Boston Criminal Lawyer Blog
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.

We have had a number of discussions about how schools (primarily colleges) grapple with the allegations of sex crimes. Some of the “new” and “improved” solutions have boarded on the ludicrous in my experienced opinion, but that is an issue for another day.

Today we visit one of the cases which led to the present state of affairs of said college self-analysis. It is a case from Northampton, Massachusetts. The University involved is the University of Massachusetts Amherst. It is a case which began in October, 2012. I blogged about it, which posting can be found here.

The case involved four defendants from Pittsfield. They are apparently being tried separately and the first trial just finished. None of them were students at the school, although one young man, Emmanuel Bile, 21, (hereinafter, the “Defendant”), knew the complainant.

He was the first to be brought to trial.

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Last week, we began discussing the issue of mandatory minimum prison sentences in drug cases. The Chief Justice of the Massachusetts Supreme Judicial Court himself has come out in favor of abolishing the statutes containing these penalties.

The District Attorney of Suffolk County, a political advocate for punishing crime in general disagreed.

While one would assume that I would tend not to be of the same opinion as DA Conley, one has to admit that both men have been around the Massachusetts criminal justice system for a long time.

So have I, although the second half of the 1980’s found me as a prosecutor in Brooklyn, New York.

It was the time of the crack, cocaine explosion. At least in Brooklyn, it hit the criminal justice system like an explosion and created havoc.

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Law enforcement is often on high alert for drunken behavior…particularly drunk driving…during holidays. Saint Patrick’s Day, March 17th, is one such holiday.

‘Nuff said.

Apparently, Franklin’s Dominick Revell, 43, (hereinafter, the “Defendant”) did not get that particular memo. The Commonwealth alleges that he was operating his vehicle under the influence on Tuesday.

So they arrested him.

The Defendant was brought to court and arraigned on Wednesday at the West Roxbury District Court. The Commonwealth told the court that he was found unconscious at about 8:50 p.m. Tuesday in a car outside a McDonald’s restaurant on American Legion Highway in Roslindale. It was there, they claimed, that he had allegedly rear-ended a 77-year-old Mattapan man’s vehicle in the drive-through.

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…And so the “war against drugs” continues…more or less.

The question today is one of penalty. In other words, the prisoners of the drug wars. What do you do with them once you’ve got them?

On the criminal justice platter is the question of mandatory minimum prison sentences for those convicted of participating in drug crimes. We have discussed this issue a number of times. Usually, defense attorneys are against such sentences as they currently exist. Prosecutors, at least those who have media priviledge, are for them.

Now, the Supreme Judicial Court Chief , Justice Ralph D. Gants, has come out against such sentences.

Justice Gants’ view, no doubt based on many years of experience as a lawyer (including as a prosecutor) as well as on the bench, is contrary to that of Suffolk County District Attorney Daniel F. Conley. Legal politics being what it is, DA Conley sped up to the same legal summit at which Justice Gants had expressed his view to blast said Justice and his view.

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As you are probably aware, the first murder trial of former New England Patriots player Aaron Hernandez (hereinafter, the “Defendant”) continues in Fall River. In this case, he is charged with the June 17, 2013, killing of Odin Lloyd.

No doubt, many interesting facts and allegations have come to light during the testimony. There is one aspect of the testimony which I think is particularly noteworthy and something you should realize.

It can be summed up in one word. Surveillance.

In the Defendant’s case, surveillance videos have been played to the jurors allegedly showing the Defendant’s movements during various times around the alleged time of the murder. Continue reading

There is an abundance of high profile criminal cases pending in various courts. A number of these cases feature sports figures in the role of “The Defendant”. However, no, this is not that Michael Jordan.

This Michael Jordan is a 27-year-old Boston gent (hereinafter, the “Defendant”) who has been charged with gunning down another man in the shadow of one of Boston’s most famous houses of worship, Trinity Church in the Copley Square area.

He has been ordered held without bail..

He was arraigned and has pleaded “not guilty” to first-degree murder and other charges. The allegations date back to August 2013 when he is alleged to have shot and killed 22-year-old Ahmir Lee.
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Grand juries meet in private… Except for the prosecution of course. No judge, no defense attorney and no defendant. I would imagine you could almost quote by heart at this point the saying that “a prosecutor could indict a ham sandwich”.

Different jurisdictions have different procedures which take place after there is an indictment to be sure that there was a legal basis for the indictment. In Massachusetts, grand jury minutes are given to defense counsel as early as possible so that the minutes can be reviewed. This is actually different from some other jurisdictions where the grand jury minutes are only given to the defense just before trial.

Incidentally, it is the prosecutor who tells the grand jury the law for the grand jury is to consider when considering an indictment. The minutes of that instruction, called “the charge”, are not routinely given to the defense.

In any event, an experienced criminal defense attorney knows how important the grand jury minutes are. There are a number of problems which could exist in the grand jury presentation which could lead to the dismissal of the indictment and the underlying charges.

An example of this just played out last week. A Hampshire Superior Court judge dismissed larceny charges against Nancy Whitley (hereinafter, the “defendant”), ruling that the prosecution had failed to provide a police interview recording of the Defendant to the grand jury that indicted her.
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Jaime Fuentes ,48, is/was a prison guard at the infamous maximum security state prison,Souza-Baranowski Correctional Center in Shirley. As of Wednesday, he is the “Defendant”. He was living in Worcester. Now he in custody, held without bail.

Of course, if what the Commonwealth says about him is true, he now has more to talk about with his former prisoners.

Monday he is scheduled to have his very own Dangerous Hearing.

Prosecutors say that the Defendant threatened his live-in girlfriend during an argument Tuesday in which he accused her of being unfaithful. He was allegedly Holding a gun to her head and threatening to kill her at the time.

Law enforcement claims to have seized a gun from the home and another from the Defendant’s vehicle.

Not guilty pleas were entered on behalf of the Defendant at his arraignment Wednesday on charges which include assault with intent to murder.

A lawyer for the Defendant says he “absolutely denies the allegations” and says that he was the victim.

Attorney Sam’s Take On Domestic Violence And Murderous Intent

Any time you press a deadly weapon to someone’s head, particularly if you threaten to commit a crime (like homicide, for instance) it is a serious situation.

Of course, as you can imagine, there are other aspects of this case that make it even more serious. First of all, it appears to be a domestic incident. Therefore, the red flag of “domestic violence” enters the scene. The only change that that makes is that it is handled with even more caution and fear of the media should the system seem to pay too much attention to the presumption of innocence.

Another aggravating factor is what the Defendant does for a living. The fact that he does it at what is supposed to be the most secure, and is known as the most dangerous, security facility in the Commonwealth cannot help matters either.

These are some of the factors which may have had a part in changing what appears to be a case in which otherwise chargers for “threats to commit a crime” and “assault and battery with a dangerous weapon” would be the charges.

“What do you mean, Sam? The guy is said to have threatened to kill her.”

Yes he is and he, who remains allegedly presumed innocent, says that he didn’t do it and is, in fact, the victim. Not that we are going to take his word for anything, of course. That’s what trials of for.

I realize that we are dealing with a limited amount of facts in this matter, but there is nothing to indicate an actual assault to commit murder.

We have discussed what an “assault and battery” is before. Basically, the “assault” is putting the person in fear of an upcoming battery. A “battery” is in offensive touching. People usually envision this as a punch or a kick. It does not have to be that. Therefore, if the defendant was just holding or touching his girlfriend in inoffensive way (offensive to her), it would meet the criteria of a battery.

In this case, he is alleged to have done this with a gun. It should surprise nobody that a gun is considered a deadly weapon. Therefore, you have the allegations of “assault and battery with a dangerous weapon”.

Threatening to commit a crime is just what it sounds like. Certainly, “I am going to kill you” qualifies as a threat to commit a crime.

But “assault and battery with intent to murder”?. Not so much, I would argue.

If the Defendant was choking her, or doing something else which indicated an actual attempt to kill her, then that might justify the charge. Even if he said, “I am holding you here because a deadly gas is coming through the pipes and will kill you here”, it would make sense.

In fact, we do not even know if the gun was loaded. Of course, he did not threaten he was going to shooter, so I suppose one could say that he was about to use the gun to “pistol whip” her.

“So are you saying that they may have overcharged him?”

That is done routinely. In this case, there is even more incentive to do it because of the factors I indicated above. The tougher the Commonwealth can look, the better it is for the Commonwealth.

“But won’t a judge see that right away and dismiss the charges?”

I hear that type of question almost every day. The answer is no. The time when a judge will look at the charges and the allegations in consider dismissing the case are a good deal into the future. Even then, it is unlikely to happen. However, it is not going to happen in this case.

Not now, certainly.

However, if the allegations do not fit the charges, the prosecution will have to fix things before the matter guess to a trial. In this case, that is likely to happen when the case is indicted. Which I expect it will be. The indictment will come from a grand jury and will supersede the initial criminal complaint.

For the full story upon which this blog is based, please go to: http://www.bostonherald.com/news_opinion/local_coverage/2015/02/massachusetts_prison_guard_charged_with_making_gun_threat

As discussed in my last blog, Paul Hinkel of Connecticut (hereinafter, the “Defendant”) has been convicted of traveling to Massachusetts with the intention of having sex with what he thought was a 15-year-old girl; the girl did not exist, but a federal agent did in her stead.

We have discussed the issue of age in the past. Sexual relations with a 15-year-old girl is another word for “rape“. A child cannot consent to sex. A 15-year-old girl is a child.

This was all the result of a federal sting operation which was planned by a federal law enforcement agency.

In this case, said agency was Homeland Security.

Attorney Sam’s Take On The Many Faces Of Law Enforcement

The United States is said to be at war with terrorism. In the early days of that war, the Department of Homeland Security (hereinafter, the “Department”) was created. The Department was given great powers. They were even given special rules which only applied to them. Rules which impinged on peoples’ fundamental Constitutional rights.

This was explained because they were, after all, charged with the responsibility of keeping us safe. Primarily safe from the terrorists.

While there have been countless acts of terror around the globe, we have been relatively safe in recent years. At least…in terms of foreign powers. Most people would agree that the Department has done a pretty decent job.

Keeping the homeland safe…particularly from terrorists.

I do not know much about the Defendant’s background, but I have yet to hear anything tying him to either foreign powers or terrorists. Nor have I heard that such entities plan on attack the United States through sexual acts with minors.

Finally, I have seen and handled a great many other federal and state authorities who tend to spearhead such investigations and prosecutions.

In other words…what is the Department doing spearheading this investigation by posting advertisements and setting up sting operations?

“Well, what difference does it make, Sam? Law enforcement agencies often share resources and work together in investigations. What’s the big deal?”

The “big deal” is that the Department is not like other agencies. It has more power. It is easier for it to do things which, if some other agency did it, could be considered a violation of Constitutional rights. As I recall, they were given the Patriot Act not so long ago which threw open floodgates of private information and, for the sake of national security, made the information available which would otherwise necessitate a court order.

“But crime is crime, right? After all, isn’t any criminal act something that adversely effects the country?”

Sure. But the Department was not created and given special abilities to fight something that adversely effects the country.

The powers given to the Department were supposed to be exceptions to the rules purely because of what national security was seen as then.

“So, what’s the point here? Have you changed from ‘Attorney Sam’ to ‘Candidate Sam?’

Heaven forbid.

The purpose of this argument is to let you know who and what is out there watching…potentially for you.

“So, you are just trying to warn all the criminals, huh?”

I maintain that not everyone accused of a criminal act is a “criminal”. Mistakes are made. Routinely.

That is why “true believer” defense lawyers like me are important. And it is why the general population needs to understand the realities of law enforcement.

The fact is one never knows where a criminal investigation or, simply, an allegation will come from. That being the case, you cannot know what “facts” the investigators believe to be true when they come to approach you.

It is more important than ever not to try to out-wit, out-talk or out-race them.

Be polite. Make it clear that you will respect their authority.

And then, get an experienced criminal defense attorney immediately!

For the full story upon which this blog is based, please go to http://www.berkshireeagle.com/news/ci_27549330/man-convicted-driving-massachusetts-sex-girl

It is a story we are hearing quite often these days. Someone is allegedly using the internet to lure an underage boy or girl into sexual activity. I don’t know how many adults are engaging in that practice successfully…but there are certainly a large number of such adults who are actually exchanging such messages with an undercover law enforcement officer.

Paul Hinkel, 57, of Chester, Connecticut and hereinafter the “Defendant” is one man who was convicted yesterday of such a crime.

The Defendant had come to Massachusetts for “love” with what he thought was a 15-year-old girl.

She wasn’t one.

Instead, when he ended up in Watertown last March, he found himself paired with a federal agent…who was, to be sure, of age. Apparently, the bag he had brought with him allegedly containing a stuffed animal, sexual paraphernalia and cologne, did not help him too much either.

The Defendant wound up in Boston’s Federal District Court, facing charges including using the Internet to lure a minor to engage in sex. In other words, rape.

Prosecutors say the Defendant drove to Watertown last March in response to a Craigslist ad in which a woman sought a man who might be interested in a relationship with her daughter. The ad was actually placed by Homeland Security agents. The “daughter” was a federal investigator.

The Defendant faces a minimum mandatory sentence of 10 years and the maximum of a life sentence in prison at sentencing in May.

Attorney Sam’s Take On Prospective Defenses To Internet Sex Crime

“Sam, how can he be prosecuted for luring a child? He never even was in contact with a child!”

In some instances in criminal law, a try is as good as a success.

In this case, the government’s case was clearly that the Defendant had tried to lure a child and, in fact, took the affirmative steps to make that effort pay off (for example, coming to Massachusetts with his little goodie bag).

How was that argument fought against in this case? I don’t know. I was not there. I can certainly think of some arguments…but nobody asked me in this case.

“Sam, why wasn’t this entrapment?”

The defense of entrapment is a commonly misunderstood concept. In this case, while it was the government who put the advertisement in Craigslist and engaged the Defendant in the communications, it would be difficult for the Defendant to win at trial with such a defense.

First of all, keep in mind that the federal agent did not just show up at the Defendant’s door offering a young child up. They placed an advertisement. It was the Defendant who responded to the advertisement.

Now, you may want to argue that the advertisement was so well crafted so as to destroy an contrary will on the Defendant’s part to resist it so that the Defendant really got sucked into the government’s web almost against his will. However, in order to prevail on a claim of entrapment, the defense also has to show that, left alone, the Defendant would never have tried to engage an underage girl in sexual conduct.

Cases like this can be quite tricky. I can tell you that, more than with other types of criminal trials, jurors come in with pretty strong ideas of innocence and guilt. Particularly the former. These cases are emotional and jurors tend to feel badly for the idea of a young victim…even when the “victim” is not really so young at all.

There is another more surprising and troubling aspect to this case.

Let’s discuss that in my next posting.

Until then, KEEP WARM!

For the full story upon which this blog is based, please go to http://www.bostonherald.com/news_opinion/local_coverage/2015/02/man_convicted_of_driving_to_massachusetts_for_sex_with_girl

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