Simply put, if you have a sex drive and are a student, or simply have a sex drive that involves another human being…understand that, by satisfying that drive…you are taking quite a risk.

If you or yours took that risk, and if it looks like the gamble did not pay off…engage the services of an experienced criminal defense attorney to try to manage the situation and protect your rights.

If not the rest of your life.

October 22, 2014


We have been discussing California’s new “Yes Means Yes” bill and its accompanying app.

As I have mentioned, the “Yes Means Yes” approach is not really brand new. At least here in the Commonwealth, various colleges and universities have been using the approach.

I know...I have handled the cases.

In case you are wondering why the changed approach, the schools will tell you it is simply to combat the ever-growing threat of campus sexual assaults. I would suggest, as I have in the past, that the true reason is that the schools were being criticized for not having proper procedures to follow when dealing with such assaults.

In some ways, similar to what I feel drives much of the criminal justice system; the threat of bad press. No, academic authorities do are not really politicians on their ways to higher posts (like district attorneys), but they do need to populate their colleges and…and this cannot be overstated…they are responsible for our kids. Thus, even aside from covering themselves, the schools do face a very real problem in fighting sex crimes.

The only question is which is more important to them...protecting their students or looking like they are protecting their students.

Sexual assaults are not the only types of crimes which can happen on a college campus. Yes, school have to protect their students from such crimes. Just like they have that same duty with crimes which do not claim the headlines such as simple assaults and drug crimes.

I find it interesting that there are no brand new approaches to these other non-media-worthy crimes. But I digress.

This past Labor Day weekend, a group of Yale freshmen met in a classroom for a 90 minutes workshop wherein different levels of sexual assertion were discussed and acted out.

Examining common situations in which young healthy adults find themselves interested in each other, the group role-played situations involving one youth asking another out for a date. What they found was what we already knew. Folks have various reasons to be a bit dishonest when it comes to showing interest.

Of course, adults face this issue every day, so one can imagine how difficult it is for kids. Especially since they may be in their first potential dating experience, fresh from home where mom, dad and church may have been echoing the Nancy Reagan “Just say no” advice.

Of course, the problem becomes even more confusing when the situation goes from agreeing to a date and the initiation of sex. The problem is that there are unquestionably gray areas.

Most of the male students expressed some nervousness about accidentally running afoul of consent rules, especially because drinking usually precedes a casual hookup. Some wondered whether training can really prepare you for what is often sex between relative strangers.

Especially young strangers. From different backgrounds. Some of whom may not even know what they are doing.

In fact, let's face it. Some of these instances involve under-age drinking and even what amounts to statutory rape. However, in many cases, we sweep those considerations aside unless it is to consider it purely against the one we end up naming "Defendant". the face of such confusion, why not have an etched-in-stone law like “Yes Means Yes?

Attorney Sam’s Take On The Easy Answer Approach (Once Again) Part Two

In case you have forgotten, this is not A “sexual relationships” Blog. The point of my postings is to educate people on the criminal justice realities that are lurking outside their doors, Ready to pounce, at all times. In other words, I am not going to be solving the question of the best approach between college students when it comes to sex. However, the “yes means yes” policy, followed by many universities and, potentially the direction in which our legislators decide to go in order to see “tough on crime” is something that should concern you.

I suppose, in order to be completely candid, I should tell you that my personal view is that A potential sexual partner does not, at any time, even midway through, lose the right to say “no” or” stop”. Any continuation after that point I’ve the other partner, is clearly sexual assault and/or rape.

“So…that’s wonderful, Sam. We now know that you are not in favor of rape. You have also told us that people, kids particularly, find certain dating and sexual circumstances somewhat confusing…so what are these threatening dangers lurking outside our doors in connection with "Yes Means Yes?"

Unfortunately, that will require one more…somewhat shorter…blog on this subject which will be posted later today.

Gotta get ready for court now…but still trying to get these blog up there.

I promise…I will move on to another subject after the next one.

For the original story upon which this blog is based, please go to

October 16, 2014


It really is quite a comfort, isn’t it?

As the article says, “Want to be sure you’re not raping someone? There’s an app for that.”

As discussed in my last blog, the app to which I refer is the upbeat-named “Good2Go”.

Although I do not seem to be able to download it onto my IPhone, it is said to be a free “consent” mobile phone app that “targets college-age adults”.

Maybe that’s why it won’t download for me. But I digress.

Good2Go president Lee Ann Allman told Slate magazine she was inspired to create the app after talking with her college-aged kids about sexual assault on campuses in America, and says on her LinkedIn page she hopes it will “help alleviate the culture of confusion, fear, and abuse on campus”.

The app emerges from the darkness as California adopts the new “yes means yes” sexual assault bill we also discussed on my last blog.

The app emerges from the darkness as California adopts the new “yes means yes” sexual assault bill we also discussed on my last blog.

So…problem of campus sex crimes solved?


Attorney Sam’s Take On The Easy Answer Approach (Once Again) Part One

In a way, it may be the perfect app for a generation in which communication between two people verbally and live is more and more infrequent. All communications are actually done through the app although both potential partners are presumptively in the same room.

Would-be-lover #1 initiates the app that he or she would like to have sex now. Would-be-lover#2 then is handed the device and has to answer the inquiry “Are we Good2Go?”

Hence the clever title.

WBL#2 now gets to choose from a few pre-programed responses. One such response is “No, thanks”. This triggers the advice “Remember! No means No! Only Yes means Yes, BUT can be changed to NO at anytime!” I am a wee bit confused as to why this mini-lecture is directed at the potential lover who is already saying “No”, but, then, I am not an app programmer.

Less negative responses bring other results from the app. “Yes, but…we need to talk” or “I’m Good2Go” triggers a test as to sobriety. WBL#2 gets to choose from “Sober”, “mildly Intoxicated”, “Intoxicated but Good2Go” or “Pretty Wasted”. The last choice, of course, means that WBL#2 cannot consent any more than a little child can. As for the other choices, the app apparently double checks phone numbers and may even do a sobriety check of its own somehow.

Apparently, nobody cares if WBL#1 is stoned, wasted or incompetent. So long as he or she is able to use a Smart Phone, he or she is capable is consenting.

The developers hasten to add that the app is not legally binding. It is just an aid to help the two potential lovers communicate…which they clearly cannot do via the spoken word.

There are, in my opinion, a variety of problems with this app as there are with California’s approach in the first place.

One way in which this app is likely to help the problem is that, if used, it may reduce the number of sexual relations (voluntary and forced) in total. By the time the potential lovers satisfy the app that they are willing and sober enough, the initial desire may be long gone. They might even find that it is actually more fun to be playing with the app than the actual sex act itself.

More seriously, however, while the developers stress that this is not meant to be a legally binding contract, it clearly encourages folks to use it and take it seriously.

Any such reliance on the app is dangerous.

First of all, at best, it’s recordings are meaningless. Consent can be withdrawn at any time. So, assuming someone consents soberly initially and then changes his or her mind. We are left with the same problem. Of course, since we do not care about the sobriety of WBL#1, that person could be wasted and somehow convinced that he or she has a binding contract obligating WBL#2 to have sex.

Secondly, while the developers may desire that the data in the app be inadmissible in a court of law…or college tribunal…that is not really their choice to make. At least in court, there are Rules of Evidence that are involved and actual judges make those determination. The fact is that there are a number of arguments I can think of that would make the data admissible.

Third, it does not really allow for the possibility that one of the potential lovers is not being particularly honest. People may falsify the timing as well as identity of who is actually entering the information. A would-be rapist might, for example, consent for his drunk or unaware soon-to-be victim. Since we do not seem to care much about consent and sobriety of the person initiating the cyber-session, what if that person is being manipulated by WBL#2 who is plenty sober?

There is no recognition of nuances. What if WBL#2 agrees to everything short of intercourse? Clearly, consent to one act does not mean consent to another. How does the app help then?

Also, there are other situations which can make someone incapacitated. What if WBL#2 is emotionally unstable? What if the person is on a drug other than alcohol? What if they are slipped ruffies and so, barely conscious, they do whatever WBL#1 tells them to do?
I will remind you that rape is a crime of violence. It is usually part of an act of trying to control another person. If that is the dynamic here, then it is quite likely that WBL#2 will answer whatever WBL#1 tells them to. In fact, WBL#1 might well have downloaded the problem precisely so that he/she can cover his/her tracks.

Lastly, for now, is the question of human nature. Let’s assume both WBL#1 and WBL#2 have been drinking. First of all, because he/she initiated the whole subject, we do not really care if WBL#1 is drunk and so not able to consent or otherwise use brainwaves responsibly. If WBL#2 is drunk as well, do we really expect that person, while drunk, to determine where on the scale of inebriation they are? Further, even if they know they are drunk, yet physically interested in sexual relations, do we really expect WBL#2 to respond, “Pretty Wasted?”

In short, this app, as is the case with most quick and easy “solutions” to complicated important issues, is not even close to a solution. The most one can say for it is that it keeps the topic of consent alive and visible. Not that that is of small importance.

The bottom line here is that I can see the app's data being used as evidence of prior statements ...usually when trial testimony is different in meaning. The way the app seems to be set up, the roles are clear. WBL#1 is the presumptive future defendant and WBL#2 is the presumptive complainant against whom any evidence of prior consent will be used by the defense to discredit.

“Ok, Sam, you don’t like the app. We get it. But what could possibly be your problem with California’s new approach?”

Let’s discuss that in my next blog.

For the original story upon which this blog is based, please go to