Boston Criminal Lawyer Blog

…And so the battles begin. The judicial chess game. The “trial of the century”. This Boston criminal lawyer has been there many times. I know how it feels. It does not get any more intense than in a case like this.

Witnesses have begun to testify in James “Whitey” Bulger’s federal murder and racketeering trial. Today, the anticipated and controversial witness, John “The Executioner” Martorano, began his testimony, which will continue tomorrow. Already Mr. Martorano has done Mr. Bulger a big favor, with the help of prosecutors and the court. You see, as discussed last week, in this case full of shadowy and corrupt law enforcement (some of which lay at the doorway of the very office that is prosecuting Bulger), Mr. Martorano’s testimony has already provided the Bulger team a viable issue for appeal. That is, should the government win.

Everyone expects, by the way, the government to win.

Mr. Martorano might be considered someone who hit the criminal justice lottery. Although he has admitted to killing 20 people, 10 of which were allegedly done at the behest of Mr. Bulger, he only served a bit over twelve years in prison.

Martorano’s testimony “is certainly big to both sides,” former federal prosecutor R. Bradford Bailey says. “It’s big to the prosecution because he’s the first major player in the RICO conspiracy that’s going to be able to not only talk about those 19 homicides, or many of them, but really talk about how the alleged Bulger organization operated.”

Of course, today is not the first time Mr. Martorano has testified about such things. For example, he was used by the government to convict ex-FBI agent John J. Connolly. The prosecutor who handled that case explains that Martorano apparently intimidated jurors at first but eventually charmed them. Assistant Miami-Dade State Attorney Michael Von Zamft calls him “an incredible witness…By the end, they just loved him. He was so straightforward and honest — you can’t knock it. Juries really appreciate that.”

So, as he testifies, and the government vouches for his credibility, one has to assume he knows what he is doing and how to handle it.

In fact, he knows it so well so as to actually profit from it.

His plea bargain did not simply garner him comparatively little imprisonment. Rather than enter witness protection upon his release in 2007, Mr. Martorano agreed to take $20,000 of the federal government’s (our) money to restart his life. Now, he lives off Social Security and has so far been paid $250,000 for the film rights to his life story and approximately $75,000 more for his collaboration with Herald columnist Howie Carr on “Hitman.”

Martorano, incidentally, denies he was a hired gun. He said he allowed Carr to call their book “Hitman” because Carr “thought it would sell better.” But why quibble?

Of course, the days after his prosecution were not ALL happy. After all, he explained to the jury today that when he learned that Mr. Bulger and Stephen “The Rifleman” Flemmi were “rats” for the FBI, his poor heart was broken. “They were my partners in crime. They were my best friends,” the 72-year-old Cambridge native said in his opening minutes on the witness stand. “After I heard they were informants it sort of broke my heart. They broke all the trusts, the loyalties we had. I was beside myself with it,” John Martorano said in a deep, matter-of-fact voice.

Do I smell the stench of irony here?

Attorney Sam’s Take On Rats, Witnesses And Prosecutorial Games

The government has put on a witness who’s history would suggest there should be question with regard to his truth telling abilities. Further, he is apparently known as a wonderful and talented actor when it comes to testifying in court.

Make no mistake, the government is vouching for his credibility.

“But Sam, given the issues with this man’s past, how can the government stand behind him?”

It is very easy. Even a broken clock is correct at least once a day. Not every criminal lies all the time. The government’s position here is that they do not support the way in which the witness lived…then. However, he has since joined the side of the angels and knows that he has to tell the “truth” in order to keep his deal. The “truth”, of course, as the prosecutors see it.

“Bad guys” are used routinely by prosecutors. After all, who else is better placed to testify about other “bad guys”?

Of course, in this case, the very law enforcement agencies who are vouching for Mr. Martorano has their own hands dirty in this case.

Unfortunately, the government is given a “pass” on that and the court is taking the prosecutors’ word for certain background things which may well lead to the overturning of any guilty verdict which results.

For the original story upon which this blog is based, please go to http://bostonherald.com/news_opinion/local_coverage/2013/06/prosecutor_john_martorano_s_a_charmer, http://bostonherald.com/news_opinion/local_coverage/2013/06/hitman_martorano_learning_whitey_was_a_rat_broke_my_heart and http://bostonherald.com/news_opinion/local_coverage/2013/06/john_the_executioner_martoranos_testimony_will_be_big_to_both#sthash.nHaGWO5H.dpuf

Do not kid yourself. The case may be high profile, but these issues are hardly new. The only thing that might be regarded as novel is the variance from the normal rules by which the system treats the multiple murder case of United States vs James "Whitey" Bulger. This Long-time Boston criminal lawyer has been talking about this approach since Mr. Bulger was returned to the Commonwealth.

On Friday, you may have heard me interviewed about the latest occurrences in the Bulger case on WBZ (1030 AM radio). At the time, the defense had just brought a motion about an alleged shielding of government witness confessed hit man John Martorano in continuing criminal activities. at the time, it was not clear what that motion actually was.

It was, at its base, a discovery motion.

That might surprise you. A "discovery motion?",you might ask. This case is on for trial. How can there still be discovery (lawyer-speak for information the two sides must provide one another so that each is prepared for trial) outstanding? Even I, who have tried more cases than my math abilities allow me to count, assumed the motion was a distraction. I also mentioned that in order to bring these allegations, the defense had to provide a good faith basis which might not be so easy to do.

I was wrong and the good faith basis is there.

According to the Bulger attorneys, State Police Detective Lieutenant Stephen P. Johnson has been Martorano’s “handler’’ since the confessed killer of 20 people agreed to cooperate against Bulger and corrupt FBI agents in return for a reduced sentence.. A very reduced sentence. Martorano was freed from prison in 2007, and the defense claimed that since then that another, unidentified trooper allegedly learned that Matorano was engaging in criminal activity since his release, tried to start a new investigation into him, but was blocked by Johnson.

At a hearing on the issue on Friday, Assistant US Attorney Fred Wyshak defended Johnson and declared that the trooper making the allegations went “off the deep end’’ and made allegations that federal and state investigators later determined baseless.

Of course, you might think that this would be an issue of fact and one that would be inappropriate and self-serving for the prosecutors to decide on their own.

But, then, I guess I digress.

For their part, Bulger’s lawyers called the trooper “highly regarded’’ and “seasoned’’ who has been villified by law enforcement to protect Matarono and the case against Bulger. They also quoted Dana Pullman, the president of the troopers’ union, the State Police Association of Massachusetts, as speaking in support of the unidentified trooper.

“These inflammatory comments were subsequently described by the president of the State Police Association of Massachusetts as a ‘large misstatement’ and a ‘mischaracterization,’ ” the Bulger lawyers wrote.

“This eleventh hour revelation creates an unfair prejudice to the defense. In consequence to the government’s conduct the defense moves that the Court complete jury empanelment and then stay opening statements in this case until the government has given the defense the requested materials and the defense has had the opportunity to review and then conduct its own investigation into these troubling allegations,’’ the Bulger lawyers wrote.

In a brief two-page response filled with disdain towards Bulger and the unidentified trooper, federal prosecutors urged US District Court Judge Denise J. Casper to reject the defense idea and continue with both jury selection and the opening statements.

“Consistent with his attempts to pretend he was immunized and to pretend he was not an informant, Bulger now pretends he has ‘discovered’ some shocking discovery violation,’’ Assistant US Attorney Brian T. Kelly wrote.

...and so goes the prosecution in Boston's most infamous federal criminal trial.

Attorney Sam's Take on Playing Favorites With The Criminal Rules Of Procedure

You might be taken aback by the allegation on the part of the defense that this was an "eleventh hour" revelation. Could it be that the defense was simply not paying attention?

Well, I have some experience with Attorney Carney and some of his team; I doubt that very much.

In the past, we have discussed the federal court phenomenon called Jencks Material. It is the discovery that federal prosecutors, unbelievably enough, do not have to turn over to the defense until the eve of trial. Generally, this material is quite lengthy and often contains what might be the most important material in the entire discovery process. By the very nature of its timeline, there is seldom time to fully digest or investigate the material. Often, therefore, the judges are placed in the position in which Bulger's judge finds herself. Does she delay the trial or provide a very serious appealable issue? For those of us who actually care, another way of saying the latter is "provide the defendant a fair trial".

I cannot help but note some irony here. In a case in which the prosecutors and judges have repeatedly twisted and violated the usual rules, the rules regarding Jencks Material had to be followed.

Could it be that, at least for this case, the rules of procedure and fair play have become alittle one-sided?

"Well, who cares, Sam? I mean we all know he is guilty anyway. There is no way Bulger is going to get acquitted."

Maybe. But then, if that is really the case, why bend over backwards to ensure he has such strong appealable issues? Do we really want to have any such convictions thrown out?

Call me crazy, but that seems a little short-sighted to me.

To read the original story upon which this blog is based, please go to http://mobile.boston.com/art/35/metrodesk/2013/06/10/whitey-bulger-lawyers-ask-for-trial-delay-accusing-state-police-cover-for-hitman-turned-cooperating-witness/jn5SmwwtYMzREXtcTkgKfI/story;jsessionid=F066527D2C5F2F7520E266DB6B14B9FF?single=1

If you were on route 107 like this Boston criminal lawyer this morning, and found traffic flow making you wish you were actually riding in on a turtle, the problem may have been a tragedy.

Shortly before 5:00am this morning, a reported hit and run incident took place. Saugus Police are investigating the incident after a man's body was found lying on on Route 107 shortly before 5 a.m. according to Wicked Local's news partner WCVB.

The road was closed from Ballard Street to Route 60 for about two hours after as police investigated, and reopened around 8:30 a.m.

Few details have been released, but officials say that the victim is 24 years old and from the Boston area.

Already, the Essex District Attorney's office has issued a pree release stating that the matter is a "probable" Massachusetts hit and run.

Saugus police responded after a motorist noticed the body in the median.

The investigation is still continuing.

Attorney Sam's Take on Hit And Run Accidents And Fatalities

If you are in a car accident in which there is either property damage or human injury, the worst thing you can do is take off and flee.

First of all, leaving the scene is a crime in itself.

Often, such accidents are an accident. Sometimes there are extenuating circumstances. Sometimes, the driver is not at fault. However, once you flee the scene, you make your situation worse. There is, of course, the crime of leaving the scene itself. Further, the law will interpret fleeing the scene as evidence of consciousness of guilt. This will come back and hurt you should there be criminal charges and a trial. Finally, at an arraignment, the court is more likely order you be held on higher bail because of the sudden flight.

These cases are seldom cut-and-dry. For example, lets look at this very case. It was rainy. It was dark. There is construction at the location. What if the pedestrian was suddenly running over the highway?

In this case, it is unlikely that the driver will remain unknown for long. Investigators have part of the vehicle in evidence. The police are talking to witnesses. No, it would appear that this is one of the usual cases in which the fugitive will be found one way or another.

So, what is such a driver to do?

There is really only one intelligent course of action unless the driver is actually hoping to spend many years in custody.

He should retain the services of an experienced criminal defense attorney. I can tell you from my experiences in such cases that the road ahead is going to be rough. There are many pending criminal issues as there are civil issues should there be a wrongful death lawsuit.

"But, Sam, isn't it too late for the driver to protect himself from all that?"

Absolutely not...but if he or she waits until the police find him or her...options will start to disappear. The driver needs to retain counsel now. Counsel can contact investigators and act as intermediary with police and minimize the effect of initial decision to flee. This is particularly critical when it comes to bail arguments. Then, it is time to deal with the circumstances of the accident.

Keep in mind,by the way, at risk is also the owner of the vehicle if that person was not the actual driver. That person, and anyone else found to be shielding the driver could face a lawsuit and/or criminal charges as well.

To read the original story upon which this blog is based, please go to
http://www.wickedlocal.com/saugus/news/x187943515/Body-found-on-Saugus-highway-hit-and-run-suspected#ixzz2VY1583BP

The federal trial may be beginning, but, as this Boston criminal lawyer can tell you, the attempts to control what evidence is presented to the jury continues. It will continue, by the way, throughout the trial.

At the start of any trial, motions in limine are brought to get advance rulings on evidence and procedure prior to the attorneys even address the jury. More than a dozen such motions were brought on Monday in Boston’s federal jury trial of United States vs. Bulger.

Let’s look at a few of these motions, as well as motions which have been brought since, and then step back and re-examine what all concerned are hoping to get out of this trial. Certain evidentiary issues have already been decided…for now. For example, the court has ruled (twice) that Bulger cannot present evidence relating to any immunity promised by the government as part of his defense. Issues as to families of purported victims of Bulger and limitations of their testimony have also been presented.

Also among the early rulings are that Bulger’s FBI informant file can be admitted as evidence during the trial. Prosecutors have said the file contains more than 700 pages of documents chronicling Bulger’s role as an informant who provided information on the New England Mafia, his group’s main rival. Thus far, Bulger’s lawyers have denied that he had actually been an informant. On the other hand, they had wanted to claim that he had received immunity from a federal prosecutor as a defense at his trial.
Somehow, the issue of his being an informant is relevant while the question of immunity is not

The prosecution is being ever-vigilant on this issue, eager to claim that Bulger is trying to side-step the preclusion of immunity evidence. In fact, when seeing Bulger’s witness list, Assistant U.S. Attorney Brian Kelly argued that Bulger might be trying to use the immunity defense despite the judge’s ruling.

“It seems clear to us that they are trying to put that evidence before the jury in some fashion,” Kelly said.

Carney, Bulger’s attorney, said the defense has “other reasons” for calling the men as witnesses, but he did not elaborate.

Meanwhile, speaking of witnesses, the government’s witness list has its shares of notorious celebrities. For example, Bulger’s former alleged partner, Stephen “The Rifleman” Flemmi, who’s serving a life sentence after pleading guilty in 10 murders appears on the list. So does former hit man John Martorano, who admitted killing 20 people.

People who believe their family members were killed by Bulger will be allowed to testify, but they won’t be allowed to describe the emotional impact of losing their loved ones.
The argument about testimony by family members of the deceased’s has been settled as well. The prosecution has agreed that these witnesses would focus only on factual information, including asking the relatives to identify their loved ones in photos taken after they were killed.

“We do not intend to turn it into a sentencing hearing,” he said.

And so, as the jury selection process plods on, ground rules and guidelines are being set for the upcoming match.

Attorney Sam’s Take On Differing Goals At Trial

The Bulger trial has been called by many the “Trial of the Century”. How impressive that is may vary by opinion given that we are only 13 years into the century at this point. However, it is certainly a high profile case. For Boston…one of the highest.

While we all like to sit back and claim that everyone associated with the trial simply seeks the truth (with the exception of the nasty defense attorneys who simply want to get their client off), even a modicum of common sense tells you that this is simply not so.

For example, let’s take the prosecutors. They are trial advocates. They are looking for convictions. They want to win.

“But, Sam, if they had to choose between the two goals, surely they would opt for revealing the truth, right?”

Well, you tell me. While many may feel they wear the “white hat” here, let’s not forget that there is the potential for a couple of figurative black eyes coming for the office. After all, it would appear that this very prosecution office was complicit with Bulger and at least some of his bad deeds. To some degree, his criminal actions were excused so long as the status quo, whatever it was, continued.

I would tend to doubt that the prosecutors are very willing for such information to be released in open court.

Evidence of this, of course, is the fight about Bulger’s argument of having been given immunity.

“But, Sam, wouldn’t it be reasonable for prosecutors not to want the jury to be confused by that defense?”

I really have to doubt that. First of all, what kind of idiots do we expect these jurors to be? Do we really think that a jury in this case is likely to return verdicts of “not guilty” because of a belief (true or not) that some rogue prosecutor told Bulger that he was free to kill as he wanted so long as he “played ball”? It is simply not a believable defense. Further, to the extent that it would be an issue of law (whether said immunity, if given, were valid), the judge could simply give a limiting instruction that it is an issue of law and that they are not to consider it as a defense. However, curtailing the testimony about it (particularly as the immunity issue has already been declared relevant), simply serves to prevent Bulger’s fair trial rights and keeps evidence folks want to know from getting out. It only serves to protect the prosecution.

One of the main reasons folks say they have been looking forward to this trial is that they want to understand how it all “went down”.

We now know that this trial will not fulfill this desire. The reason is clearly that the prosecution does not want all that bad stuff to get out.

Pretty understandable…until your remember that the oath they took was to uphold the Constitution and “do Justice” not avoid embarrassment and get convictions at any cost.

But then again, jury trials have a way of bringing about surprises. Rules and ruiings can change.

Both sides have experienced trial counsel. Let's see what happens.

To view the original stories upon which this blog was based, please go to http://www.boston.com/metrodesk/2013/06/05/james-whitey-bulger-jury-selection-process-enters-second-day/CrEaAwPV7WxpPEyHEjmcTK/story.html and http://boston.cbslocal.com/2013/06/04/whitey-bulger-trial-begins-with-675-potential-jurors/

This Boston criminal lawyer has been there many times. It is the prologue to war; the days and weeks before trial. The bigger the case, the larger the chess board. We may call it a quest for Justice, but make no mistake. For the witnesses and the lawyers, including the prosecutors, at the very least, the goal is to win. Period.

That is what trial advocacy is all about. This multiple murder case is no different.

As the pre-game setting up of the pieces concluded, last minute procedural steps were being taken in the case of The United States v. James Bulger. The major final issues? The witnesses (pieces).

Two state police detectives, including one who wrote a book about James “Whitey” Bulger are expected to testify during the upcoming trial of the aging gangster, according to federal prosecutors who released their final witness list.

Retired state police Detective Thomas Foley will be questioned as an expert in the Winter Hill gang, the powerful Somerville crew where Bulger and his henchmen got their start.

Foley was part of the FBI-state police task force that was thought to be pursuing charges against Bulger, until it was learned that corrupt FBI Agent John Connolly had been feeding Bulger inside information.

“Colonel Foley will testify based upon his experience as an organized crime investigator and his personal participation in the investigation that led to the indictment in this case,” prosecutors wrote. “His testimony will be based upon his personal knowledge as well as information acquired over the course of his career such as information from electronic surveillance, informants, and law enforcement intelligence.”

Foley wrote a book in 2012 about the state police manhunt for Bulger.

The list of eight expert witnesses also includes a former medical examiners, dental records experts, and DNA lab technicians who will testify about who Bulger’s alleged victims are, and how they were murdered. An FBI agent will be called to testify that all 30 guns found in Bulger’s Santa Monica hide out where he was found in June 2011 were operational. The government says that they plan to call approximately 70 witnesses during the trial which could last up to three months.

Meanwell, the most recent witness battle had to do with the families of those the defendant is alleged to have had killed. The defenses argued that these witnesses should not be allowed to talk about the impact that the alleged murderers had on them or their families. The argument is that this testimony would only serve to provoke emotional responses and sympathy from the jury and would have little to no probative value.

In lawyerspeak, "probative value" means evidence which tends to prove something relevant that is at issue during the case.

Court documents filed Thursday show “the witnesses should not be permitted to discuss the impact that the death of their loved ones has had on their family. This testimony would serve only to provoke an emotional response among the jury.”

These potential witnesses, of course, disagree.

Former District Attorney Gerry Leone – who is one of WBZ’s legal analysts for the trial – says try as they might, emotions are hard to control.

“I don’t know if you can tamp down emotions of victims’ families and frankly shouldn’t,” he said. “This is a public trial about heinous crimes.”

Spoken like a true prosecutor (albeit just recently left the post).

Attorney Sam’s Take On Witnesses And Sympathy

Recently Ex-Middlesex County Chief Prosecutor Leone is right in that the trial is public and it is supposed to be about allegations of heinous crimes.

By its very nature, those alleged crimes are the primary issues of the case. The purpose for the trial is for the United States government to endeavor to prove their case that Mr. Bulger committed these horrific crimes beyond a reasonable doubt.

Should there be a sentencing…and there probably will be…issues like the impact on the families will become quite relevant.

Of course, family members of victims in homicide cases are often called to testify and there are generally issues about which they may properly speak. For example, telling the jury identifying the deceased and, to an extent, filling out the picture about the deceased to the jury.

Sympathy for how the family has suffered, however, is not really relevant.

Let me put it this way. We are supposed to handle this criminal trial like we treat all criminal trials. The purpose of the trial is to determine guilt.

If a murder defendant is not guilty, then the amount of suffering of the deceased’s family is irrelevant. If he/she is guilty, then that suffering comes into issue when determining the harm that defendant, now proven guilty beyond a reasonable doubt, has caused.

This is called sentencing.

I well remember discovering the fact that there is another side to justice when I left my post of being a prosecutor in Brooklyn. It took awhile to shake off the indoctrination, so I can understand Mr. Leone’s view.

This is why it is helpful to have the understanding of both sides of these issues. Mr. Leone certainly knows his way around criminal prosecution. That, however, is only one side of the equation.

You may wonder if this really matters. After all, everyone has pretty much determined that Mr. Bulger is guilty after all. Further, it sounds like the case against him is pretty strong. So…what difference does it make?

Well, for one thing, this case (assuming there are one or more convictions) is going to be appealed. The higher courts will review whether or not the case was handled properly as to the granting the defendant a fair trial. That court will NOT start with the position that “Well, we all know he is guilty anyway. We probably did not even need a trial so who cares if it was a fair trial?” Under the law, Mr. Bulger deserves a fair trial and appeals courts will be there to see if he got it.

If he doesn’t…do we all really want to go through all this again?

This is why I have been pointing out ways in which we have seemed to throw the rule book out in this case.

Tomorrow: Be careful what you wish for!

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

http://boston.cbslocal.com/2013/05/23/bulger-defense-wants-limits-on-witness-testimony/ and http://bostonherald.com/news_opinion/local_coverage/2013/05/trooper_who_wrote_book_on_bulger_on_witness_list

And so the coffin lid slammed shut on the Zumba fitness instructor, 30-year-old Alexis Wright (hereinafter, the “Defendant”). She pleaded guilty in March and was sentenced today for the now infamous prostitution conspiracy in Kennebunk, Maine.

The defendant originally had a codefendant who was alleged to have been part of the conspiracy. That gentlemen, 57-year-old insurance agent Mark Strong with two kids, was allegedly her business partner in the prostitution ring. He did not plead guilty. In March, he went to trial. He lost.

He was convicted of 12 counts of promotion to commit prostitution and one count of conspiracy to commit prostitution on March 6. According to prosecutors, strong help to the defendant manage the prostitution.

The price, at least in terms of sentencing, that strong was presented with after trial was 20 days in prison and a $3000 fine. This sentence was later reduced, apparently, by five days for good behavior.

As mentioned, the defendant pleaded guilty. She did not put the prosecution through the time and expense of a trial. She admitted operating the prostitution business out of her dance studio in Kennebunk.

Her sentence for this consideration was 10 months in jail.

Apparently, the Defendant Was charged approximately 15 months ago, after police raided her business and seized a cachet of evidence which included client rosters and video footage of dozens of sexual encounters with local man. She was charged with 20 misdemeanor counts including prostitution, conspiracy, tax evasion, and theft by deception, according to a court document obtained by the Portland Press Herald

This was no ordinary prostitution case… Not that law enforcement does not take every chance possible to celebrate when they pull off a prostitution sting. This one gained international attention.

Lots of sexy evidence… Very close to a home of ex-president Bush… Large scale inexpensive police investigation.

According to the Bangor Daily News, The prosecutors had offered the defendants a plea deal under which they would drop the majority of the charges and "allow her to sidestep a potentially embarrassing-and costly-trial". No agreement with the prosecution may have been made, but the defendant decided to plead guilty and let the judge decide the sentence.

At the sentencing hearing, the Defendant's attorney argued to the court that her client endured a traumatic childhood in which she was the victim of sexual abuse. For her part, the defendant, in tears, told the judge that she plans to work with women with histories of abuse when she's released from jail.

"It's my intention to stand up for what is right. When I'm out, I'm going to pursue helping people fight through situations that are similar to mine. I'm optimistic that something good will come out of this," she is reported to have said.

Prosecutors said that Wright kept detailed ledgers showing she made $150,000 over 18 months through prostitution while simultaneously netting upwards of $40,000 in public assistance. Prosecutors are seeking restitution of $57,280, according to The Associated Press.

Attorney Sam's Take On Plea Bargains And Prostitution Cases

Generally, criminal defendants get less of a sentence if they plead guilty rather than choosing to go to trial. This might surprise you, given that it is any defendants right, by the Constitution, to go to trial. You might wonder how it is that they seem to get more time if they go to trial in most cases. This is generally explained by saying that a defendant is never punished for going to trial instead of pleading guilty. However, the lowest sentence before trial is often as an incentive to not put the prosecution through the time and trouble of a trial.

"What's the difference between the two?"

This is not so easy to explain. It requires the abandonment of logic. It is too hot to do that today. Maybe another time.

In any event, in this case, the defendant who went to trial ended up with less time then the defendant who pleaded guilty. It would appear that this is because the Defendant was considered more a part of the operation, and faced more charges, then her gentleman friend.

Of course, given the size of the investigation and notoriety of the trial, it may surprise you that both criminal sentences are rather short. You might wonder if it was all really worth it.

This Boston criminal lawyer has discussed these issues with you many times in the past. There are a multitude of blogs blasting such operations and discussing the absurdity of continuing to treat prostitution as if it were drug dealing or robbery. In fact, if the sex trade were made legal, and taxed accordingly, it is unlikely that the tax fraud counts in this case would even exist.

One really must marvel at the hypocrisy that, while sex for a fee is illegal, it is not illegal to act in or film a pornography movie assuming that all participants are of age and acting out of their own free will.

Since films of the sexual acts were seized in this case, I wonder why the defense did not present that as an document. Oh well, not my case.

Meanwhile, closer to home, we are changing the scheduling of the Attorney Sam's Take blogs again. Starting next week, I will be posting three blogs per week. Every effort will be made to make these available on Monday, Wednesday and Friday. I note that someone else may be adding her own entries in between.

In the meantime, stay cool and have a great, safe and law-abiding weekend!

For the full story upon which this blog is based, please go to http://usnews.nbcnews.com/_news/2013/05/31/18655211-zumba-instructor-sentenced-to-10-months-in-jail-on-prostitution-charges?lite

At least 75 people were arrested yesterday by the Boston Police Department during a targeted raid in the Boston neighborhood of Roxbury.

The raid, called “Operation H,” took place around 6 a.m. Tuesday morning in an effort to crack down on drug deals and gang-related violence in the neighborhood before the beginning of summer. As of mid-afternoon yesterday, 75 individuals had been arrested for violent and drug-related crimes including cocaine and heroin dealing. At least 14 individuals were indicted by a special grand jury and arraigned Tuesday morning in Suffolk Superior Court. All of the individuals arrested, according to police, were considered dangerous and had been involved in gun violence.

Most of the charges against the gang members were brought on by a targeted narcotics investigation. According to Police Commissioner Edward F. Davis investigators had been building their case against gang members for several months.

“Detectives videotaped the suspects selling illegal drugs to undercover officers from various locations. The suspects were openly plying their drug trade, victimizing the community and creating an atmosphere of fear -- today’s arrests will give residents back their neighborhoods,” Davis said.

Investigators will be now be seeking search warrants for several residences to gather more evidence for the case, as well as pressuring individual group members to provide additional information about several unsolved violent crimes around the city, including the January shooting of a 13-year old boy. The boy, Gabriel Clarke, was shot while walking to choir practice on Humboldt Avenue. Clarke fortunately survived the ordeal, and police believe that he was an innocent victim who was caught in the middle of a violent gang rivalry.

Continue reading "Boston Police Arrest 75 During Roxbury Gang Raid" »

An allegation of Massachusetts domestic violence can affect your entire life. It can create irreversible harm long before you have a trial or resolve the criminal charges. This Boston criminal lawyer has handled many such cases over the past quarter century. Through my Attorney Sam’s Take, I have attempted to warn you how serious these charges are.

The warning deserves repeating…both for the sake of the accused as well as the accuser.

Years ago, society did not treat such allegations with the appropriate amount of seriousness. Now, the courts tend to err on the other side of the occasion. I still come across cases where a complainant admits that he or she called the police claiming a domestic disturbance out of anger, even when no such violence took place. They are then surprised to learn that they cannot simply tell the police or the prosecutor that they have decided they want to forget about the whole thing.

The fact is that, once the police are called, it is too late for that.

"What exactly is domestic violence? Do I actually have to hit someone in order to be charged with a crime?”

Actually…not always. Other crimes, such as harassment, can sometimes be brought even if no physical violence is alleged. Further, allegations of “emotional abuse” can be prosecuted by law enforcement and acted upon by the Department of Children and Families (“DCF”).

“What does DCF have to do with it? I thought that only the police and the prosecutors get involved when these charges are made.”

Not so if there are kids in the home. If there are children in the home, then DCF starts its own investigation. The rules governing DCF are much more elastic that common sense would indicate. Let’s take the following fact scenario:

Husband and wife have an argument. Wife calls the police. The police arrest husband (as they are practically mandated to do…regardless of what the wife wants). Husband and wife make up and wife admits that she overreacted. No violence actually took place. She even shows up in court the next day at the arraignment to tell the judge and prosecutor that the case should be dropped.

The case is not going to be dropped.

Instead, the prosecutor will likely refuse to speak with wife (once it becomes clear that she wants to drop charges) until the day of trial many months later. Ironically, if the couple are legally married, the prosecutor cannot force wife to testify and so the case will be dismissed anyway (if the case cannot be proven without her testimony). The bottom line is that husband and wife are now trapped in the system until the wheels churn and bring them to a trial date.

Meanwhile, if there are children in the home, DCF will become involved. While the prosecution is pending, DCF may do things like threaten wife to take away the kids if she does not divorce husband or, at least, testify the way the prosecution wants her to.

“Well, DCF has to make some kind of showing of violence in the home, don’t they?”

You would be surprised at how little DCF need show to become involved and support their case against husband and/or wife. DCF is an agency with a great many powers and very few restraints.

“If the prosecution dismisses the case, then DCF will as well, right?”

Not necessarily. The rules are different for each.

“Wait a minute. You have written many blogs about a clerk magistrate hearing. Doesn’t the defendant have a right to such a hearing to determine probable cause if the allegation is simply a misdemeanor?”

Nope. We have become so tough on domestic cases that there is an actual exception in the law for these cases. Even if the defendant is not arrested (which would negate the need for such a hearing in itself), there is no right to a hearing in domestic violence cases.

“So, what can I do?”

Two things. The first is preventative. It is important that folks realize what a quagmire they are instantly thrown into once that call to the police is made. This is not to suggest that someone who is actually a victim of violence should not call the authorities, but those who would make claims simply because they are angry should understand the nightmare that their call will bring.

Once the allegation is made, of course, there is really only one thing to do. Retain the services of an experienced criminal defense attorney to advise, guide and defend you.

"Can the right attorney do any good?"

Yes. As with most criminal actions, the rules surrounding domestic violence and DCF cases can be complex. However, the best way for the Commonwealth (either agency) to simply trample your rights and get a very simple result to your detriment is for there not to be a qualified and experienced attorney opposing them.

It is up to you to prevent that from being the case.

Fail to do so at the first possible opportunity at your own risk!

As we have discussed many times over the past years, we are seeing more and more prosecutions for things that we barely even heard about, much less saw Massachusetts criminal prosecutions for... although we kind of knew they existed.

Today, the Boston Criminal Lawyer Blog brings you another one.

A Suffolk County grand jury has now returned a 53 criminal charges for bribery against five Massachusetts Port Authority employees. They include Kenneth Clement, 67, of Attleboro; Michael Garvey, 51, of Melrose; Vadim Mkrtychev, 38, of West Roxbury; James Mulrey, 45, of Canton; and Donald Potis, 47, of Medford (hereinafter, collectively, the “Defendants”).

The Defendants allegedly accepted bribes from cab drivers in exchange for better spaces in line at the Boston Logan International Airport taxi queue. They now face charges of accepting a bribe as a public employee and soliciting or accepting an unlawful gratuity as a public employee, the Suffolk County district attorney’s office said in a statement.
State Police Superintendent Colonel Timothy P. Alben adds that, “We have a duty to protect the right of businesses to operate on a level playing field, without their being forced to pay a bribe or engage in any other illicit activity for that right.”

The actual allegations are not terribly new. They were made back in February when the State Police arrested the Defendants after multiple cab drivers told investigators that the men, known as “cab starters,” regularly took money, as well as cigarettes, scratch tickets, and other items in exchange for favoritism in the cab queue, law enforcement has said. Now, the Defendants have been indicted which moves the matter higher up the ladder to superior court. Superior court arraignment is set for May 24th on the indictments that have been returned. However, the Commonwealth has warned that more indictments are possible as the criminal investigation continues and additional evidence is gathered.
To this Boston criminal lawyer, this translates to the fact that it is now time to further squeeze potential and actual defendants for information so that such charges can be brought.

Attorney Sam’s Take On Conspiracies, Cooperating Witnesses and Changing Times

The fact that this money has been changing hands in this fashion is probably no shock to anyone. This is particularly so given that some of these “pay-offs” are not even in U.S. currency. That fact that such things may be unfair and ethically wrong has not always made them crimes worthy of prosecution…particularly superior court prosecution.
It makes me wonder when law enforcement will crack down on differences in treatment some folks claim when they do not tip or give holiday gifts to postal employees and such workers.

The fact is, however, that this is bribery, regardless of the form of payment and it is considered a Massachusetts white collar crime.

You may be wondering how such cases are built. Well, as the story reflects, certain cab drivers complained. I would imagine that these were cab drivers who were not receiving the special treatment. Most likely, then, these are not the folks who were witnesses to the “pay offs”. Unless authorities relied solely on undercover officers who posed as cab drivers, it would seem that some of the bribers themselves are Commonwealth witnesses.

You might wonder what would possess such people to turn on their co-conspirators.

“Sam, what do you mean, ‘co-conspirators’?”

Well, offering a bribe is illegal too. So, it would seem that if, as apparently alleged, this was a regular practice, it had to be a conspiracy to violate these laws. As any regular reader of this blog knows, co-conspirators are held responsible for the acts of others in the conspiracy when those actions are in the furtherance of the conspiracy.
It is very likely that the Commonwealth’s case consists, to some extent, of folks who chose cooperating over being prosecuted themselves. This could include some of the bribe-offering cab drivers as well as some of the other cab-launchers.

The fact that additional indictments may be forthcoming may well be the expectation that more potential defendants will be adopting the mantle of Commonwealth witness.
Now what does this mean to you?

It is yet another example of something that one would assume to be “no big deal” being actually illegal and, potentially, successfully prosecuted. After all, even if you think you have left no “proof” behind, you would be surprised how “proof” ends up being discovered in the mouths of co-conspirators who have made a good deal to save their own skins.

Anyone can make mistakes of judgment without even considering that it might be a prosecutable offense. Once done, you would be surprised who is willing to aid in your prosecution to avoid the loss of liberty.

Be careful. If suspected, be alert and consult an experienced criminal defense attorney…and nobody else. Anyone else could wind up on the stand at your trial.

That’s it for me on our new Monday & Thursday schedule.

Have a great, safe and law-abiding weekend!

For the original story upon which this blog was based, please go to http://www.boston.com/metrodesk/2013/05/15/grand-jury-issues-indictments-against-five-massport-cab-starters/yK0bRRdChHJCVC4NKmQJ9J/story.html

This Boston criminal lawyer has been around long enough to recognize what may be the tip of an upcoming criminal justice iceberg.

Late last week, three Everett residents were brought in and arraigned on various possession charges. They stand charged with Massachusetts gun and drug charges. Included in the listing of the firearms is allegedly a gun that had been stolen from the Chelsea District Court evidence locker two years ago, according to Middlesex District Attorney Marian T. Ryan’s office.

The arrests took place after the execution of a search warrant at the home shared by Jeffrey Sanon, 30; Liban Ali, 21; and Malensky Oscar, 21, (hereinafter, collectively, the “Defendants”). According to documents, law enforcement was not even looking for the drugs and guns. They were actually on the trail of a laptop that had been taken from a Winchester business. Law enforcement indicates that an anti-theft tracking device installed on the computer indicated it was currently located in the home.

The weapons found during the search included several high-capacity guns (including the .40-caliber Glock pistol stolen from the court) as well as a shotgun, high capacity magazines, and other ammunition. The evidence of drug crimes seized included more than 36 grams of cocaine and packaging materials according to the District Attorney’s office. The gun from the evidence locker was one of three stolen from Chelsea in 2011. According to Suffolk District Attorney Daniel F. Conley’s office, a Charlestown resident was arrested in April for possessing one of them.

The Defendants stand charged with three counts of possession of a high capacity firearm, three counts of possession of a high capacity magazine, unlawful possession of a firearm and ammunition, trafficking in cocaine over 36 grams, conspiracy to violate the drug law, and receiving stolen property, according to prosecutors.

“The firepower and drugs that were discovered at that home created a potentially lethal combination and a real danger to nearby residents,” Ryan said in a statement. “I applaud the teamwork and joint efforts of the Winchester and Everett police departments, whose search for a stolen computer led to an unanticipated and significant seizure of weapons that now no longer pose a threat to the community.”

The Defendants’ next day in court will be on June 5th. While it is apparently currently scheduled for a pretrial hearing, it is more likely that the case will not stay in district court, but be indicted and moved up to Massachusetts superior court.

Attorney Sam’s Take On The Seizure Of Evidence

Clearly, the Commonwealth’s interest in the Defendants did not begin with the execution of the search warrant.

In order to get a search warrant, law enforcement must make a showing to a clerk magistrate or a judge that there is enough probable cause to issue the warrant. This takes place after a criminal investigation of sorts.

In this case, law enforcement is said to have been simply looking for the laptop computer. The probable cause burden for that would certainly be satisfied by the signal the laptop was allegedly sending as described above.

An experienced criminal defense lawyer should have questions regarding the application for and language within the search warrant. The procedure followed by police investigators should also be reviewed. For example, did the search which resulted in the seizure of the contraband exceed what was allowed by the warrant?

You will notice that no charges have been brought by the Commonwealth for the theft of the stolen gun. This is because there is no evidence, so it would seem, that the Defendants are the folks who actually stole the laptop. However, they may well be facing charges for possession of stolen property.

In the beginning of today’s blog, I mentioned that I expected this to be merely the tip of the proverbial iceberg. This is because not only do we know everything about the investigation leading up to this seizure, we do not know anything about another facet of this story which I would hope the Commonwealth is investigating. Namely, how did the the .40-caliber Glock pistol get stolen from the court?

In a time when we have chemists and seasoned police officers accused, if not actually prosecuted, for the mishandling and theft of evidence, one would hope that this is of interest to prosecutors.

If not, it should be of interest to counsel for the Defendants.

That is, if they are experienced enough to realize its import.

Announcement Regarding Upcoming Changes To This Blog: The Boston Criminal Lawyer Blog is going through some changes. One such change is that it will be posted only twice a week for now. In most cases, the two postings will be on Mondays and Thursdays. Please stay tuned.

For the original story upon which this blog was based, please go to http://www.boston.com/metrodesk/2013/05/12/everett-residents-arraigned-drug-and-gun-charges-including-gun-stolen-from-chelsea-district-court-evidence-locker/MVNMNG5VcAtJBXBEEI300I/story.html

A few words of alleged wisdom to our younger readers and those who love them.

School is not quite over yet! Parties are for good times spent with friends! Stabbing people in throwing bricks at them do not qualify as fun times!

They qualify as felonies, such as Massachusetts assault and battery with a dangerous weapon and potentially assault with intent to commit murder.

This past weekend, it would appear that these words were forgotten. It took place in Springfield at a high school graduation party.

Things apparently were fine until some uninvited guests decided to attend. Their attendance included the stabbing of two guests as well as hitting the host in the head with a brick.

You may have thought that this would be enough to get someone in trouble under normal circumstances. You would be correct. However, this was not normal circumstances. This house is owned by a retired Springfield police officer. He has vowed that the culprits would be captured.

Continue reading "SPRINGFIELD HIGH SCHOOL PARTY IS SCENE OF MASSACHUSETTS ASSAULTS WITH DANGEROUS WEAPONS" »

Today, I bring you a case that I have already told you I feel is “disgustingly unreasonable”. It is a case that takes what I have warned you might happen and shown you that it is already happening. It involves the loss of one of the most basic of Constitutional rights that you rely on every day.

…At your own risk apparently.

Cameron D’Ambrosio is an 18-year-old high school student (hereinafter, the “Song Writer”). Song Writer likes rap music. In fact, he writes and performs his own songs. His latest music video, however, has not only landed him in criminal court, but due to what I can only imagine to be inept lawyering, overzealous (to be generous) prosecuting and a judge who I must assume has let his fear of the press lead him to a shamefully ugly stain on his judicial record has locked him away for awhile.

Like so many rap songs, his songs are said to contain profanity. They also contain images of violence. It is the genre which has not yet been declared illegal. Yet.

Claiming that his recent video contained a “bomb threat”, law enforcement decided, by way of a blatant and reprehensible taking advantage of the recent Boston Marathon Bombing, to perform alittle censoring of their own. They arrested Song Writer and brought him to court.

Once in court, Song Writer pleaded not guilty. Apparently, his defense attorney got that move right. The prosecutor then came up with the brilliant idea of requesting a Dangerousness Hearing in over a week and, in the meantime, holding Song Writer in custody without any right to bail.

According to accounts, the prosecutor did not go into details of the offense in order to justify the outrageous request. She did not have to. She had something better… the consent of the defense attorney!

Continue reading "METHUEN TEEN HELD WITHOUT BAIL OVER ALLEGED BOMB THREAT" »