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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.

April 23, 2014

DEFENDANT’S NAME NOT CLEARED IN DISMISSED NORTH END SEXUAL ASSAULT CASE

Today, on the Boston Herald website, Bob McGovern has posted a column entitled “Full Court Press: ‘Nolle’ process feels inadequate to innocent”. It is well worth reading and reflects a part of the message which this blog has long been trying to convey.

He tells about Ross Currier, a 26-year-old man who was charged with a recent North End sexual assault. It turns out that, after going through the hell of the kind years can be stripped from your life whatever the result, the Commonwealth said “never mind.” The Commonwealth, apparently realizing that they had the wrong man, issued a “nolle pross”.

A “nolle pross” is basically a dismissal…for now. It is actually a vehicle by which the Commonwealth seems to turn back time and simply withdraws the prosecution. The resulting dismissal is “without prejudice”. This means that the charges can be brought again any time in the future, so long as the statute of limitations has not passed.

Don’t worry, though. In most cases of this kind, that is only 15 years worth of waiting for the judicial hammer to fall. Under certain circumstances, it turns out to be longer.

Mr. McGovern’s article expresses surprise that, in a case wherein the Commonwealth agrees it has no basis to prosecute, there is nothing more done to make the innocent criminal defendant whole.

Mr. Currier was frustrated and confused when he could not even get an apology. He may be one of those people who was taught that one apologizes when one makes a mistake that effects someone negatively. Nice thought…prosecutions don’t really go for it though.

Various defense attorneys explained that, although it is not a “cure all”, it is better for a defendant to accept it rather than proceed toward trial. Why roll the dice when a dismissal is possible? We are, after all, talking about a human life here.

Not that the prosecution seems to realize that.

“When we have a case and we know there’s no good-faith basis to prosecute, we nolle pross then and there rather than dragging it out to the next court date or two court dates further so that defense attorneys could join in a motion,” explained Suffolk District Attorney spokesman Jake Wark.

There you have the office of the District Attorney, who’s duty it is to “do justice” telling you that when they have a case with no good faith basis…the defendant better just take what we give him. And, considering what we have put him through by mistake…it is sickeningly little.

Mr. McGovern, you have no idea.

Attorney Sam’s Take On “No Harm, No Foul”

We have discussed many times what it is like to be dragged into the criminal justice system as a criminal defendant. The truth is, though, as many clients have told me, words cannot fully describe the experience.

In cases of sexual assault, of course, the horror is especially intense.

“Why is that?"

Well, let’s look at that question in more detail on my next posting. I think it is worth it so that anyone who either is or will be accused can be more prepared.

In the meantime, let’s remind ourselves on what happens next in a case like that of Mr. Currier. For the moment, let’s ignore the money spent on a defense attorney, incarceration, loss of job and relationships and the tremendous panic that he has already gone through. His case has now been “nolle prossed”. No more criminal charges (for now). Time is turned back and all damage to him is undone, right?

Not exactly.

He was arraigned. This means that the charge of indecent assault and battery is on his record. There it will remain unless and until he hires counsel to request that the court seal his record. Of course, if he has any prior record, or the judge decides against it, the charge will remain there.

“So what? He was never convicted. It cannot be used against him.”

Well, that would be true if we truly observed a presumption of innocence. These days, most job applications require the applicant to give permission to let the potential employer look at his record. Similarly if he is applying for higher education.

You might be surprised at how many such schools and jobs will decide to hire someone without any such a charge associated with his background over someone who does…regardless of the dismissal.

In cases like Mr. Currier’s, there is often media interest when a suspect is charged. In fact, often, the resulting news stories read like it is a forgone conclusion that the suspect is, indeed, guilty. They also often list the suspect’s home address. Yet, when the case is thereafter dismissed, there is no such media splash.

Mr. Currier’s background remains stained by the criminal charge. How many people will look at him sideways now wondering if he simply just “beat the case” instead of truly being innocent.

And, speaking of innocence, note that the Commonwealth does not proclaim Mr. Currier, or anyone, actually “innocent”. To hear the prosecution tell the tale, they simply were unable to build a case…yet.

Basically, innocent or guilty, the defendant is seen as “lucky”. He is not going to jail. If he had been held on heavy bail, he now gets out. As far as the Commonwealth and most participants in the criminal justice system are concerned, it is a case of “no harm, no foul.”

Mr. McGovern’s piece is an important one. It is a good article. Unfortunately, the situation is even worse than he reflects.

That is why this blog is here to remind you…to try to get the word out…before it is your turn to take the place of Mr. Currier.

For the original story upon which this blog was based, please go to http://bostonherald.com/news_opinion/columnists/2014/04/full_court_press_nolle_process_feels_inadequate_to_innocent .

April 21, 2014

AOL INITIATES INVESTIGATION INTO CAMBRIDGE 5TH GRADE TEACHER CHARGED IN CHILD PORNOGRAPHY CASE

Josh Wairi, 27, of Somerville, and hereinafter, the “Defendant”, was arrested Thursday. He is now being held without bail in federal custody until he faces a detention hearing on Wednesday.

We began discussing this case on Friday. The Defendant is/was a 5th grade teacher in Cambridge and has allegedly made all sorts of confessions for some unknown reasons.

As usual, the press have copies of the affidavit filed by law enforcement. Despite the fact that the Defendant is alleged to have admitted guilt, there is much we do not know about this case…including what, if any, defense is planned. While you might not know it to look at it, he is still presumed to be innocent.

The distancing from the Defendant has already taken place, of course. There are liability concerns, after all. Cambridge Schools Superintendent Dr. Jeffrey Young says that he feels "shocked and betrayed" by the arrest of the Defendant. He hastens to add that a full background check was conducted before the Defendant was hired. Further, of course, Young added there was no evidence to suggest anything took place at school.

A joint statement released by Somerville Mayor Joseph Curtatone and Superintendent Tony Pierantozzi said the alleged acts shocked them both.

"It is difficult to comprehend how a seemingly functional person with no criminal record could victimize children in such a horrible way," the joint statement said. "The criminal justice system will deal with this individual. What we however must do now is come together as a community."

Apparently, the Defendant was a student teacher at John F. Kennedy School during the 2008-09 school year and also worked in Somerville at the Arthur D. Healy School as a fifth- and sixth-grade teacher from 2009-11 and worked as a fifth-grade teacher from 2011-12.

You can bet there is some second guessing going on in those places as well.

Attorney Sam's Take On Internet Privacy And Security

I found the origin of this matter rather interesting.

It was actually initiated by AOL. Apparently, AOL says that it noticed suspicious emailing and so alerted the federal government. Because these emails took place on the internet and allegedly crossed state (and national) borders, the feds have jurisdiction.

It was not so long ago that there was a debate as to whether internet service providers would (or should) follow requests of law enforcement for records or whether they would protect their customers’ privacy. It would seem that we have come a long way since then. Now, at least in the case of AOL, no prosecutorial request is even necessary!

Which brings to mind a question. I know that, since September 11, 2001, there have been all kinds of security measures upon which law enforcement relies. Usually, we are told that this is necessary for security reasons to combat potential terrorist threats. Apparently, there are ways for our government to be alerted when such threats are planned. Further, it is no secret that law enforcement regularly patrols various websites to battle things like child pornography, child endangerment and, of course, the heart-stoppingly vicious crime of prostitution.

In this case, it was not the government which came upon a website. Instead, it was AOL "suddenly" taking notice of the content within emails.

Are we to expect now that AOL, and similar providers, have been deputized to review our emails as they are sent?

What concerns me most is that these little increases in our losse of privacy are not even noticed. One never knows where it will end…if it even will.

I am reminded of Ben Franklin’s old chestnut, that those who sacrifice freedom for security deserve neither. Things are not always so black and white, of course. But I have to wonder about potential abuse.

Abuse as I see it almost every day in our criminal justice system.

“What do you care, Sam? Don’t we want to protect our children at all cost?”

I suppose so. But then, you’ve got to remember that the term “at all cost” means all cost. Would we be so comfortable with every home being equipped with a 24 hour video camera watching our every move? It would certainly make things safer, no?

I guess that’s a question of “safer from who”?

And, I guess, that's what concerns me.

Anyway, Happy Patriot’s Day!

To read the original story upon which this blog is based please go to http://www.wcvb.com/news/cambridge-middle-school-teacher-charged-with-possessing-child-pornography/25537506#!Ff9TF

April 18, 2014

CAMBRIDGE 5TH GRADE TEACHER IS CHARGED WITH TRAFFICKING IN CHILD PORNOGRAPHY

Josh Wairi, is/was a 27-year-old Somerville resident and 5th grade teacher at the Garham and Parks School. The school is in my stomping grounds…Cambridge…not far from my primary office. Any thought of presumption of innocence aside, you will not be finding him at that school anymore, at least in the near future.

Mr. Wairi is now also known as the “Defendant”. His case is pending in federal court. The charges involve the possession and dissemination of child pornography. He is further charged with having created such material by recording children changing their clothes. He was arrested yesterday at his home following a federal investigation.

According to law enforcement, the Defendant actually confessed to having been involved in the exchange of child pornography, videos and images, over the Internet.

He is said to have further admitted to using a cell phone and a hidden camera in order to record children changing in and out of their clothing. An affidavit filed with the court apparently indicates that he “…admitted to secretly videotaping and using a camera cell phone to videotape children changing in and out of clothes on more than one occasion. He also admitted to setting up and hiding a video camera in a locker room in order to videotape children changing in and out of clothes."

According to the Boston Globe, the Defendant is also said to have offered babysitting services on Craigslist. Additionally, a "friend" of the Defendant’s reportedly claims that there was a daycare in the building where the Defendant lived.

Cambridge Superintendent of Schools Jeffrey Young sent a letter to members of the community Thursday night, explaining that the allegations are deeply disturbing and re-affirming that the school system is “committed to providing all members of our school community with a safe environment for teaching and learning. Consistent with our standard practice in the face of serious allegations, Mr. Wairi was immediately placed on administrative leave.”

Young also wrote that two community meetings would be held to answer questions and hear concerns. Those meetings are set to be held at the school auditorium at the Graham and Parks School on Wednesday, April 23 at 6 p.m. and on Tuesday, April 29 at 6 p.m.

There are reports that, despite the Defendant’s apparent confession, the school actually insists that no such video recordings took place there.

According to various media outlets, the initial tip which began the investigation came from AOL. We will be discussing that more directly on Monday.


Attorney Sam’s Take On Making Admissions Without Counsel

I had various reactions to this story.

Given what I do for a living, one of those reactions is the bewilderment that the Defendant, instead of exercising his right to remain silent or call an attorney, chose to make what appears to be a full confession.

Clearly, as anyone would be, he had to have been frightened out of his mind upon being confronted and questioned by federal investigators. I would think, though, that one of the thoughts racing through his head had to have been “how can I help myself here?”

While it is true that there might be some value in being able to claim, down the road, that he “cooperated fully” and “admitted responsibility” immediately upon being confronted, when one looks at the enormity of the situation, that is not likely to offset the gold nuggets of evidence that he has now provided the prosecution in what was obviously going to be a high profile case.

“Maybe he is making a deal.”

That could be, particularly given that it is the feds and there are apparently other contacts he must have had with others dealing in child pornography. But, if he thought he was going to broker that deal himself with the investigators, he was sadly mistaken. As we have discussed in the past, the prosecutor would have to be involved with any such deal and, again, the Defendant would be fool to try to do it without an experienced criminal defense lawyer

“Could he have been lied to and misled by the investigators?”

Of course, that is always a possibility, although federal investigators are generally more careful with that sort of thing.

The bottom line, though, is that he is 27 years old and, unless he gets very lucky, his life as he knew it could be over. Such luck, I suggest, includes the right experienced criminal defense attorney.

“What do you care if life as he knew it is over? If he is guilty, as he seems to be agreeing that he is, doesn’t he deserve whatever they give him?”

Absolutely not. Let’s deal with that question as well as other related issues in this case on Monday.

In the meantime, have a great, safe and law-abiding weekend.

To read the original story upon which this blog is based please go to http://www.boston.com/news/local/massachusetts/2014/04/17/cambridge-elementary-school-teacher-facing-child-porn-charges/zfaxgtYCoUHcCOa8Jzsn5J/story.html

April 18, 2014

SALEM STUDENT IS THE LATEST ARREST FOR ASSAULT AND BATTERY WITH A DANGEROUS WEAPON ON CAMPUS.

...And so it continues.

In Salem, a 20-year-old student at Salem community charter school was arrested Monday. That charge? Assault by means of a dangerous weapon. The weapon? Knives.

According to law enforcement Bjorn A. Nichols (hereinafter, the "Defendant") of Salem, was taken into custody and charged with assault by a dangerous weapon, carrying a weapon on school premises, resisting arrest, violation of the city’s knife ordinance, disorderly conduct and causing a disturbance. According to Lieutenant. Mary Butler, police were called at approximately 3:30 PM by someone at the school who said they felt threatened by the presence of the Defendant and his knives.

Naturally, the police responded.

The lieutenant explained that there were no injuries, nor anyone actually physically attacked. However, the defendant had a 2 inch knife and a 3 inch knife, the latter of which violated the city ordinance on blade length.

According to the police, the non-violent aspect of the event changed when police entered the scene. Then, it is reported, the Defendant became aggressive and struggled with the police officers when they tried to arrest him.

Attorney Sam’s Take On The Flip Side Of School Security

On my last blog, we discussed the positive aspects of police presence at schools. Connected to that, is, of course, the efforts of the schools to appear to be "zero tolerance" when it comes to criminal activity.

I have represented clients in the number of matters which result in not only court issues, but also disciplinary hearings, suspensions and expulsions. Unfortunately, some of the same problems which occur on the street also occur in the schools.

For example, we have discussed in the past the fact that who receives the title "victim" and who dons the mantle of "defendant" is often a matter of who contacts the police first. This also seems to be a police method of solving crimes at the schools. The administrations then tend to follow the lead of the professional crime busters… The police.

"But Sam, I remember going to school. Usually, a "rat" is shunned at school. Isn't it unlikely that people would run to the school police?"

It sure is. However, when one party does go to the police, that party is considered a reliable victim because they reached out to the police. Period. There are several problems with this. Not only the one that you mentioned,

Let's say that Tommy Tattle goes to the police and says that Alan Accused threatened to strangle him to death. Let's further assume that not only did Alan not threaten Tommy, but there was no interaction between the two of them at all. Regardless of Allen's views on going to the police against a fellow student, he does not even know that anything is being alleged. Naturally, he could not go to the police about something that he knows nothing about.

Seldom, however, is that reality considered by law enforcement. When Alan simply says that Tommy is lying and is unable to prove a negative, Allen is in a great deal of trouble. I find that once the police jump to the conclusion as to who is at fault, the school administration follows along and defenses the officers viewpoints.

There are liability issues and civil lawsuits to consider, after all...

Depending upon how seriously they takes the title "zero tolerance" regarding violence, I have seen officers and school officials simply throw out the blanket of Blame to everyone involved regardless of the circumstances.

"Well, doesn't that make sense? After all, it takes at least two people to be in a fight."

I suppose. That is if we except the assumption that if a student is attacked, the student should simply lay there and continue to be assaulted and not strike back at all if he hopes to escape any prosecution. Of course, even with such a lunatic proposition, there are no guarantees. You would be shocked at some of the outrageous situations that I have walked clients through in which school officials and police officers turn themselves into logistical pretzels in order to support an officers original conclusion.

What do I mean by outrageous?

How about a case in which the fight is actually videotaped and it is clear that one kid not only strikes first but has the other kid under total control, hand around throat in a headlock, while the other kid is simply on the ground struggling to get free? In such a case, both kids were disciplined and were brought into the halls of justice.

This is but one example, and someday, I might give you specifics of some such scholastic nightmares should I receive permission from those clients.

Let me put it this way, though. We are talking about prestigious Massachusetts universities.

So what does one do when a parent is notified that their child has been involved in an altercation and that there may be ramifications?

Unfortunately, it's the same thing that we have discussed about what happens in the "real world". Do not expect that it is an even playing field or that the school is going to do it's best to filter out the truth and protect the aggrieved. In more cases than not, the school will be busy protecting its own police and it's conclusions... Regardless of what the basis of those conclusions are.

The smartest thing you can do, although school administrators and school police will often tell you it is not necessary, is to grab hold of a defense attorney who is experienced in such matters. There is a limit to what the attorney can do during school proceedings. However, there are things that the attorney can do to help. Further, if there is any possibility of criminal charges, you are playing with fire if you face that alone.

Do not expect that you are, as parent, going to be able to talk to the prosecutor or judge and simply tell them the truth as you see it and have them dismiss charges.

As I have mentioned in the past, I am a parent as well and I have had to deal with the feelings of fear and helplessness when one of my kids has gotten him or herself into trouble. I can tell you that, at least in the criminal justice system, being the parent does not give you the power to always make everything “alright” by leaping into the fray. Sometimes the best you can do is to make the right decisions, pay close attention and count on someone you trust to do the actual protecting of your child before the court.

That person is an experienced criminal defense attorney.


NOTE TO READERS: I regret that this week and last week were embarrassingly bereft of blogs. However, please be assured that I am trying to post between three and five blogs a week…work necessary for my actual clients, of course, has to take priority. Believe me, though, I am very grateful for my readers and I will continue to do my best in regular postings.

As a sign of "good faith", I will be posting one more blog this week later today. "See" you then.

To read the original story upon which this blog is based please go to http://m.salemnews.com/TSN/db_325481/contentdetail.htm?contentguid=GqNl63Io

April 15, 2014

MASSACHUSETTS SCHOOL SCHOOLS INCREASE POLICE PRESENCE TO DETER VIOLENCE (PART ONE)

The tragedy we remember today was as horrible and ugly as they come. And come they have. Repeatedly.

Too often, the tragedy results in the death or serious injury of our children. Often, it is our children who perpetrate the deed.

It happened again just last week. This time it was in Murraysville, Pennsylvania. This time it was at the Franklin Regional High School. This time it was knives.

Just as school was about to start, a student armed with two knives walked through the building and began stabbing people. By the time it was over, two students were in critical condition at a nearby hospital and the third was on life-support.

School violence seems to have become an almost expected reality. In days gone by, there was always some such violence. However, school-related stabbings, shootings and killings frequentLy found in the news.

We try to fight the trend via the usual approach, namely, jacking up criminal penalties and enacting do-nothing-but-feel-good such as semi-recent anti-bullying law. The result? The citizenry feels good for a little while and the problem continues.

Some approaches, however, show some promise.

The seriousness with which instances of school violence are treated changed after the Columbine massacre. Then, a couple of years ago, a gunman killed 20 first-graders and six adults at the Sandyhook Elementary School in Newtown, Connecticut. Now, there is even more scrutiny of security procedures in schools.

For better…and for worse.

“I don’t think anybody walks around saying it’s not going to happen here,” said John Panica, who works as a school resource officer at Massachusetts’ Newton North High School. “I think people say it could, and as long as you’re prepared you’re able to deal with those things.”

“It was a wake-up call that it can happen in any town and in any place in America,” said Canton Detective Chip Yeaton, who works as a school resource officer at Canton High School. Yeaton, who also serves as the president of the Massachusetts Juvenile Police Officer’s Association – an organization that represents school resource officers – estimated that about 70 percent of school districts in the state have at least one police officer working in a school.

Immediately after Sandy Hook, Reading police Officer Corey Santasky worked with the school district to review its building security, and spent time at schools to reassure children and parents that students were protected.

“After Sandy Hook, I went to all of the elementary schools every day and greeted the kids every morning to show them we’re there to help them and keep them safe,” he said.

Police presence is seen as serving two functions. First of all, and perhaps most important to many, it offers a feeling, if not reality, of security. Second, police point to the relationships they’ve built with students and teachers as proactive measures that have helped prevent possible mass shootings. In Marshfield, for example, police got word of an attack planned for 2005 to coincide with the sixth anniversary of the April 20, 1999 shootings at Columbine High School in Colorado that left 15 people dead. Three students who plotted a similar attack in 2001 were thwarted in New Bedford.

But more often than not, school cops can be found in the halls chatting and listening to students. Some are plainclothes, and some, like Santasky, wear a uniform. Walking the halls of Reading High School, Santasky said he believes listening to kids can prevent major problems.

“My goal is to make sure they can trust me, that I’m a resource for them,” Santasky said.

More and more police officers are being stationed in Massachusetts schools — serving as role models and lecturing to classes on drugs and alcohol, bullying and, more recently, cyber activity such as sexting. Most appear to be masters of small talk: They schmooze with students to gain trust, pull lunch monitor duty like teachers, and walk a beat through the halls in between classes, trying to learn as many names of students as possible. Many even spend some of their weekends at schools, attending games, dances, and plays.

Attorney Sam’s Take On Law Enforcement, Schools And Your Children (Part One)

Nobody can disagree that having a police presence at a school means extra security. It might even help in easing kids' views about the police.

This blog generally focuses on warning the reader about dangers the Massachusetts crimnal justice system (and the nightmare called DCF) presents to the unwary.

Most people, particularly the innocent, are indeed unwary.

You will notice that I mentioned above that this extra attention to school violence has both positive and negative effects. The positive ones are pretty obvious. Take the police presence for example. More police presence provides extra security should a problem arise. Further, if handled correctly, the police may even strike up relationships with kids which serve as a more positive foundation to those kids’ reaction to law enforcement.

Everyone is happy with the positives…but few truly understand the negatives.

That is, until said negatives effect their child.

What do I mean?

Check back tomorrow.

For the original stories upon which this blog is based, please go to http://www.bostonglobe.com/metro/regionals/north/2014/04/05/police-suburban-schools-now-focus-security/0kieakc5fYGktEhX4K5BXO/story.html
And
http://m.wcvb.com/news/several-people-reportedly-stabbed-at-franklin-regional-high-school-in-murrysville/25391530

April 4, 2014

“I WAS ARRESTED! WILL MY NAME BE IN THE NEWS?”

Probably, in one form or another. There are things, though that can be done about it.

Being arrested and hauled into court for arraignment is, among other things, embarrassing. You don’t want the world to know about it and your family does not want the negative attention. Most of all, you have enough to worry about without having to be questioned or getting the “fish eye” from those with which you come in contact.

Imagine how you are going to feel when you see cameras and reporters when you enter the courtroom…and they are all there for you.

“Oh my God”, you think. “I’m toast.”


Attorney Sam’s Take On High Profile Cases


It does not matter if the criminal charges are rape, drugs or murder; you now have an additional issue you are going to have to deal with. publicity.

That issue, by the way, really needs to be dealt with immediately. In fact, it would have been better if you had started to deal with it before you came to court.

“Well, how was I going to do that? Tell the reporters to stay home that day?”

No. You should take the steps necessary to have private counsel who is experienced with high profile matters representing you immediately. That attorney could have prepared you for the realities of your arraignment and taken certain steps to make it as painless as possible. For example, the attorney could take steps to block you from cameras, particularly in cases wherein there is an identity issue.

“Well, Can’t A Court-Appointed Attorney Do That?”

They Should. The problem is that there are some good court-appointed attorneys and some bad, or inexperienced ones. Further, you could have prepared with your private attorney prior to the arraignment and had time to prepare for things such as bail arguments. You will meet the court-appointed attorney for the first time just before your arraignment.


"Can The Attorney Stop The Press From Reporting On My Story?"

Unfortunately, no. There may be motions your attorney could bring to cut down on things like the Commonwealth dribbling tidbits to the press. For example, the amount of evidence released could poison the potential jury pool in the surrounding area. You may wish to ask to move the case to another location. There may be pieces of information your attorney could get the judge to order the prosecution not release.

The court is not likely to Order the press not to report. It could, however, Order the Commonwealth not to disseminate the information in the first place

“The Commonwealth is going to reveal its evidence to the press?”

Very likely, the Commonwealth has already revealed some of its case to the press even before your arraignment. There could even have been a press conference where the local District Attorney is congratulating the police and his office for making the case against you.

“Isn’t That Prejudicial?”

It sure is. However, in large part, the Commonwealth gets away with it. The experienced criminal lawyer in such a case knows how far he can and should go to offset that prejudice.

“What Do You Mean ‘Can And Should Go’?”

There are particular court rules, which govern attorneys. An attorney ignores them at his or her peril. Further, it would not make sense for your lawyer to do something that looks good in the press today…but is likely to bury you tomorrow.

“Is There Anything You Can Tell Us In This Blog Which Might Give Us An Idea Of What To Expect?”

Of course every case is different. Further, the personalities of the judge, defense lawyer and prosecutor differ, so anticipating what will happen in any given case is impossible in terms of specifics.

In my opinion, the fact that a case has garnered publicity from the start is generally not good news for the defense. Every participant in that courtroom is going to be ultra-aware of the presence of the cameras and they are going to be very careful. While you might think that is a good thing, I remind you of an unfortunate truth which we have discussed in the past.

Nobody is likely to get criticized by being “too harsh” on a criminal defendant. Being seen as “too soft,” however is a much different story. Remember that the District Attorney is a political office, usually a stepping-stone to higher office. In other words, public sentiment is likely to effect how the prosecution handles the case, particularly in the beginning…like when bail hearings are held.

Further, nobody likes being criticized in the press, not even the judge. The judge will also be aware that, should the defendant get out on low or no bail, and commits another crime, critism will be coming forthwith.

Remember also that it is very rare for the press to give true attention to the presumption of innocence. Many times, while reporting on a case and the pending criminal charges the word “alleged” does not even appear.

“So What Can An Experienced Attorney Do For Me?”

There are certain ways in which he or she can try to get your message across, or as much as is appropriate. At the very least, your attorney can make it clear to the press that you are not convicted, yet. Further, such a lawyer should have gained a sense as to when media interest is likely to be high and when it is likely to be low. Depending on the level of media interest, more efficient work on the case may be able to be done.

The tools of the trade change a bit when the pressure of publicity is on. The experienced lawyer will know how and when to use those tools. Further, that attorney will not be taken aback by the presence of the press.

So, once again, it comes down to having an experienced attorney. Not simply someone who passed the bar 85 years ago, but someone who has experience in dealing with high profile criminal cases of the sort facing you.

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

April 1, 2014

“I THINK I AM BEING INVESTIGATED FOR A MASSACHUSETTS WHITE COLLAR CRIME BUT I DON’T THINK THEY CAN BUILD A CASE AGAINST ME” (PART TWO)

Last week, we began this topic. At the time, I signed off with the famous last words “Good question. Let’s start with it tomorrow". Once again, a few “tomorrows” came and went and I was too busy fighting for “the cause” to post. So….please consider today “tomorrow”.

We discussed the realities about police involvement when approached by what appears to them to be a crime victim. However, what about when it is not a case of who gets to the police first? What about cases where you have no reason to know that there is even suspicion about your activity, much less an investigation? Often, we see such a scenario in Massachusetts white collar cases.

Attorney Sam’s Take On Healthy Paranoia When It Comes To Questionable Paperwork

Let’s face it…sometimes paperwork is not accurate.

Yes, it could be because of criminal activity. On the other hand, it could also be because of either carelessness, a simple mistake or something else other than criminal.

Unfortunately, the concept of mistakes has begun to enter extinction. These days, folks jump to the conclusion of evil intent. And if it appears that somehow the person causing the error arguably profited somehow, that is what the law enforcement “truth” becomes.

“Well, Sam, the police do not receive notice of these ‘mistakes’ through telepathy. Someone calls them. Why would those people assume criminal intent?”

Well, there could always be ulterior motives. They could range from revenge to wanting to cover up a mistake that the accuser actually made.

This, as with the question of actual factual guilt, varies from case to case.

The important thing for you to keep in mind is similar to the message in my previous blog. If an investigation is going on, very likely you are unaware of it until it is too late.

“What do you mean ‘too late’?”

I mean that often, by the time you are brought in for questioning, the investigators, both civilian and police, have already determined what the “truth” is. In any event, someone has clearly found what they are calling “evidence” compelling. Therefore, it is pure folly to assume that “they have no evidence.”

You must remember that evidence does not have to be absolute proof. Further, in a criminal case at least, the time for having to prove a case against you does not come until trial. That trial can be many months to a couple of years in the making. While some comfort, or relief, clearly comes from an acquittal, it is far better to avoid the criminal charges in the first place.

As discussed in previous blogs, nobody is going to give you back the time, sweat or money you have lost over the criminal justice nightmare. That is true whether you are, in fact, guilty or innocent.

“Aren’t there times where investigators are really reserving judgment until everyone involved is questioned and have not made up their minds when they question potential suspects?”

Undoubtedly. I have seldom experienced many of those, to tell you the truth, either through my own observation or from what clients have told me. The fact is, however, such instances are in the minority in my experience. The risk in assuming that a given situation is truly that…an honest search for the truth…is huge.

At least, depending on what you do in response.

You can risk it and go into the questioning alone, figuring you can either charm the questioners or simply tell them the truth as you know it. You may be lucky and be successful in that endeavor.

Not very likely though.

Therefore, my advice is still the same. Contact an experienced criminal defense attorney at the moment you suspect there is an investigation, or may be an investigation.

Indeed, there are times that it makes sense to make a statement and submit to questioning. However, letting an experienced attorney who has seen these situations before guide you is your best bet in making the correct calculation.

Remember, a bell cannot be unrung. Once you make a statement, that statement is made.

You blindly rely on the integrity and open mindedness of those posing the questions at your peril.

Sometimes, a little bit of paranoia is not a bad thing.

Remember, just because you are paranoid does not mean that they are not all out to get you!

March 25, 2014

“I AM THE SUBJECT OF A MASSACHUSETTS CRIMINAL INVESTIGATION…BUT I DON’T THINK THEY HAVE ANY EVIDENCE AGAINST ME” PART ONE

I am not going to tell you that every crime that is ever committed is discovered and/or punished. Likewise, I will argue forever that not everyone convicted of a crime is truly factually guilty.

However, the way cases are “discovered”, “solved” and brought to trial has to do with evidence. Most people figure that they know what constitutes evidence.

Many of those people are wrong.

Attorney Sam’s Take On What Evidence Is, Can Be And Just A Few Ways It Can Be Tainted

First of all, let’s do away with the most frequent reflection of evidentiary misunderstanding to which I am so often treated.

“There is no physical evidence. They’ve got nothing. It is just her word against mine.”

Even assuming that there is no physical evidence and all that the prosecution has as evidence is its complainant’s word to use against your word (assuming you are able to testify), to say that they have “nothing” shows great naiveté.

What they have is the complainant’s word. That is all the prosecution needs to bring a case against you. One person’s word. Just to add flavor to that reality, remember something else we have discussed in past blogs. That is that whoever wins the jog to the police is generally going to be considered the “victim” and the person that victim accuses will be the “defendant”.

It can, and usually does, happen that quickly. Given that law enforcement makes that determination so early in the “criminal investigation”, the goal of the police becomes the building the (already established) case. Thus, there is a taint to the investigation in such cases from the very start.

“But they will still keep an open mind, right? I meant, the police do want to see Justice done, right?”

The police generally want to see “Justice” done, yes. However, the problem is that they generally decide what that means in a particular case very early on. The truth, then, is not what you mean by “open mind”. In their minds, they have the truth. Now it is time to build the case against you.

“But the officer told me that he is keeping an open mind, can tell I am a good guy and he just wants to get my side of the story so that he can close the file.”

Yes, that is what they usually will tell you. It is a great approach to get you to talk to them when you do not have to. It may even get you to lower your guard so that you will answer questions in a sloppy manner so that your statements can seem like a confession.

We have discussed many times that, under the law, police officers are allowed to lie during the course of their investigations. The only problem comes if you lie to them. That is called the felony of witness intimidation, believe it or not.

Now, in this scenario, the officers have spoken to, and taken the word of, the complainant who got to them first. They have decided that, based upon the word of the complainant, there is a case to be made and prosecuted against you. That is the situation as you open the door to law enforcement in the beginning stages of the “investigation”.

As the police believe the complainant, and the prosecutor takes the word of the police, by the time the charges come down the system’s legal gun barrel, regardless of whatever else has been found, there is a bona fide case against you.

“And they can win a case on that?”

Often they can. Sometimes they can’t. That will not be found out until the jury returns…somewhere between six months and a year later. But it's too late to take back mistakes you made earlier on because you believed the "search for the truth" myth.

"Okay, but what about cases where nobody is claiming to be a witness to a crime? For example, what about a white collar crime where I am suspected of doing something wrong even though nobody knows for sure?”

Good question. Let’s start with it tomorrow.


March 24, 2014

UXBRIDGE MAN IS CHARGED WITH SEXUAL ASSAULT AND MAKES A RATHER DANDY TARGET

Ok, it would seem we have the figurative elephant in the room here.

Last week, I referred to the media coverage of a new case of mine that has videos all over the internet. Some of that publicity has brought me various questions from media and responses in the form of hate mail based upon the coverage. Generally, I do not discuss matters in which I am involved in this blog. However, given that my client is interested in making the record a bit clearer than it thus far has been made, I will do so…a little… here.

In case it has not become clear yet, I represent Mr. Daniel Snay who has been arraigned on various charges of alleged sexual assault in Uxbridge.

Mr. Snay’s past is probably the primary reason for most of the media interest in this case.
Over twenty years ago, Mr. Snay had his last sexual assault conviction. He has had a few. Regardless of how the convictions came to be…it is indisputable that the convictions exist. Since then, he has been a Level 3 Sex Offender. That, too, is not disputed.

In 2008, well after having paid his debt to society, Mr. Snay won the prize of $10 million in the lottery. Again, not disputable. In fact, you might remember the outcry when that took place. I know that the complainant and his family in this case do.

So, this is where we start.

Now, the 62-year-old Mr. Snay stands accused again and he has pleaded “not guilty”. As you may recall, the law views him as innocent unless and until he is proven guilty beyond a reasonable doubt. It’s in that United States Constitution thing upon which our system is based. This has not happened yet, except to the satisfaction of criminal injustice vultures like Nancy Grace who make a career out of bastardizing the system and ruining lives.

Ms. Grace, the clown who personifies the adage “a little bit of knowledge is a dangerous thing”, aside, there is a tendency on the part of other media outlets to report allegations as if they are immediately and intrinsically true. They simply do not do it with the blood-curdling venom dripping from their jaws that Ms. Grace does.

I know that many like to joke about the word “alleged”, but the fact is that it is the cornerstone of our system. You will understand that the day that you or a loved one is accused of a crime.

But I digress.

Mr. Snay has now been accused of sexually assaulting a youth who is 16 years of age. The alleged assaults, according to him, ended two years ago. His stated reason for the delay in reporting the abuse is that he “guesses” his silence was bought by Mr. Snay. In fact, the Commonwealth alleges that Mr. Snay used part of his winnings from the lottery to “buy” said silence which, I guess, they will claim, the complainant willingly accepted.
Given that the Commonwealth has seen fit to, on the day of arraignment, hand out the police report of allegations (The same time the defense was given a copy, by the way) like a party gift, perhaps a few words from the other side is in order.

Despite my arguments in court and my answering of questions posed to me by the press after the arraignment, some outlets remain unsatisfied. They complain that “Snay’s lawyer did not immediately return a telephone message.”

It’s true. I had legal work to do for clients.

But I am here now.

Attorney Sam’s Take On Feeding Frenzies In High Profile Cases

Of course, I cannot divulge every detail of this case in this blog. Like the Commonwealth, my case should be presented in the court of law, not public opinion. However, let me ask you a question. We have discussed many times that people are sometimes accused of crimes that they did not commit. In fact, there have been several times that complainants in sex cases actually recant their initial allegations. So, we know that, sometimes, criminal allegations are untrue.

We have also discussed the fact that, sometimes, untrue allegations are made for a variety of reasons. These motivations can include revenge, anger or even greed. In fact, I recently successfully finished a sexual assault trial during which the complainants suddenly brought forth a civil law suit for one million dollars. There is not a doubt in my mind that the complainants in that case were motivated by something other than the truth.

Here, it is undeniable that Mr. Snay is a wonderfully easy target for these types of allegations. He has a bad prior record and is a Level 3 Sex Offender. Further, folks in general do not like the fact that such a guy won the lottery. Finally, if he could be convicted of victimizing the complainant in this case, he is someone with “deep pockets” for a subsequent civil lawsuit. In fact, I would not be surprised if the complainant and his mom brought the lawsuit sooner rather than later.

“Well, Sam, is there any reason to assume that the complainant would be looking to Mr. Snay for financial reward?”

Without going too much into it, the answer is “yes”. As the Commonwealth itself has pointed out, there is a history of Mr. Snay helping the complainant’s family. However, here is something the Commonwealth has not told you. Prior to the allegations being made, Mr. Snay brought eviction proceedings against the complainant’s mother.

That’s right…before the allegations.

Hmmm, so you have, by the complainant’s own admission, two years during which time he felt his silence was “bought”. Then, suddenly, eviction proceedings and, suddenly, criminal allegations which are bound to be taken seriously because, if nothing else, Mr. Snay has a prior record for the same crimes.

“What makes you think that knowledge of the lottery winnings has even entered into the prosecution of this case?”

At arraignment, the prosecutor and judge themselves told you that. Because of the perceived 10 million dollar winnings, bail was set at 5 million dollars…despite the fact that Mr. Snay has not received close to that amount since the money is paid out over time.

Even the lottery winnings aside, there is an entire backstory here which will fill itself in when the matter comes to trial. The police report which the Commonwealth has released is obviously one side of this matter. As time goes by, you will hear more about the other side.

Contrary to what media reports are saying at this point, I have not yet indicated what I believe is behind all this. The truth in this case is for the jury to decide. Not me. Not you. Not law-and-order publicity vampires like Nancy Grace.

On the other hand, perhaps, like her, you feel that it really doesn’t matter. Mr. Snay has prior convictions for similar crimes and should never have won the lottery as far as you are concerned. Maybe you feel he should be thrown in prison for the rest of his life regardless of innocence or guilt in this case.

In that case, all I can say to you and to her is…shame on you.

The basis of our entire way of life tells you to keep an open mind until the matter is submitted to a jury.

That is all we ask.

Despite the publicity sought and gained by the Commonwealth.

To read the original stories upon which this blog is partially based, please go to http://www.boston.com/news/local/massachusetts/2014/03/17/uxbridge-sex-offender-facing-new-charges/HDcBEuQlvvzO3s8j2CUERO/story.html and http://www.hlntv.com/video/2014/03/17/daniel-snay-pedophile-lottery-winner-10-million-child-sex

March 20, 2014

BOSTON RED SOX PROSPECT IS ARRESTED FOR VARIOUS VEHICULAR CRIMES, INCLUDING DRUNK DRIVING

I regret that I have been lousy at getting blogs up here this week. If you have noticed on the news coverage ...it has been a busy week on a particular new matter in Uxbridge.

In the meantime, given "March Madness" and such it seems that folks have sports on their mind. Sometimes, the two areas of interest (sports and criminal justice) intersect. No, not only in cases like those of Aaron Hernandez, but all kinds of cases

Anybody can find themselves facing criminal charges.

Take, for example, the saga of Boston Red Sox prospect Jon Denney . He was s arrested for driving with a suspended license early last Thursday morning and responded by allegedly telling police he "made more money than we could ever see," according to a Lee County Sheriff's Office arrest report obtained by Yahoo Sports.

While arresting officers are usually interested in getting statements, they usually seek a different type of statement Something alittle less offensive for example.

Another alleged gem from Mr. Denny came when he was asked by police why he was in the Fort Myers Beach area. The response is said to be ,"Partying and looking to get some [expletive]."

19-year-old Denney was arrested at 2:22 a.m.. It was at least his second run-in with law enforcement in the last three months. Police had pulled him over at 11:57 p.m. Wednesday night after he "accelerated quickly," causing his Ford F-150 Raptor to fishtail, according to the report. Denney furnished a license that was restricted for business and emergency purposes after allegedly drunk driving in Arkansas, the report said.

The above alleged wittisms notwithstanding, the police simply I ssued a citation, according to the report, and Denney called a friend to drive him home.

But Denny apparently had more wit to share. Approximately two hours later, police report that they saw Denney enter his truck and drive out of a parking lot. When pulled over and asked why he was driving, Denney apparently said he was giving a woman a ride, according to the report. "Denney then became belligerent and started to cuss" at the police officers, the report said.

The rant allegedly I ncluded things like "he was a Boston Red Sox player and he didn't care [sic] he had money and made more money than we would ever see." When handcuffed, the report said, Denney said "he would be out in no time because of who he played for and that he made three million a year."

In fact, Boston drafted Denney, a catcher, in the third round of last season’s draft out of Yukon (Okla.) High. He signed for $875,000. Players in Class A, where Denney is expected to start the season, make a little more than $1,000 a month.
Denney was booked by the Lee County Sheriff's Office at 4:06 a.m. last Thursday. He was released at 8:30 a.m. after posting a $500 bond.

The Boston Red Sox, through a spokesman, issued a statement that "The Red Sox are aware of the incident involving Jon Denney. At present, we are still gathering more information. At this time the club will make no further comment."

While they are looking into this one, the Sox may want to check into an earlier matter from December 7, 2013. In that adventure, Denny was said to have been arrested for disorderly conduct, minor in possession of alcohol and littering after witnessing him throw a bottle of Malibu Black Rum into oncoming traffic, according to a police report. The bottle, the report said, narrowly missed a vehicle.

The Red Sox have been in this embarrassing predicament before. For example, last March, another Red Sox prospect had similar issues. The prospect was pitcher Drake Britton. He was arrested for DUI after driving 111 mph in a 45-mph zone, hopping a curb and ending up caught in a barbed-wire fence. When asked for his license, Britton apparently gave the police a debit card.

Of course, things worked out well for him. He joined the Red Sox in July, threw 21 innings and won a World Series ring.

Denney's scheduled court appearance is March 31, according to the sheriff's office.

Attorney Sam’s Take On Driving Offenses And Offensive Mouths

A brief “word to the wise” here.

During a traffic stop, be it a “good” stop or a “bad” stop, police officers tend to insist being the ones in control. In truth, they really have to because anything can happen during car stops.

Trying to intimidate officers back is most unwise. Rubbing their noses into the fact that you feel your lifestyle is better than theirs is also an invitation for more trouble. Lastly, when the officer tells you to keep off the road, he or she does not usually mean only for a couple of hours.

If there be doubt, call a lawyer or wait until you are before the judge.

It is hard to imagine that anyone lucky enough to be in Denny’s position would want to potentially ruin it by getting arrested and doing all he can, through rather loose lips, to embarrass himself as well as the Red Sox.

“Well, Sam, He seems to have been drunk.”

That’s what they say. But that does not make the offenses any better. Voluntary intoxication is not a defense.

We have discussed this lesson many times, but it clearly deserves repeating.

When approached by the police, do not volunteer all kinds of statements. Do what officers tell you to do and be as polite as possible. If you feel it is all a mistake, your time will come…in court with your lawyer.

For the full story upon which this blog was based, please go to http://www.boston.com/sports/baseball/redsox/extras/extra_bases/2014/03/red_sox_prospect_denney_arrested.html

March 11, 2014

MASSACHUSETTS LEGISLATURE PASSES RUSHED ANTI-UPSKIRTING BILL AND ADDS MORE CONFUSION TO STATE SEX CRIME LAWS

Have you ever heard the saying “Haste makes Waste”? The wisdom seems to be acknowledged in most circles.

Politics, at least the law enforcement kind, is not one of those circles.

Yesterday, we discussed the recent “up-skirting” controversy. It was one of those situations where there were cries of outrage from the general public when the SJC found that there was no currently created criminal offense which fit the act of up-skirting.

In flew the legislature at lightening speed to fix the situation. Last time we saw such cooperative legislators acting in lightening speed was when they gave a joint upheaving gag and delivered us an “anti-bullying” bill which still sits withering on the law enforcement vine, rotting under the sun as the true waste of time that it was.

Now, they have come to our rescue, seeking admiration and votes, to deliver another solution to gain our support.

I mean, fix the problem. Kinda - sorta.

The new law, which took effect immediately upon the governor’s signing, prohibits “the secret photographing, videotaping, or electronically surveiling of another person’s sexual or other intimate parts, whether under or around a person’s clothing or when a reasonable person would believe that the person’s intimate parts would not be visible to the public.” Someone found guilty of the crime would face up to 2 1/2 years in prison, and/or have to pay a fine of up to $5,000.

At least one audience member, Jessi Bertrand of Dedham, is happy about it. She told the local press that “I love the fact that they’re on our side and they are willing to protect us and they’ll do anything to make us feel safe.”

Happy happy joy joy joy.

Attorney Sam’s Take On Rushed Criminal Legislation, Sex Crimes And You. Part Two

So…it would appear that if you are video-taping or taking photographs around Massachusetts, you should be ok when taking footage of other people, so long as their “intimate” areas are not shown.

Yes, that would be their clothed “intimate” areas. Particularly if those shots are of kids…that would make the dastardly deed a felony.

Well, it shouldn’t be that difficult. Face shots are so much more interesting anyway, don’t you think?

Somebody had better tell the tourists, though, before the deluge starts when and if the weather gets warmer.

“Oh, come on, Sam. Are you kidding me? Clearly, that is not what is meant by the legislation. You are reading it too broadly. Taking the wording too literally. something.”

I wish I shared your optimism. But I have seen too many prosecutions which do not make any sense. To rely upon those who will enforce the law and their reading of things is not something I feel comfortable with.

“Why not?”

Because we seem to clap our little hands when someone does something that smells like a “tough on crime” stance. You make illegal. You prosecute. We love you.

Perhaps you can explain to me certain things when it comes to Massachusetts sex crimes the way the legislation involved reads.

Did you know that child pornography, that is, taking naked or sexually oriented pictures or videos of children under the age of 18 is illegal?”

“Yes, of course.”

On the other hand, you can have sexual relations with that person if they have attained the ripe old age of 16?

“16?”

Yeah. Just don’t take pictures or videos. By the way, prostitution is still a crime in the Commonwealth.

“Yes, of course.”

That would involve sex for money transactions.

“Naturally. That’s a sin.”

Disregarding your blow against Constitutional safeguards about church and state, did you know that if you are photographing or videotaping that sin it magically becomes legal?

“What do you mean?”

Well, pornography is legal, isn’t it? Isn’t that a sex/money transaction?

You see, we seem to be confused as to what we want to do when it comes to sex in the Commonwealth. We mix in religious beliefs, traditions that date back to Plymouth Rock and all that other neat stuff while we try to decide.

When things get to a fever pitch, our political leaders take to the platform and try to throw together the right hodge-podge that will sound “tough on crime” enough to make everyone calm and grateful we have such wonderful public servants.

Even if it really does not make any sense. I mean, who’s going to notice?

And when these laws come down, law enforcement enforces. Prosecutors prosecute.

After all, the law is the law.

"But a judge or jury will sort it all out, right?"

Maybe. Many months and thousands of dollars later. If you are lucky and have a good lawyer.

The problem is, people assume the law makes sense. They figure if they act reasonably, however they understand that word, then they will never fall into the jaws of the criminal justice system.

They are not right.

Such naivety has not exactly been outlawed yet…but, maybe, it might as well be.

To read the original stories, other than those listed yesterday, upon which this blog is based, please go to http://wwlp.com/2014/03/07/anti-upskirting-bill-signed-by-gov-patrick/

March 10, 2014

MASSACHUSETTS LEGISLATURE PASSES NEW ANTI-UPSKIRTING BILL AFTER SUCCESSFUL APPEAL TO SJC

Sometimes, you just can't win at trial. Sometimes, the true battle is going to be fought during a Massachusetts appeal. Sometimes the law under which you are being prosecuted is what has to be addressed...not the facts of the case.

This was one of those cases.

Last week saw a battle over what most would assume was fairly obvious.

Apparently, it wasn’t.

The case involved 32-year-old Michael Robertson. He was arrested in 2010, accused of taking photos and recording videos up the skirts and dresses of women on the “T”.

Two separate complaints were filed against Robertson with the transit police. Authorities then staged "a decoy operation" to catch Robertson, who was eventually arrested and charged with two counts of attempting to secretly photograph a person in a state of partial nudity. Police observed him point a cell phone video camera up the dress of a female officer, court documents state.

At trial, Robertson was found guilty. But on appeal, finally to the Supreme Judicial Court, the court reversed the decision by the lower court of not allowing Robertson’s motion to dismiss.

Apparently, “upskirting” fit inside a hole in the law.

The SJC wrote as follows that “…we interpret the phrase, 'a person who is ... partially nude' in the same way that the defendant does, namely, to mean a person who is partially clothed but who has one or more of the private parts of body exposed in plain view at the time that the putative defendant secretly photographs her.” The court found that state law "does not apply to photographing (or videotaping or electronically surveilling) persons who are fully clothed and, in particular, does not reach the type of upskirting that the defendant is charged with attempting to accomplish on the MBTA."

In short, the high court ruled that upskirting did not violate the law because the women who were photographed while riding Boston public transportation were not nude or partially nude.

"A female passenger on a MBTA trolley who is wearing a skirt, dress, or the like covering these parts of her body is not a person who is 'partially nude,' no matter what is or is not underneath the skirt by way of underwear or other clothing," wrote Justice Margot Botsford of the state Supreme Judicial Court.

Prosecutors had argued that the current statute, which prohibits secretly photographing or videotaping a person who is "nude or partially nude," includes upskirting, according to documents.

Robertson's lawyers argued that the female passenger on the trolley was not "nude or partially nude" and was not in a place where she had a reasonable expectation of privacy, according to court documents.

The defense won that day. The prosecutor was not done yet, however.

"Every person, male or female, has a right to privacy beneath his or her own clothing," Suffolk County District Attorney Daniel Conley said in a statement Wednesday. "If the statute as written doesn't protect that privacy, then I'm urging the Legislature to act rapidly and adjust it so it does."

Two days after the SJC made its ruling, the legislature went into action much faster than usual to heed the call. As the Boston Globe reported on March 7th, "Two days after the state's highest court sparked outrage when it ruled that state law allows people to take such photos, Governor Deval Patrick signed a bill today to ban the practice, known as 'upskirting,' " .

The legislation says anyone who "photographs, videotapes or electronically surveils" another person's sexual or intimate parts without that person's consent would face a misdemeanor charge and a maximum penalty of 2 1/2 years in jail and a $5,000 fine, according to The Associated Press.

Ok…so in a mighty sweep, our government has not only made upskirting illegal, but, it would appear, also photographing someone who is completely clothed or in a bathing suit on the beach…assuming that photo captured the “sexual or intimate parts” of course.

Attorney Sam’s Take On Rushed Criminal Legislation, Sex Crimes And You. Part One

Before you jump to conclusions, I am not about to do the rant that is often reserved to prostitution stings. Clearly, upskirting is, at the very least, an invasion of privacy and should not be legal.

There are a couple of problems, though, about which you should be aware given the way this new law was passed.

I suggest to you that it places you in danger…and not because of upskirting.

And I will get to that….tomorrow.

In the meantime, you have yet another example of why it is important to have an experienced criminal defense attorney who knows the law represent you in such cases.

To read the original stories upon this blog is based, please go http://www.cnn.com/2014/03/05/us/massachusetts-upskirt-photography/ and http://www.npr.org/blogs/thetwo-way/2014/03/06/286690512/read-it-and-rate-it-court-rules-upskirt-photos-are-legal