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


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

October 22, 2014

THE PENULTIMATE BLOG ON DISCUSSING THE “YES MEANS YES” APPROACH TO SEXUAL ASSAULT

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

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

I know...I have handled the cases.

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

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

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

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

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

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

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

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

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

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

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

In fact, let's face it. Some of these instances involve under-age drinking and even what amounts to statutory rape. However, in many cases, we sweep those considerations aside unless it is to consider it purely against the one we end up naming "Defendant".

So..in the face of such confusion, why not have an etched-in-stone law like “Yes Means Yes?

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

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

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

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

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

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

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


For the original story upon which this blog is based, please go to
http://mobile.nytimes.com/2014/10/26/magazine/hooking-up-at-an-affirmative-consent-campus-its-complicated.html?_r=0&referrer=

October 16, 2014

WHAT’S WRONG WITH THE NEW CALIFORNIA ANTI-CAMPUS SEX CRIMES AND ACCOMPANYING APP?

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

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

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

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

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

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

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

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

So…problem of campus sex crimes solved?

Hardly.

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

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

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

Hence the clever title.

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

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

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

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

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

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

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

Any such reliance on the app is dangerous.

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

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

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

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

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

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

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

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

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

Let’s discuss that in my next blog.


For the original story upon which this blog is based, please go to http://www.theguardian.com/technology/shortcuts/2014/sep/30/consent-app-good2go-bad

October 14, 2014

CALIFORNIA FIGHTS CAMPUS SEX CRIMES WITH NEW “YES MEANS YES” LAW…AND APP

Hey, remember when “No” meant “No”? Well, unfortunately, people are still committing sex crimes. So, California is going a step further with its enforcement of such crimes. The state’s new rule will be that “Yes means yes”. By statute, in fact.

Such an approach is not really new. I have handled a number of cases where such allegations have arisen on college campuses. Generally, the burden is shifted to the accused to prove that a given complainant gave an unequivocal “Yes” and, virtually, kept repeating that word in order for the sexual contact not to be a sexual assault.

Now, California has defined just when “yes means yes” and it is aimed at college campuses. The state Senate, which unanimously approved the legislation, believes that the new law will change how campus officials investigate sexual assault allegations. Governor Jerry Brown signed the bill shortly after receiving it.

Rather than using the refrain "no means no," the definition of consent under the bill requires "an affirmative, unambiguous and conscious decision" by each party to engage in sexual activity. It requires all colleges taking student financial aid funding from the state to agree that in investigations of campus sexual assaults, silence or lack of resistance does not imply a green light for sex, and that drunkenness is not an acceptable defense.

By the way, at least in Massachusetts and New York, voluntary intoxication has not been a legal defense to such crimes for quite awhile; Massachusetts colleges have long taken the “yes means yes” position as well.

Nevertheless, Democrat Senator Kevin de Leon, who pushed the bill, proudly announced that "With this measure, we will lead the nation in bringing standards and protocols across the board so we can create an environment that's healthy, that's conducive for all students, not just for women, but for young men as well too, so young men can develop healthy patterns and boundaries as they age with the opposite sex .”

Of course, there are nay-sayers. Take Florida international University Professor Emeritus of Psychology Gordon Finley for example. He says, "It is tragically clear that this campus rape crusade bill presumes the veracity of accusers (a.k.a. 'survivors') and likewise presumes the guilt of accused (virtually all men). This is nice for the accusers – both false accusers as well as true accusers — but what about the due process rights of the accused?''

The bill further requires colleges and universities to adopt "victim-centered" sexual-assault response policies and implement comprehensive programs to prevent assault.

As we have many times discussed in this blog, however, concerns such as that which voiced by Professor Finley are not usually given much credence. Apparently, acknowledgement that sometimes people are untruthful when they make allegations is about as popular in California as they are in Massachusetts. In other words, they aren't.

There is a silver lining to the new law, though. Immediately following the new “yes means yes” law, a spanking new app was invented to address it!

The app by Southern California-based Sandton Technologies is said to mean that prospective mates can whip out their phones and record their affirmative consent for piece of mind.

This app, which can be found for both Apple and Google-based devices, asks users the obvious questions. Potential answers include "No. Thanks," "Yes, but ... we need to talk," and "I'm Good2Go". It also administers a light sobriety test as well. If the user is found to be inebriated or if they say “I’m wasted”, the app will not allow statements of consent to be recorded.

However, Standton Technologies president Lee Ann Allman is quick to add that the technology does not amount to legal documentation. While the California law says that students accused of rape have to show administrators that verbal or written consent was active at all times, the app isn't intended to be used as legal evidence.

"We go to great lengths to say it's not a legal document," the technology executive claims. "It's a point of data."

Attorney Sam’s Take On Campus Sex Crime Investigations

As I mentioned above, California’s approach is not quite as novel as it seems to think. Standton Technologies’ little invention is also of questionable use…whether or not it can be accepted as admissible evidence.

And, by the way, the app developer does not make the call as to whether or not the app can be introduced in a court of law.

What we are seeing, actually, is another step forward in the war against the accused.
It is a boon for the proposition that any accusation of a sexual nature is a valid and truthful accusation. You see, once you take that as a given, you do not have to worry about inconveniences like Constitutional Rights. In fact, it turns the entire process on its head because it erases the fundamental precepts of our system.

But, then again, it is a more popular position than being seen as “soft on crime”.

We’ll discuss this more in my next blog.

For the original stories upon which this blog is based, please go to http://www.usatoday.com/story/news/usanow/2014/08/28/california-bill-yes-means-yes-sex-assault/14765665/. And http://m.laweekly.com/informer/2014/09/30/yes-means-yes-sex-app-is-here and http://www.usatoday.com/story/news/usanow/2014/08/28/california-bill-yes-means-yes-sex-assault/14765665/

October 10, 2014

A BOSTON CRIMINAL LAWYER REVEALS THE TRUTH ABOUT THE “PRESUMPTION OF INNOCENCE”

In the practice of law, there are such things as "legal fiction's". These are generally items that lawyers make up in order to prove a point. .

Whether the charge is murder, drug trafficking or rape, you have been brought up to believe that the United States Constitution protects you in that prosecution in various ways. One of the most fundamental ways is that you are said to be "presumed innocent". You are also told that the presumption remains with you unless and until you are proven guilty beyond a reasonable doubt by the government.

We use that "presumption of innocence" to explain away and even excuse various inequities and wrongs inherent in criminal prosecutions. For example, a police report is written when charges brought against you. There are cases in which there is no resemblance between the facts described in the police report and what actually happened. "That's okay", we basically say. "That police report won't be going into evidence and, anyway, you are still presumed to be innocent ."

In many of my previous blogs, we have discussed that, usually, while we declare that we believe in the "presumption of innocence", a criminal defendant more commonly experiences an assumption of guilt. In other words, while a defendant has not yet been convicted of anything, she is treated by prosecutors and, often, judges as if the conviction had already been accomplished.

Despite being presumed innocent, the defendant can be held in custody, violated on any probation, made to lose her job and many other things. All well before the charges facing the defendant have stood the test of a trial.

Through it all, we repeat the mantra that we adhere to a "presumption of innocence".

But what does that presumption mean? What happens after the trial if there is an acquittal?

The answer will not make you happy. The fact is that, despite the legal fiction of the "presumption of innocence", the law will never recognize the defendant as "innocent" of the charges he faced...ever. No matter what happens in the case.

"Wait a minute, Sam! That's some nice the case is dismissed or you are acquitted, right?"

Nope. Wrong.

The law is quite clear in this instance. Being found "not guilty", which is the results in an acquittal, is not the same is being found "innocent". This is why civil cases, and other related matters, can still be brought against you even though you have been acquitted.

All the acquittal means is that the government did not prove you guilty beyond a reasonable doubt.

"So, that would mean I was found to be innocent, right? After all, it had been established that I was not found guilty beyond a reasonable doubt. Therefore I am presumed innocent and remain innocent."

Sorry. Not the case. It is not treated as if you have been found to be innocent.It has not been decided as a matter of law that you were innocent. The government simply failed to prove you guilty beyond a reasonable doubt.

Likewise, a dismissal is not a finding of innocence. All that happens is that you will never be found guilty should the dismissal not be re-prosecuted.

Therefore, since being "not guilty" is not the same as being "innocent", there is no way of getting back that legal label of innocence

Now, we can quibble about whether any human being is indeed "innocent". That, however, is not the issue. The issue is that when charges come against you are presumed to be innocent under the law. However, although you are "presumed innocent", you will never be found "innocent". Therefore, since that presumption must end at some time, likely trial, you will become either "guilty" or "not guilty".

Granted, most people are satisfied with being found "not guilty" of a particular crime. It is important, however, that they remember that they are not legally "innocent".

That will never happen. The mere allegations, no matter how believable, has destroyed your innocence as to the accusations.

in a way, it kind of makes sense that, even when you are acquitted or charges against you have been dismissed, those criminal charges remain on your record for all to see.

What this means is that, when retaining an attorney, you want to somebody who has knowledge about these consequences of simply being charged. In other words, to keep an eye on civil liability and other possible consequences which can be triggered simply by being accused.

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

October 7, 2014

ARE THERE FEWER UNFAIR CRIMINAL SENTENCES IN MASSACHUSETTS IN DRUG CRIMES ?

This past Sunday, you may have woken up early. 7:00 AM-type early. At the time, perhaps you were listening to Emerson College’s radio station, WERS, located at 88.9 FM on your radio dial. If so, you may have heard me talking about, what else, the criminal justice system.

The topic of the overall program was to discuss progress in various areas of our sociological life. I was there to discuss what progress has been made in criminal sentences involving incarceration. Specifically, whether the unfairness’s and inequities we have seen in the past persist.

Unfortunately, I was not exactly a beacon of hope.

Well, that is not entirely true. As I said on the program, and have said in my blogs, I refuse to believe there is no hope. However, the light shining off of the "progress" thus far made is more tantamount to a dim “moth-stained naked light” as described in Alice Cooper’s “The Quiet Room” than one the bright lights of Emerald City of the more well-known land of Oz.

Attorney Sam's Take On The Realities Of Criminal Sentencing

To be sure, there are some reasons for hope.

For example, there is some attention now being paid to the drug and alcohol addicted and the recognizing that they suffer from an illness…not simply a wish to create havoc.

However, such programs are quite limited and, I would suggest, short-sighted. They do not seem to recognize that the road to recovery in these areas often has bumps, if not boulders, midway through. The approach that seeks to give aid instead of incarceration in most instances is a one-shot deal. If the defendant backslides, it is often into a room surrounded by steel bars.

This is particularly troubling as the defendant’s daily existence has now, simply by being arrested and arraigned, become even more difficult. Simply by donning the last name of “defendant”, he or she has a criminal record which will be seen by anyone considering that person for a job or higher education.

Such branding and newly presented barriers would bring stress and difficulty for anyone. I would suggest that for an addict it is even worse.

Such difficulties also complicate hope for recovery in another way. Once one has even more difficulty “bettering themselves”, whether by work or education, one’s finances tend to suffer. This may seem obvious, but it is not really recognized by the criminal justice system.

There are various fees and fines that the system expects a criminal defendant who has been “given a break” to pay…in a timely manner no less. These include such luxuries as GPS bracelets, probation fees, program costs, etc.

“Well, Sam, what if you simply can show that you cannot pay?”

Then you are likely to be surrendered by the Department of Probation and incarcerated as you might have been in the first place.

While inequities of criminal sentences may have improved a bit between the races of “black” and “white”, they are alive and well between the seeming races of “destitute” and “respectable”.

Today's criminal justice system has a difficult time making allowances to those without homes, jobs or emotional stability. You are more likely to find them people incarcerated.

By the way, if you wonder if the resulting labeling and experiences of the above help to perpetuate the problem, if not make it worse, I would opine that the answer is a resounding “Yes!”.

Another area in which the misinformed assume great progress is the changed law regarding marijuana.

Folks assume that if they are found smoking marijuana with their friends, they are not likely to be facing criminal charges from the Commonwealth of Massachusetts (as opposed to the federal government, which is an example of the personification of “Ludicrous” for another day).

They are incorrect.

You see, the way Massachusetts law stands, you can have up to a certain amount for your own personal use. However, if you are possessing that marijuana with intent to distribute it, then you are not only committing the misdemeanor that straight possession of marijuana once was, but you are committing a felony! That felony charge is possession with intent to distribute.

Distribution does not have to be for a price. If you share, give or donate the weed, you are distributing under Massachusetts law.

If you are smoking that joint and sharing some of that weed with your friends, under the law, you are distributing the marijuana. Clearly, having distributed it, you had the intent to distribute it. So you can be charged with Possession With Intent To Distribute as well as the distribution itself.

The result? You are at risk to be arrested for the felony charge(s). But that’s not all!

Since the charge is Intent to Distribute, especially if you are in Suffolk County, you are probably going to be charged with having done so in a “School Zone”. This means that you are now facing a mandatory minimum sentence of two years.

Even if it is your first offense.

Such mandatory minimum sentences, by the way, are our legislatures’ answer (with cheer-leading encouragement by district attorneys) to satisfying our demand to be “tough on crime”.

These days, being labeled as being “lenient on crime” is a political death knell. Even Massachusetts judges have been attacked and drummed off the bench for having be seen as too lenient. Thus, the politicians pass these laws which strip judges and prosecutors of exercising discretion in the appropriate handling of a particular case.

“Well, don’t the judges and prosecutors do all they can to come as close to the line as possible and give ‘breaks’ when they deem appropriate?”

The problem is that nobody likes to appear in the news the next day should things go wrong. The line I hear so often is “What if I give him a break and he goes out and kills somebody?”

I try to explain that the defendant is facing a charge like “disorderly conduct” or “Possession With Intent” and has no history of violence. You would be surprised how often that does not seem to matter.

The cowardice of the political approach to “throw raw meet at the rabble” notwithstanding the fact that they know the problems the quick fix will cause, is forgiven because, frankly, the general public will never know. Ignorance, in this case, is bliss.

And dangerous.

It all changes when you or someone you love is suddenly facing criminal charges.

That's when the light becomes quite bright.

Harshly bright.

Wouldn't it be better if we could work on admitting and fixing the problem before that particular spotlight?

This is why blogs like this, by the way, are written. If the public does not know, they can do nothing to make changes.

And the machine will just keep on keeping on regardless of those crushed beneath it.

"Aren't You over-stating it a bit, Sam?"

I am barely scratching the surface.

September 30, 2014

ATTORNEY SAM DISCUSSES SEARCH, SIEZURE AND A CRIMINAL INVESTIGATION INTO AN ALLEGED KIDNAPPING

Those of you who are regular readers of this blog know that I suggest, in general, that if law enforcement tries to talk to you about criminal activity to which they would like to connect you, you should politely defer questioning until you have an experienced lawyer present.

Of course, this pre-supposes that you are either a suspect or that the ensuing conversation is likely to make you one.

The right to invoke what is commonly known as Miranda Rights. It is more complicated than most people think which is why it is best to follow this suggestion. If you get a lawyer and there is nothing to fear, then your lawyer can tell you that. I have seen too many cases, though, in which it is the police who invoke their right to lie, deceive and mislead someone in order to get a statement they actually like out of a soon-to-be-revealed suspect...or defendant. To give a general admonition to simply go ahead and answer all the questions to the best of your ability without the safeguard of a lawyer would not be great advice. Particularly given what is often done with such statements.

These types of issues fall under the category of Search and Seizure.

We have been discussing the criminal investigation into the allegeged kidnapping with which Jesse Leroy Mathew (now the “Defendant”) has now been charged.

I have been fairly hard on Police Chief Longo (hereafter, the "Chief"), the man in charge of the investigation.

I have regarded several of his reported statements of reasoning absurd and suggested that he may have screwed up this investigation by how he handled the Defendant's voluntary appearance at the police station in connection to the alleged kidnapping. I will assume you have read the previous three blogs on this case so as not to repeat it all. If not, you can find them here, here and here.

Hindsight gives us, as you know, perfect vision. Therefore, it is easy for me to sit here, see something go wrong, and label it a “bad move”. However, the truth is there is a real question as to whether or not the Defendant had the right to demand an attorney when he first showed up at the police station.

“But, Sam, I thought he was the prime suspect in the case.”

You thought he was. I even labeled him as such. But the police chief refused to officially do so. Instead, he was called a “person of interest”. Not only that, but there is a custody requirement to trigger the need for Miranda Rights. While the meeting was taking place in the station, the Defendant had actually walked in voluntarily to talk. He was clearly allowed to leave…because he did so.

Of course, they charged him with dangerous driving when he did and issued an arrest warrant and Wanted Poster…but why quibble…

I have to expect that the Chief would have preferred to have the interview without a defense attorney present. However, when the Defendant requested one, there were only a couple of choices left to the Chief. He could have told the Defendant that, since he was not in custody and was not a suspect, that he did not have the right to an attorney.

He could have taken a middle road and told the Defendant that, under those circumstances, law enforcement was not going to get him a lawyer but if he wanted to hire one himself, he was free to do so.

Instead of trying to manipulate the Defendant at that juncture (which law enforcement does all the time), the Chief apparently tried to move the bluff further. He agreed to get the Defendant a lawyer, thereby informing him that he was probably a suspect and that, after giving a statement might well be arrested.

Sure enough, the Defendant then took off post haste, which triggered the vehicular charges.

“What happens if the police do not give the Miranda Rights when they are supposed to? Case dismissed?”

Not necessarily. The worst that can happen is that the statement gets suppressed. In other words, the state would not be able to use the statement made against the Defendant. Also, because of a legal doctrine called the “Fruit of the Poisonous Tree”, any evidence that was thereafter discovered because of the statement would also have to be suppressed.

Now, that is a simple way to put it. In reality, it is not so simple. There are many exceptions carved out by statute and case law which ends up allowing many instances where such statements are not suppressed.

I know…I deal with them on a daily basis.

It is likely that, at least at the time, the Chief felt he did not really have enough evidence against the Defendant unless he could get him to make a statement inculpating himself in some way. So, he took the risk in the other direction…being extra sure that any statement would not be suppressed.

As a defense attorney, I have to applaud the recognition and enforcement of the Defendant’s Constitutional Rights. Tactically, as we now know, it was probably the wrong decision.

Shortly after the Defendant took off, the Chief labeled him what he was…a “suspect” and in the blink of an eye issued an arrest warrant for the alleged abduction.

“Why do you say ‘alleged’ abduction?”

Because we do not know that there has been one yet. Unless there is strong evidence about which we do not know (which is always possible), it does not seem like law enforcement has any more evidence than they did when the Defendant showed up at the station.

That’s where the Chief’s ludicrous statements come in. The logic of suggesting things like “I don’t see her, so she must have been kidnapped” or “He was the last person I know of seen with her entering a club in which there are many people (although the video tape shows otherwise), so he must have done it” are hardly the stuff of which convictions are made.

But, life being much stranger than fiction, let’s see what happens…!

September 26, 2014

SUSPECT IN KIDNAPPING CASE IS ARRESTED AND AWAITS EXTRADITION

Over the past couple days, the criminal investigation into the disappearance of Hannah Graham (the “Missing”) and the until-now-officially-“non-suspect” Jesse Leroy Mathew (now the “Defendant”) has had some developments.

Finally, it would seem that the façade that the Defendant was merely wanted for his poor driving habits and simply a “person of interest” in connection with the presumed abduction of Missing has ended. His official status has changed in places other than this blog to that of “suspect”. Criminal charges have also brought charging him with the suspected abduction.

Shortly thereafter, he was captured in Texas where he awaits extradition.

An extradition is the legal process whereby one state temporarily holds a suspect due to a warrant for another one to show up, prove that the suspect is the person actually sought and bring him back “home” to face charges.

In Texas, the actual charge to hold him due to the warrant is as a fugitive from justice. He was also charged with giving false information to law enforcement. In Massachusetts this is known as the felony of “intimidation of a witness” for some bizarre reason.
The charges now awaiting the Defendant, other than the motor vehicle charges, now include “abduction with intent to defile” Missing.

Meantime, in Charlottesville, police say an intense search for Missing continues. "This case is nowhere near over," Chief Longo revealed in a news conference late Wednesday.

"We have a person in custody, but there's a long road ahead of us and that long road includes finding [the Missing]." Apparently, the search is focusing on rural and wooded areas around Charlottesville, Longo said in an interview Thursday.

Authorities have released their understanding of the chronology of the night the presumed abduction took place. They say that Missing met friends at a restaurant for dinner on September 12th before stopping by two parties at off-campus housing units. Officials said she left the second party alone and sent a text message to a friend saying she was lost.

Surveillance videos showed her walking, and at some points running, past a pub and a service station and then onto the Downtown Mall, a seven-block pedestrian strip where police believe she entered a bar with the Defendant. The video that has been publicly released does not show the two entering the bar together.

Oh well.

The Defendant’s past has also been a subject of debate in the meantime. The university said he had been employed at the University of Virginia Medical Center since Aug. 12, 2012, as a patient technician in the operating room. He attended the University from 2000 to 2002, said officials with the Lynchburg school founded by the late Rev. Jerry Falwell. The school's athletics website listed him as a defensive lineman on the football team.

More recently, he also served as a part-time volunteer for the football team at The Covenant School, a private Christian pre-kindergarten through 12th-grade school in Charlottesville. Officials said his involvement with the school began last month following interviews with the athletic director and head football coach, as well as normal background and reference checks.

Of course, after he was named a “person of interest”, the Presumption of Innocence being what it is, people who knew him began immediately disavowing him school officials said in a letter that he would "no longer be working with our football program while this matter is being clarified and resolved."

Interesting. It often takes becoming an actual “suspect”. But then again, no sense wasting time I suppose…!

New information has also been unearthed to aid the Assumption of Guilt. It turns out that not only has the Defendant had automobile-related infractions, he seems to have had a few more (which include assault and grand larceny), the details for which are “not clear” according to the press. While Matthew has had past brushes with the law, the details of those cases are not clear. Also, back in 2002, there was a suspect of a campus rape investigation according to the prosecution by the same name. Charges were never filed against him that one. However, the government spokesman has said that "Based on information released by Liberty University today, I am confident it is the same guy."

Good enough, I guess.

What, in reality all this means is anybody’s guess. However, since people see what they want to see, this should be enough innuendo to satisfy the “Where There’s Smoke…” folks and, they hope, start the movement to prejudice a potential jury for the case.

Attorney Sam’s Take On The Importance Of Innuendo In Certain Prosecutions And Other Updates

This is a case which keeps delivering more fodder already to several lessons in the realities of the criminal justice system…especially in difficult cases.

“How do we know it’s a ‘difficult’ case, Sam?”

Well, first of all, I am sure…or at least hope…that law enforcement has more to go on in this case than what has been released. By what has been released, we have a bit of innuendo which is probably enough to make the Defendant a person of interest, but not too much more. We do not even know for sure that a crime has been committed, let alone that the Defendant could be the one who did it.

I have practiced law in a few jurisdictions, but I must admit that neither Texas nor Virginia are among them. However, given that they are part of the United States of America, there are certain assumptions I can make. For example, the state is supposed to prove the Defendant guilty beyond a reasonable doubt in order to convict him.

Of course, it is true that different juries in different parts of the country might define “reasonable doubt” differently. However, unless being seen with someone who later disappears is a crime, it is going to be pretty tough to get a conviction out of this case based on what we have been told.

It would, of course, match the reasoning the police chief has delivered to date. On the other hand, one would imagine, if not pray, that he won’t be making the final legal decisions in the matter.

“Well, we don’t know what statements he made or what the details of his history are. They might be enough.”
Funny you should mention that. I have been wanting to discuss the trip to the police department we discussed earlier this week as well as several issues which have developed since which connect to important truths about search, seizure and the criminal justice system.
“You mean…?”

Yes. We are going to continue this discussion for (I hope) one more day.


In the meantime, have a great, safe and law-abiding weekend (and Rosh Hashanah if applicable)!


NOTE UPDATE - Clearly there is no video blog posted yet. I will keep you posted, though.


For the full stories upon which this blog is based, please go to: http://www.wjla.com/articles/2014/09/jesse-matthew-captured-but-uva-student-hannah-graham-still-missing-107502.html ,
http://www.wjla.com/articles/2014/09/jesse-matthew-u-va-kidnap-suspect-expelled-from-liberty-university-in-2002-after-alleged-rape-107507.html as well as the two listed earlier on my last blog.

September 23, 2014

A NEW WARRANT IS ISSUED IN CRIMINAL INVESTIGATION INTO MISSING COLLEGE SOPHOMORE’S DISAPPEARENCE

Well, Jesse Mathew, 32, (hereinafter, the “Suspect”), whom we discussed yesterday, seems to be in more trouble than we knew. Search warrants weren issued today to carry out searches of his apartment. The search warrants are part of the ongoing criminal investigation into the disappearance of University of Virginia student Hannah Graham (hereinafter, the “Missing”).

Meanwhile, the Charlottesville Police Department is ramping up the pressure on the Suspect by releasing to the media a wanted poster for him, saying that he may be in possession of his sister's car. They also indicate that he has known associates in Washington D.C., Maryland, Pennsylvania and New York in addition to his home state of Virginia.

Incidentally, I also know people in Washington D.C., Maryland, Pennsylvania, New York and Virginia. Worse yet, I also know folks in New Jersey, Florida, Georgia and Ohio. As well as a bunch of other places. I suppose if I am ever wanted by Virginia for a misdemeanor motor vehicle crime, the poster would run out of space to list all the potential innuendo against me.

But I digress.

As indicated yesterday, the Suspect has not been charged in connection to the Missing disappearance. He has not even been officially labeled a ‘suspect”. No, all that Charlottesville Police Chief Timothy Longo will tell us that the Suspect is believed to be the last person seen with the Missing before she vanished over one week ago.

Of course, there may be even more reason to engage in a media hunt in this misdemeanor driving case. Perhaps this nursing assistant at the University of Virginia Health System’s prior record reflect a dangerous person. After all, public records apparently reveal that the Suspect was involved in 22 incidents between 1999 and 2007, the majority of which were related to some kind of traffic violations. These crimes ranged from failure to wear a seatbelt to failure to yield or obey stop signs.

Clearly a threat to the community.

While not yet charged nor publically labeled a “suspect”, the Suspect is clearly someone who the police want to squeeze for information. The last images of the Missing were caught on store surveillance cameras which police say show the her with the Suspect. The surveillance tape is said to show the two together as they entered and left two establishments.

Yet Police Chief Longo keeps reiterating that the police are not calling the Suspect a “suspect” in the Missing’s disappearance. Chief Longo claims that the Suspect is simply someone who could have useful information about what happened to her.

Nonetheless, Chief Longo also claims that, "I believe [the Suspect] was the last person she was seen with [the Missing] before she vanished off the face of the Earth because it's been a week and we can't find her."

Attorney Sam’s Take On Slicing The Baloney A Little Extra Thin During Criminal Investigations

“Aw, come on, Sam! Give the authorities a break! Clearly this guy must be on the run because he has something to hide in the Missing’s disappearance.”

Let’s assume, for the moment, that you are correct. I still would maintain that Police Chief Longo may want to come clean and call it what it is.

The police did not, and do not, care all that much about the Suspect’s driving case. The media circus about the vehicular crime (yet another misdemeanor in an historical list of such behavior) has nothing to do with the charges facing the Suspect. Neither does where the Suspect knows people.

The police want to put as much pressure on the Suspect as possible to make him tell all he knows about the vanished Missing. Further, in all likelihood, they do consider him a suspect given the quasi-logical rantings of the police chief.

“If he is a suspect, then why wouldn’t the police call him that? Why not seek an arrest warrant for that?”

Because they probably do not have enough evidence…not only to link him to the disappearance, but also as to what charges to bring. Was she kidnapped? Killed? Sold into the Omni frightening sex trade?

There is simply not enough evidence. Further, the police are probably trying to keep their options open to potentially question him again about the missing. Once they charge the Suspect , or label him a “suspect”, he gets the benefit of certain rights. We already know from yesterday’s blog that he has a nasty tendency to assert such rights.

“You are talking about Miranda – type rights. His right to not talk and to get an attorney.”

I am.

“But they already gave him an attorney!”

Right. And that may well be where they screwed up this case.

“What do you mean?”

Let’s cover that when we finish discussing this story tomorrow.


For the original stories upon which this blog is based, please go to http://www.boston.com/news/education/2014/09/21/man-seen-with-uva-student-faces-driving-charge/s2EpPS0NikU4SPSdzO6oGN/story.html and http://abcnews.go.com/US/hannah-graham-searchers-returns-jesse-matthews-apartment/story?id=25677711

September 22, 2014

LAW ENFORCEMENT CONTINUES ITS CRIMINAL INVESTIGATION AND SEARCH FOR MISSING COLLEGE SOPHOMORE

Another story involving potential college campus crimes is in the news today. It involves what all parents fear…the disappearance of a child.

Hannah Graham, 18, a sophomore at University of Virginia, has been missing since September 13th. To make matters worse, at least three other young women have disappeared in the area in the last five years. While the police indicate that they do not believe that Ms. Graham’s disappearance is connected to the others, one cannot say for sure. After all, the disappearance of Ms. Graham remains a mystery.

The local police do have a “person of interest” with whom they would like to speak though. He is believed to be the last person to have seen Ms. Graham before she disappeared. While the police certainly want to question him, Jesse Mathew now faces charges for reckless driving.

He has not been charged in connection with the missing teen.

Charlottesville Police Chief Timothy Longo said at a news conference Sunday, ‘‘I believe Jesse Matthew was the last person she was seen with before she vanished off the face of the Earth because it’s been a week and we can’t find her,’’ Longo said. ‘I've made no mistake about it. We want to talk to Jesse Matthew. We want to talk to him. We want to talk to him about his interaction with this sweet, young girl we can’t find.’’

Longo went on to explain that Mr. Matthew had stopped by the Charlottesville Police Department’s station on Saturday with several family members. There, he apparently had the audacity to request a lawyer. When he was provided with a lawyer, he is said to have left the station in a vehicle, driving at a high rate of speed that endangered other drivers. Hence the arrest warrant.

One might wonder if the criminal charges would have been brought if the lad had not invoked his Constitutional right to counsel.

It would seem, though, that the Virginia State Police Department was not all that concerned about the threat to the streets of Charlottesville. A spokeswoman for the Department has indicated that the State Police officers did not pursue Mr. Matthew, but were conducing ‘‘surveillance’’ of Matthew and his vehicle as of Sunday night.

Meanwhile, while the believed connection to Mr. Matthew has not been released, police say that they are focusing on Ms. Graham’s movements the night of September 12 and into the early hours of the next morning. They say that she had met friends at a restaurant for dinner, stopped by two parties at off-campus housing units, leaving the second party alone.

Surveillance videos showed her walking, and at some points running, past a pub and a service station and then onto the Downtown Mall, a seven-block pedestrian strip lined with shops and restaurants.

Police Chief Longo observed that, ‘‘Somebody’s gotta know where she is and we want to know who that person or persons are...I don’t want to get tunnel vision just because we have a name, just because we saw her with a particular person.’’

Graham’s parents appeared at the news conference and her father, John Graham, appealed for anyone with any information to call a police tip line.

Ms. Graham’s disappearance has sent a ripple of fear through the quiet college town of Charlottesville. Students have said they've begun walking in pairs at night and are paying closer attention to their surroundings. Nonetheless, they have aided in the search. More than 1,000 volunteers participated in a weekend search for her, according to authorities.
The university president, Teresa A. Sullivan, issued a statement Sunday saying the university was committed to helping authorities in the search for the missing woman and ‘‘return her safely to her family.’’

‘‘We are cooperating fully with law enforcement authorities as they continue their investigation,’’ the emailed statement added.

Attorney Sam's Take On Complications Of Ongoing Police Investigations

There are various issues which are readily apparent from the thus-far released information.

First of all, did Mr. Matthew truly have the right to request an attorney? Could the police have tried to question him while he waited or after the attorney was provided?

Second, what was the point of issuing the arrest warrant for reckless driving? What part will that play in this investigation?

Third, do the police have requisite probable cause to detain or arrest Mr. Matthew?

Rather than posting a novel-length blog today, we will discuss those issues, and more, tomorrow.

In the meantime, you may have noticed we were unable to post our first Video Blog last Friday. All eyes now turn to this Friday…!

Will the third try be the charm???


For the original story upon which this blog is based, please go to http://www.boston.com/news/education/2014/09/21/man-seen-with-uva-student-faces-driving-charge/s2EpPS0NikU4SPSdzO6oGN/story.html

September 15, 2014

WORCESTER SEX OFFENDER IS ARRESTED FOR THEFT OF SUV AND KIDNAPPING OF YOUNG CHILD

Well, I don’t know how you are starting your week, but I started mine arguing with my alarm claiming that “It is not bright enough outside to be morning!” I lost that argument as shorter days get ready to become the norm.

I would guess, however, that as reluctant as I was to throw back the blanket and face the day, Worcester’s 36-year-old Victor Baez. Jr.(hereinafter, the “Defendant”) was even morehesitant. Like me, he would start his day in court; unlike me, he was probably not returning home tonight.

The Defendant, a Level Three sex offender, is set to be arraigned on charges of kidnapping, receiving stolen property, reckless endangerment of a child, and driving with a suspended license. Clearly, this was not his first visit to the halls of justice. He was previously convicted of indecent assault and battery on a child under 14 years of age in 2004.

In short, the Defendant stands accused of stealing an SUV with a 20-month child inside.

It was not really your typical car theft case. The Defendant and the owner/parents of the vehicle/baby knew each other…kinda-sorta.

According to the Commonwealth, the parents had known the Defendant for a day or two before the events in question. The actual events are said to include asking their asking the Defendant to watch the SUV/young child combination while they went into Waltham District Court to handle a matter of their own. When they emerged from the courthouse, their vehicle, baby and presumably ride home were gone.

The matter was reported to the police and, after a 45-minute “active and aggressive” search for the toddler, both the baby and SUV were found unharmed.

Attorney Sam’s Take On Dangers To Children, Law Enforcement And DCF

The Defendant in this case, like all criminal defendants, is presumed innocent unless and until he is proven guilty beyond a reasonable doubt.

Who knows…maybe it was all a misunderstanding.

The point for today’s posting though, is the troubles the child’s parents may be finding themselves in.

There are crimes having to do with the endangerment of children (even if negligently) which the Commonwealth has been known to bring when parents act in an incredibly irresponsible manner. Some prosecutors might be of the mind that handing over your vehicle, complete with baby, to a guy who you only knew a day or two and was a Level Three Sex Offender while you fought your own battles in court is not terribly responsible.

On the other hand, if the Commonwealth were to bring criminal charges against the parents, then they would have no evidence to present against the Defendant. That’s because one would expect that the pair would grasp onto their Fifth Amendment privilege against self-incrimination with a death grip. No testimony from the folks and likely no evidence against the Defendant that is not merely hearsay.

The Department of Children and Families, however, might not have that problem. In fact, one would expect that they will be paying the parents a visit if they have not already done so. In fact, one might wonder if the baby is even back home or in foster care as I write this.

Any regular reader of this blog knows that I am not a big fan of DCF and tend to think that the initials mean “Destroying Children and Families”. However, in this case, one would expect there would be reason for the agency to look into the situation.

Which, of course, probably means that they will stay out of it.

In any event, the parents should trudge very carefully as the Commonwealth agencies and offices focus in on this matter.

Might I suggest the services of an experienced criminal defense attorney who also deals with DCF nightmares…?

Video blog Update: Well, clearly our first video blog did not get posted on Friday as hoped. We are now looking to start the video posts this coming Friday.

For the complete stories upon which today’s blog is based, please go to http://www.boston.com/news/local/massachusetts/2014/09/15/worcester-man-charged-with-taking-child-court/J1x4tQHVzmHhitzcgZRv0M/story.html and http://www.boston.com/news/local/massachusetts/2014/09/12/police-arrest-man-after-allegedly-carjacking-vehicle-with-toddler-inside/jqFnKz6wuNYWUgCrAb12bP/story.html

September 12, 2014

NORTHAMPTON MASSACHUSETTS MURDER CASE WILL LIVE TO SEE ITS THIRD JURY TRIAL

Well, I suppose you have to give it to Northwestern District Attorney David Sullivan and his office. They apparently “never say die” and may actually believe in the third time is the charm theory.

Cara Rintala (hereinafter, the “Defendant”) was charged for the murder of her wife back in March, 2010. The case went to trial. The jury could not reach a unanimous decision of either “guilty” or “not guilty”. So, the Commonwealth took the case to trial again. They got the same result. A hung jury.

Finally, the Defendant brought a motion to dismiss the case rather than sit through another jury trial.

Judge Mary-Lou Rup, sitting in Hampshire Superior Court has now denied the motion to dismiss.

The case is scheduled for an October 22nd status hearing in Hampshire Superior Court, said Marey Carey, spokeswoman for District Attorney’s Office. And they are planning to go for it again.

In its motion, the defense argued that the Defendant’s murder indictment should be dismissed based on the insufficient evidence presented by prosecutors to find her guilty "beyond a reasonable doubt." It further argued that, as the Commonwealth has no significant new evidence to what was already insignificant evidence to convict at a third trial, the indictment should be dismissed and the court "should bar further prosecution."

That would be known as a dismissal “with prejudice”.

Defense attorneys also cited the Defendant’s Constitutional right to a fair trial and to be spared from double jeopardy, as well as her rights under Massachusetts common law, the due process clause of the Massachusetts Declaration of Rights, and "the court's inherent supervisory powers."

The court took issue with the court's so-called "inherent authority," stating that "even if the Supreme Judicial Court were to hold that the trial court has inherent authority to dismiss a case when jurors have been unable to reach unanimous verdicts after two successive trials, in my view the circumstances in the case do not warrant my exercise of that authority."

Northwestern First Assistant District Attorney Steven Gagne, the prosecutor in the case, also informed the court at a hearing last month that he plans to present new evidence if a third trial is ordered.

That would be known as “trying to cover all basses”.

In any event, the court has ruled that prosecutors have presented sufficient evidence for a retrial.

…And so it shall be.

In the meantime, the Defendant remains free on $150,000 bail.

Attorney Sam's Take On Double Jeopardy, Rights To Fair Trials And Other Anticipated Constitutional Rights

Well, if my regular readers have learned anything from this blog over the years is that those nice Constitutional rights that keep one warm, cozy and feeling secure at night are not always what they seem.

In fact, they are nowhere near as protective in real life as most people think.

This is but one of the reasons I always tell you not to try to argue about them with law enforcement as they are coming to arrest you. Shouting to an officer that she has no right to arrest you in the street is an excellent way to ensure getting arrested in the street.

But I digress.

The right against double jeopardy is not as broad as most people think. True, jeopardy did attach as soon as the jury was sworn in…but the prosecution itself is not over yet. Had the jury reached a verdict, then the prosecution would be over.

In other words, if the jury found the Defendant not guilty, it would be all over. The Commonwealth would not be able to re-try her for the same crime. That did not happen here.

Also, while it is true that the court has a great deal of power over what happens in the trial in front of her, that power is not absolute. Many people think that a judge can simply look at a prosecution, consider it weak and dismiss it for that reason.

This is not the case. Not in law and not in reality.

There has to be a specific legal reason for a judge to dismiss a case. Perhaps because “right to a speedy trial”. Perhaps the Commonwealth made a fatal mistake in the Grand Jury. Maybe a motion to dismiss reveals that there is not enough evidence as a matter of law to convict the defendant.

The fact that two juries could not make up their minds is not proof that the Commonwealth does not have enough evidence as a matter of law.

Perhaps more important is the reason based in reality. First of all, judges do not like to dismiss cases because they are supposed to weigh all the evidence in the light most favorable to the prosecution (in deciding a motion to dismiss) and there is a preference that cases be decided by a trier of fact (in this case, a jury).

We have argued in the past about judges who do find for the defense and are then criticized and even pressured to resign as a result of it. So, in a close call such as this, do not expect the court to extend its judicial neck on the chopping block.

On a high profile murder case no less!

These are but a few of the reasons one would expect the motion to fail. Clearly, there were more arguments on both sides, but there is limited space in a blog.

My next blog, hopefully, will be Friday’s first Video Blog for Attorney Sam. Here’s hoping it gets up there.

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

For the original stories upon which this blog is based, please go to http://bostonherald.com/news_opinion/local_coverage/2014/09/judge_oks_murder_case_retrial_after_2_hung_juries and http://www.masslive.com/news/index.ssf/2014/09/northwestern_das_office_motion.html

September 11, 2014

“DOES MY PRIOR CRIMINAL RECORD MAKE IT EASIER TO ARREST ME FOR A NEW CRIME?”

As mentioned in the beginning of this week, this blog is about to undergo some positive changes. We have discussed many things over the years that I have posted this blog. The tone has ranged from angry, to sad to somewhat humorous. In criminal justice issues, of course, those involved often find very little humor. However, for those of us who deal with it every single day, and care, laughter is necessary for survival.

We have talked about criminal, as well as quasi-criminal allegations. For a while, we heatedly debated The topic of bullying and the "heroic" statute that was rushed through the legislature to combat it.

Notice how dealing with that issue has basically vanished from sight.

This may have something to do with the fact, as I foretold, there is no ending it altogether, and, as the doomed attempt failed...why dwell on it?

Associated with the topic of bullying should be the topic of scapegoating. Both in our individual as well as international lives, we have seen obvious examples of this. Not very surprisingly, there is a rather insidious type of scapegoating about which most of us would rather not talk.

Naturally, I want to talk about it. It involves a Massachusetts criminal investigation.

Peter Pickpocket and his friend Doug Dupe go to the local candy shop. Both are 12 years of age. Peter has had problems in the past with itchy fingers and an uncontrollable love for candy. In other words, Peter has been known to steal candy in the past. Doug, however, has no such history. At least, that anybody knows about.

Peter and Doug browse through the store and finally leave. This is not unusual. Prior to the boys coming to the store, Alice Accuser, who runs the store, had put on display a very attractive combination of expensive candies. Each individually wrapped. Putting on such displays is nothing unusual for Alice.

What is unusual is that candy does not usually vanish into thin air. Just after the boys leave, Alice looks over at the display to find that the candies are gone. Being the only person running the store, she knew they had not been purchased. There had also been no other customers in the store since putting the candy out.

The boys' recent visit suddenly comes to Alice's mind and she calls the authorities. Knowing his reputation, the police pick up Peter at his home three hours later. The candy is never recovered, but the Commonwealth bring a case against Peter anyway because of the circumstantial evidence against him.

Also against Peter is that, while they were taking him to the police station, an officer told Peter that he should be ashamed for "doing such things". Peter, frightened to death, said, "I'm sorry."

What nobody else knows, is that Doug, while everybody's back was turned, including Peter's, swiped the candy. Not surprisingly, when he learns that his friend is being charged with stealing the candy, Doug says nothing. After all, the candy is long gone by now anyway.

Attorney Sam's Take On Criminal Justice Scapegoating

First, let's make sure our perspectives are understood. I would suggest that the fact that Peter never took the candy is extremely important to the cause of "doing justice ".

Second, it is understandable that people would suspect Peter. Under our Constitution and beliefs, that suspicion should not be enough to ruin somebody's life with criminal, or in this case juvenile, charges.

"But Sam, why did Peter confess?"

Did he really confess? Peter has had a troubled past, particularly with the police. The police officer has cuffed him and brought him into the police car and is now scolding him that he should be ashamed of himself. Peter knows that he has done bad things in the past. He's also scared and probably wondering what he did this time. He doesn't know that his friend took anything, so he has no idea what this is about. He does know, though, that he does not want to argue with the officer.

Anybody who has had any experience whatsoever with the criminal justice system, or is a regular reader of this blog, knows enough not to argue with the police officer or challenge him or her.

Thomas Troublemaker, a criminal defense attorney, takes on Peter's case and has the nerve to suggest that Peter, despite his history and s statement, is innocent.

You can imagine the rolling eyes that greet counsel as he argues that his client is not guilty.

Now, you may think that this scenario is unlikely. However, I think you will agree with me that it is possible. And you can believe me…it happens.

In my scenario, there were no ulterior motives for the accusers against Peter. In many cases, there are. For example, let’s turn this into a major felony case where the prosecutors are squeezing Douglas for information. “After all”, they tell him, “you were there. If you didn’t do the theft, you must have seen who did. If you don’t come clean, we are going to charge you!”

Suddenly, Doug is a government witness testifying about how Peter planned, conducted and admitted to the robbery.

We have discussed scenarios such as that many times.

You may have even seen me on the news in some of my cases referring to a client or to as a perfect scapegoat for a variety of reasons, be they money, prior record or both.

If you are someone who either has been in the criminal justice scapegoat seat, or are now occupying said position, I hope you have experienced counsel. If not, get one. For the rest of you, think twice before you are so quick to deliver the quick judgments of “Once a criminal, always the criminal” or “Well, we know he’s a criminal…who cares if he did not do this particular crime!”

You would be surprised to know how often the Universe conspires to sprinkle Karma around and how quickly you could find your last name changed to “Defendant”.

To Reader: This blog was drafted for, but mistakenly not posted, yesterday. Another blog will be posted this evening as today's. It will also give you information about Friday's new type of blog. As always, thanks for reading!