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.

September 15, 2014


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 and

September 12, 2014


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 and

September 11, 2014


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!

September 9, 2014


Welcome to 2014. A new IPhone is supposed to come out and the technological landscape seems endless. With endless horizons, however, come unknown dangers. Adults may not yet completely understand this technology. Our kids do, though.

They understand it just enough to get themselves into trouble.

“Innocent girl on Instagram flipping the bird. Perking lips with her curves, showing more skin than her shirt. And she’s beautiful, but half naked, I wonder why. But what the hell can I tell her yo? She just passed a hundred likes. A false percentage of people who appear like they care enough About her.”*

Ah yes, the all-important likes. The more “likes” you have, the more popular you must be. So, kids like to push the limits online to gain that popularity.

As we have discussed many times in the past, though, there are many dangers lurking in cyberspace. This being a criminal law blog, let’s look at the criminal justice dangers. Primarily, posting certain things can not only be dangerous, but illegal Massachusetts cyber-crimes as well.

For example, possessing or sending photographs or videos of naked children brings about charges regarding child pornography which can land one in prison and force one to register as a sex offender for a long, long time.

We have seen many cases where someone posts something that can be interpreted as a threat. Criminal charges often come.

For a long time now attorneys have learned to check online to find information about adverse witnesses. On Facebook and Twitter, you would be surprised what you might find voluntarily posted.

Let’s turn to the Commonwealth’s neighbor to provide a very recent example.

This past weekend, in Merrimack, New Hampshire, an anonymous tipster advised authorities about local teens who were tweeting about an underage party.

Sure enough, law enforcement investigated and four teenagers ended up arrested.

Paige Graef, and adult at 18, was charged with facilitating the underaged drinking party at her home as well as the possession of marijuana. Jared Wagner, Elizabeth Shambo and Heather Normandy, all 18 as well, were arrested for marijuana possession.

All are due back in Merrimack District Court later this month.

According to the police, there was a large of underage drinkers at the home who were not arrested but released to the custody of an adult.

Tweets and postings are generally available to most, if not all, of the public. After all, that is the point. To communicate and be popular, right?

Attorney Sam's take on Kids, Cyberspace And Criminal Activity

Statements made by party opponents (in other words, your adversary in court) are admissible. It is an exception to the regular rules against hearsay. In other words, statements made by you, whether orally or in writing can be admitted as evidence against you.

“But, Sam, can’t you bring a motion to suppress? After all, what gives the police the right to track your private conversations?”

In this case, they were not tracking private conversations…they were tracking public conversations.

No legal expectation of privacy. No motion to suppress.

I have handled a great many cases in which the government seeks to convict a defendant primarily on his or her own admissions.

“So, you are saying that the statements the kids made to each other guarantee a conviction?”

Well, if you are a regular reader of mine, you know the answer to that. Very few, if any, results can be guaranteed. One never says “never” about any litigation.

The reading of the tweets gave the police the information to go to the party and discover what was there (although an argument could be made against that for reasons I will not get into here). However, it sounds like the tweets were done prior to the party. Assuming that to be true, then, while the statements mention an intent to have the party…they are not really admissions of having done the partying. Further, we are unaware of any mention of the marihuana.

The lesson, however, is clear.

What you post in public…is posted in public!

That goes for pictures, statements and all kinds of private information.

“Girl, why the hell you do that? What you thinking today?
What? You’re missing a feeling or you can’t get one away?
Those pictures where you’re stripping really stripping your
Innocent name.
You think those Instagram filters will filter your pain?”*

In short, this is not the ultra-safe world if feels like. You may be all cozy while you are posting in your bedroom…but the response you may receive (even potentially years down the line) may be anything but cozy.

* Lyrics from “Talk To You”, a new music video dropped today by my favorite rapper, Token, and available at . Additional information at Token at .

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

September 8, 2014


First of all, welcome to the new Boston Criminal Lawyer Blog. As time moves forward you will see a return to daily posting as well as other changes hopefully later this week. Consider it Attorney Sam's Take Volume II

In the meantime, we turn to the skies.

We have discussed many times the vague and over-extending of the Massachusetts misdemeanor known as "disorderly conduct". Basically, if you're conduct is considered offensive to a police officer, you can be charged. Generally, it is not the heaviest crime in the world...just enough to go on your record, cost you thousands of dollars and greatly effect your future for the negative. That, of course, is regardless of how the case comes out.

Unless you are a celebrity or well-known, the. case is not likely to get too much media attention.

All that can change, though, depending on the location of your disturbing the proverbial peace. For example, if you become a "problem" on federal property, you are likely to find yourself facing federal prosecution.

In case you had any doubt, commercial airlines are considered federal property for this purpose. Needless to say, there is no sense of humor thereon when dealing with disturbances on airplanes. That starts with the flight crew and goes right through to the media.

Just recently, there have been a number of such federal criminal cases reported in the media.

Last month, there were two such incidents within the same week which were very similar. They were clashes between passengers over another the commercial trend of shrinking legroom. In both cases, the plane actually had to be diverted from it's intended destination.

It was a Miami-to-Paris American Airlines flight which landed in Boston, not a scheduled stop. The stop was caused because of an incident in which in-flight air marshals broke their cover to restrain a man who had fought with another passenger trying to recline in front of him According to law enforcement, the air marshals acted after the man allegedly grabbed the arm of a flight attendant. The flight continued thereafter and Edmond Alexandre, 61, of Paris, faces federal criminal charges.

Mr. Alexandre’s incident came just days after another gent, this time on an United Airlines flight got into his own brand of mid-flight trouble. He used a product called a “Knee Defender” to prevent the seat in front of him from reclining. The woman in front of him began arguing with him about the situation and then reportedly threw a cup of water in his face.

The argument prompted the Newark, New Jersey-to-Denver flight to be diverted to Chicago. When the plane continued its flight to Denver, the pair were not allowed to be on board.

Of course, in-flight drama is not limited to American flights. During a recent Toronto-to-Cuba Sunwing Airlines flight, two ladies drew attention to themselves leading to an escort back to Canada by two fighter jets.

The ladies are said to have drank "a significant quantity of their duty free alcohol purchase in the lavatory and lit a cigarette, triggering the smoke detector alarm," according an airline statement. After that misadventure, the two ladies apparently began fighting each other and made a threat against the aircraft, "which was considered non-credible given their condition," said Janine Chapman, a spokeswoman for the airline.
Regardless of the credibility two fighter jets were sent out and the women were taken into custody in Toronto.

Some folks blame the shrinking space and more packing in of passengers for these incidents.

Don’t expect the halls of criminal justice to look at it that way. Discomfort or aggravating circumstances are not legal defenses.

Attorney Sam's Take On Federal Cases Not Being So Funny

Many of these stories are treated as humorous anecdotes for earth-bound places of business. They turn out to be not so funny when they make the proverbial “federal case” out of it.

There is nothing funny about facing criminal charges in federal court.

Especially in the years since September 11, 2001, law enforcement, the courts and flight crews have no sense of humor when it comes to aircraft safety. Too much can go very, very wrong.

While behaving in a disorderly way in regular environments around the Commonwealth, you face a misdemeanor charge. Often, if you have good counsel, you have a decent chance of getting rid of it at a Clerk Magistrate’s Hearing.

“So, what’s the message here, Sam? Just to be careful where you act out?”

In a way. Also, if you are facing criminal charges in any court, you are best off being represented by experienced counsel be it for a Clerk Magistrate’s Hearing, Massachusetts State Court or Federal District Court.

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

August 28, 2014


Do you think you have been having a bad week?

Well, you are invited to compare yours to that of 43-year-old Jose Luis Tejada (hereinafter, the “Defendant”) of Lawrence. As the third anniversary of his shooting his girlfriend and two kids (Labor Day, 2011) approaches, his Salem murder trial has ended. After deliberating five hours, the jury found him guilty. On Tuesday, he was sentenced to three consecutive life sentences.

Judge Howard Whitehead presided over the trial in Salem Superior Court and, at the sentencing hearing, called the killings “barbaric and evil”. Three family members of the deceased mother and teens also gave emotional impact statements to the court.

The Defendant apparently tried his hand at explaining his anticipated defense to the police around the time of his arrest…as so many soon-to-be-convicted suspects do. It would seem that it was sort of a sympathetic self-defense theory of some kind.

Police say the Defendant told investigators that he had done the killings because he was tired of them shouting at him. He also explained that he had originally tried to shoot himself too…but he had run out of bullets.

In case you had any question, neither “I killed them to shut them up” nor “I would have killed myself too out of grief, but I had pumped so many bullets into the victims that there were none left for me” are not recognized legal defenses,

Attorney Sam's Take On Announcing Your Defense Strategy To Law Enforcement Prior To Engaging An Experienced Criminal Defense Attorney

We have discussed this type of situation many time in the past.

Many people, upon being confronted by law enforcement believe that they can help themselves by simply agreeing to talk to the police instead of exercising their rights to counsel and to remain silent.

By law, the police must give Miranda warnings in custodial situations. That being true, don’t you think those warnings must be something kind of important?

“Well, I can understand if the police come in and start confronting you at a murder scene, and if you did it, that being the case, Sam. But what if you know that you have not done anything wrong? Isn’t it best to just explain the situation to the officers?”

While one answer to this question will not necessarily apply to all cases…no.

There are several problems with “coming clean” with the police alone and without the benefit of counsel.

First and foremost, you should not assume that the police are going to believe you. Quite often, the police have an interest in not believing you. Not that they want to prosecute innocent people, but they tend to jump to all kinds of conclusions and those conclusions are seldom complimentary to a suspect.

Your interrogation is unlikely to be geared toward exoneration. Your words are likely to be twisted and I have not yet met a person who is always consistent, no matter how honest they are. One little misstep, however innocent, can aid the argument to a jury that you are a liar and guilty of whatever offense you have been accused.

Secondly, many people do not truly understand the intricacies of criminal law and the elements of crimes. Police officers are, by law, allowed to lie to you in order to get you to incriminate yourself. Sometimes people think they can outsmart the prosecution in advance. I have had clients who think that a case against them in which they accused of hitting someone with their left fist will be dismissed because they actually had hit the person with their right fist.

Sometimes folks think that not knowing the law is a defense. It isn’t.

So, am I saying that one should never cooperate with law enforcement? Of course not. However, particularly if you are being suspected of having committed a crime, my suggestion is that you politely explain that you want to consult an attorney before you speak to them. They have to let you.

“Won’t that anger the police or make them think I am guilty?”

They may act that way because, let’s face it, they would rather you not have counsel who might interfere with their strengthening their case against you. But most officers understand that it is a wise thing to do…innocent or guilty.

Given that investigating officers bring a wealth of experience in questioning and trying to solve crimes, and they likely know their scenario they are looking to prove, wouldn’t it make sense to get someone knowledgeable in these areas on your side since you have none of these?

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

August 12, 2014


Last week, Dedham police officer Michael Schoener (hereinafter, the “Defendant”), 40, was in court. No, not in the seats reserved for police officers waiting to testify…in the defendant’s seat waiting to be arraigned.

The Defendant has been arrested in connection with an ongoing investigation into the kidnapping of an Avon man which is alleged to have taken place back in January. The arraignment took place in Norfolk Superior Court. The specifics involve allegations of having supplied police gear and other materials to the kidnapping scheme.

37-year-old James Robinson from Avon was allegedly kidnapped from home on new Year’s Day. According to Mr. Robinson’s parents, he was taken by two men “posing as” officers. Authorities say he has not been seen sincxe, although law enforcement apparently believes that he is no longer alive.

Prosecutors claim that the Defendant was an associate of one of the kidnapping suspects and had, in fact, been buying pills from that suspect. They allege that the Defendant gave the suspect his Dedham police badge, handcuffs and an empty gun holster and that those items were used to lure Mr. Robinson away. It is also alleged that the Defendant provided the alleged kidnappers with a picture and probation information of the Mr. Robinson.

The Commonwealth further claims that two other kidnapping suspects posed as constables and told Mr. Robinson, who was on probation, that he needed to report for a drug test.

Two kidnapping suspects. along with a man police believe to have planned the kidnapping, have previously been arrested.

The Defendant is not currently in custody. After a night in jail, he entered a “not guilty” plea in court and was released on $5,000 bail. He will also have to wear a GPS tracker.

In the meantime, the Defendant has been placed on leave from the police department. For their part, the Dedham Board of Selectmen released a statement saying "The charges against Officer Schoener are serious. We have confidence in the district attorney, law enforcement and judicial system and we cannot comment on ongoing investigations."

Make of that what you will.

My guess?

“We don’t want to get sued here or look like idiots. We believe that the system will work this all out in its own way…not involving us.”

Attorney Sam’s Take On Deals And Conspiracies

This seems like one of those cases that there's more action going on behind the scenes then on the surface.

We have discussed the theory behind conspiracies or joint enterprises many times. If the actual kidnapping scheme is prosecuted as a conspiracy, then those who aided in that conspiracy can be prosecuted for what the other participants do to further the goals of that conspiracy.

This is why the Defendant need not have actually taken part in the actual kidnapping event in order to be held responsible for that event.

One would expect that the idea on the part of the prosecution would be to put pressure on people on the outskirts of the kidnapping, such as the Defendant, in order to prosecute fully the participants of the actual act. There is a twist here, however.

The Defendant is not an ordinary guy. He is a police officer. Someone holding the public's trust as he holds onto his shield, gun and all the other law enforcement accoutrements. Therefore, if he is going to be prosecuted, he is of more interest than he otherwise would be.

Generally, in cases such as this, one would have expected the order of the arrests to be different. In other words, it is usually people on the outskirts of the event that are arrested first. The hope is that they will give information on the "bigger fish" in order to get a better deal. I suspect that in this case, the attempt to get a better deal would be made by one of the other actual participants in the conspiracy. The reason is that the fact that the defendant is a police officer makes that information more valuable.

We just passed the anniversary of a similar case. That of the late former President Richard M Nixon. 40 years ago this past weekend Mr. Nixon felt compelled to resign from the office of the president of United States of America.

This had to do with the infamous Watergate break-in and conspiracy. As for the break-in itself, we are talking about, depending upon Washington DC's statutes' names, a burglary and/or a breaking and entering. Mr. Nixon was never suspected of taking part in the actual physical Brakin at the Watergate Hotel. However, he is alleged to have been involved in the planning of the Break-in as well as the conspiracy afterwords to prevent suspicion from finding it's way to his doorstep.

Because Mr. Nixon was not an ordinary guy, but the president of United States, his involvement became even more important to prosecutors than the involvement of the actual burglarers.

Of course, in this case, much of the defense is easy to foretell. Those who gave information against the Defendant did so because they wanted to make a better deal and were willing to lie in order to get that deal. If, indeed, the kidnappers had items belonging to the defendant, they somehow got into their possession without the aid of the Defendant. Of course, it is important to note, that the fact that parts of the defense are easily predicted does not take away from the fact that they could indeed be true.

Often, one has to reminds jurors and judges that that is the case.

As for the government's case, there are also issues with that that are already apparent. For example, it appears that there inconsistencies in how the kidnapping may have taken place and witness statements. Of course, time, and a good attorney, will have to flesh that out for us.

On a different note, I will be returning to the subject matter last left off in the near future. Unfortunately, events have decimated attempts to regularize the blog, or even do it, for the past couple of weeks. Let's cover some more up-to-date matters first.

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

July 25, 2014


And so the federal conspiracy and racketeering trial came to an end this week. It arose out of the Massachusetts Probation Department. When the dust cleared, former Probation Commissioner John J. O’Brien, as well as his deputies William H. Burke III and Elizabeth V. Tavares, were found guilty of several charges and O’Brien’s wife was screaming in the courtroom that “the government is corrupt”.

Then, she fainted and that was that.

Ironically, the subject matter of her shouts was what the trial was about. Government corruption.

I would expect, however, that she was not talking about the same corruption about which the jury had just rendered their verdicts.

Given the high profile convictions, United States Attorney Carmen Ortiz was on hand for another moment in the (way-too-hot) sun to address the media.

“After weeks of testimony it became clear that there was serious corruption in the practices of the Probation Department,” she announced after the trial outside the federal courthouse on the waterfront in South Boston. “This is especially troubling to those of us in law enforcement who understand the critically important role probation plays in the criminal justice system.”

One might assume that this case had been about preferential treatment given to probationers, or negligent oversight of probationers or some kind of illegal conduct with regard to the probationers; it is the Probation Department’s sacred duty to oversee.

One would be wrong.

The federal prosecutors had spent 10 weeks arguing that O’Brien, Burke and Tavares conjured up a corrupt hiring process in which they chose sometimes-unqualified applicants under the guise of a legitimate process, and, in return, saw their department’s budget and staff boosted.

The defense argued that their clients did nothing wrong — that they were part of a business-as-usual approach to hiring in the Bay State. They vowed to appeal the verdicts to both the judge and then a federal appeals court.

The jury found the defendants guilty in the following ways:

1. O’Brien — guilty of racketeering conspiracy for running a years-long fixed hiring system as well as four counts of mail fraud and one count each of racketeering;

2. Burke – guilty of the racketeering conspiracy for running the same hiring system; and

3. Tavares – guilty of racketeering conspiracy for running the same system as well as four counts of mail fraud and a count of racketeering.

Sentencing is set for Nov. 18. They all face 20 years in prison on any of the various counts.

Meanwhile, the ripples across the political river continue to expand. Mrs. O’Brien was taken by ambulance to a hospital. Politicians, who were not prosecuted at the trial, but certainly besmirched nonetheless are speaking out.

For example, House Speaker Robert A. DeLeo acknowledged today his name and reputation have been scarred by the probation job-rigging trial that rocked Beacon Hill. However, he announced that he has no plans to step down from the House’s top spot following the guilty verdicts.

The prosecutors alleged that DeLeo conspired with O’Brien to score Probation jobs for lawmakers in return for their backing. He was not a defendant at the conspiracy trial however.

DeLeo has responded that , “The jury’s verdict confirmed what I have been saying all along: that I never participated in a conspiracy with any of the defendants and that I never traded probation jobs for votes….When someone makes certain allegations such as this, I think the unfortunate part is, it does taint you and it taints your reputation.”

It cannot be denied that the United States Attorney was not called upon to present proof against DeLeo or to prove her allegations against him at trial. Nonetheless, her office was free to make accusations against him in the public trial through the named defendants. However, overall, DeLeo says he was “vindicated” that the jury — despite finding O’Brien guilty of racketeering conspiracy — did not find former commissioner guilty of bribery charges related to an alleged quid pro quo to help get DeLeo, then the chair of House Ways and Means, elected Speaker.

Attorney Sam's Take On The Right To Confront One’s Accusers And Its Denial

Prosecutors reading this posting, or otherwise learning DeLeo’s response, might be thinking he should feel lucky that he was not prosecuted.

Nobody likes to be staring down the barrel of an indictment, federal or otherwise. However, facing criminal charges does, at least, give one a chance to confront accusers in court.

“Well, he can certainly have his say in the media, right, Sam?”

Sure. But is that really the same or is it perceived as mere political “spin”?

We have been brought up on the belief that we are all “innocent until proven guilty” and that we all get a chance to face our accusers and clear our names.

We have discussed these assumptions and how close they come to reality.

We are about to do so again…next week.

Until then, have a great, safe and law-abiding weekend!

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

July 22, 2014


Today, we finish this topic and I provide evidence that I am trying to get these blogs out on a regular basis. The latter item first. Two blogs posted in two days.

And now the important stuff.

You might think that, by yesterday's blog, I am arguing that DA Morrissey should have been criminally prosecuted. I am not. However, his example shows what we already knew...not everybody gets the same treatment by the prosecutors or courts. Further, some statutes just lend themselves to illogical prosecutions.

Simply, DA Morrissey's case was handled properly. My client's, and perhaps yours...maybe not so much.

"But, Sam, how can you fault new laws that mandate educating people about the need for sleep and the problem of drowsy driving?"

I would imagine that the information is already given. If not, I do not fault that part of the laws. Education is good. Of course, burying it in a statute may not be the best way to get it read by most people.

I cannot protest efforts to bring a higher level of education to new drivers as the suggested legislation provides. I would hope that common sense would take care of that without the need for such a regulation, but I have learned that "common sense" is not really so common.

Call it professional experience.

Other statutes, however, which seem to suggest complete medical diagnoses and/or per se prosecution for being drowsy, cranky or typical civil law “negligence”, in my view, are neither enforceable nor sensible. We are not talking about intentional or even reckless behavior here.

In the criminal arena, we are also dealing with a burden of proving beyond reasonable doubt what someone might have or should have known…in this case, about their own mind state.

How do we measure such awareness? Should it be a crime to leave home in the morning having not had your cup of coffee? What do we do with all the police officers and other such workers who work “double shifts” all the time? Perhaps anything other than an 8 hour day should now be made against the law.

Further, why stop at being tired? What about driving with a toothache? I remember how distracting a toothache can be. Many artists claim that great ideas come to them while driving. It would seem that this, too, should be illegal. Inspiration is distracting. Inspired driving, under the current view of the Commonwealth, should be a crime if you are one of the general public.

I recall your attention to the heart patient about which I wrote in my last blog. The heart patient has a heart attack while driving. He passes out and his car hits someone. Was his driving, clearly inattentive, a crime? What if that heart patient had a big dinner of salami and cheesecake the night before? What if he had an argument with his wife? These are even more indications which could precede a heart attack. Should he be prosecuted for homicide if he drove under those circumstances?

Most intelligent people would answer in the negative. There are some places where criminal prosecution does not belong. I would say that questions of simple negligence is one of them.

Now the big question…what does this issue mean to you?

The trend toward criminalizing everything is something we have discussed many times in the past. This is but one more example.

It is also another example of how the Commonwealth and the courts do not always enforce those laws equally.

Thus, every time you talk to someone, get behind the wheel or even get out of bed in the morning, you are best advised to “watch it”.

Beware that if you speak harshly to someone, you may be bullying or emotionally abusing them. Beware that if you “get something off your chest”, even if in writing lyrics to a song, you may be labeling yourself a threat to society. Beware that if you drive, certain things could go wrong which could turn your last name into “Defendant”.

And we have not even gotten to circumstances in which people actually lie.

“Come on, Sam! You are painting a pretty dim picture of daily life, aren’t you?”

I guess I am.

Call it professional experience.

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

July 21, 2014


When I have been able to blog over the past few weeks, we have been discussing cases involving Massachusetts motor vehicle crimes. In particular, vehicular homicide cases involving negligent operation as a result of the driver falling asleep or otherwise losing consciousness. The two prior postings on this subject can be located at my posting of June 26th and July 7th.

You may think that I am making up the fact that the Commonwealth is prosecuting these cases of negligence as crimes despite the existing civil litigation.

I’m not.

Actually, our fearless leaders in the Massachusetts legislature have been working to make falling asleep while driving a crime in and of itself. Over the past few years, various statutes dealing with “drowsy drivers” have been debated.

Legislative efforts to reduce the number of drowsy drivers on the road are energized the result of various new findings in research, not the least of which are those that show the negative impacts of sleep deprivation.

An example of recent legislative attempts in 2014 would be SB 1688. It would create a new commission to study the impact of drowsy driving on state highways and require drivers wishing to obtain or renew a commercial drivers license with a body mass index of greater than 33 kg/m2 to undergo a screening for sleep apnea. It would further require the Department of Motor Vehicles to include education about the effects of sleep deprivation and driving as part of a drivers license application; creates a new standard for impaired driving if the driver has been awake for 22 of the past 24 hours or 140 of the past 168 hours.

One might wonder whether such new laws are necessary when the current ones are selectively prosecuted. For example, while the accident which led to my recent trial recounted in my last posting was in its early stages, Norfolk District Attorney Michael W. Morrissey was involved in a four-car crash of his own in Milton. Nobody died, but people were hospitalized.

The cause? District Attorney Morrissey lost consciousness while driving. He indicated that he had “fainted”.

In other words, he lost consciousness, which led to “inattentive driving”.

Interestingly, the local clerk magistrate’s office decided not to issue a complaint against him.

No, that does not mean that the prosecutor was found not to be at fault, of course. As a spokesperson for the state trial courts released, “District Attorney Morrissey was found responsible on a civil matter of failure to stay within marked lanes and a $100 fine was imposed.”

In other words, he broke the law negligently while driving.

According to the medical records of the prosecutor, he “suffered from a vasovagal syncope, which caused me to lose control of my vehicle.” A vasovagal syncope is a fainting spell usually caused by the body’s overreaction to certain triggers, like emotional distress, according to the Mayo Clinic. Morrissey added that he thought it was “a result of dehydration and fatigue on one of the hottest days of the year.”

In other words, he drove aware he was feeling fatigued, stressed and dehydrated.

Gee, that’s odd. The entire Commonwealth theory which put my client in front of jury was that he 1) fell asleep, which caused “inattentive driving”) and/or 2) that my client (despite no evidence to support the claim) was knew he was tired and so should have foreseen he might fall asleep.

Why was my client criminally liable and DA Morrissey was not?

Thank God for jurors!

Perhaps the problem would be better dealt with by putting serious thought behind how we enforce, nor not enforce, the laws already on the books instead of creating new laws which are needless, unenforceable and will also be twisted like pretzels to…particular situations.

What does all this mean to YOU?

Read me again...tomorrow when we will finish this topic (for now).

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

July 7, 2014


On my last blog, I said that, “There are other cases, similar to this, which better demonstrate not only the attitude on the part of the Commonwealth when it comes to car accidents, but also it's rather uneven view of such cases.” That blog, incidently, was posted on June 26th.

I had expected to continue it the next day, but I got swept up in a trial of my own on the subject. By the time I was ready to post, it was too close to the trial to do so. I did not want to risk being told I was jury-tampering.

But the motor vehicle homicide trial of my client is over now. After two years of hell, venturing through the criminal justice system, the jury found him Not Guilty. The matter now rests within the civil justice system…where, in my opinion, it belongs.

My client, a 20-year-old Townsend man (hereinafter, the “Client”), was charged with motor-vehicle homicide by negligent operation in a 2012 crash that killed a popular 57-year-old Concord-Carlisle school bus driver (hereinafter, the “Deceased”).

Still at the scene of the accident, the Client made statements that he had fallen asleep behind the wheel.

Most of the facts surrounding this tragedy were undisputed. There was no question about what caused the Deceased’s death. It was the car accident. The Deceased was walking his dog when the Client’s car, driven by the Client, struck and killed him. While this may be different in the civil proceeding which is on its way down the trenches, there was no issue of any blame on the part of the Deceased.

On the other hand, there was also no issue of drug or alcohol use on the part of the Client. It also appeared that, until seconds before the accident, the Client was not speeding, driving recklessly or anything that would signal the watchful eyes of any nearby law enforcement.

One of the press accounts, that of the Lowell Sun, which followed the trial, is referenced below. As is not atypical I have found, certain facts (not to mention my last name) were incorrectly reported for some reason. While the Client did tell law enforcement that he had fallen asleep, he never indicated any potential cause for doing so. While the Sun suggests that it was his work schedule, the Client never indicated as such. In fact, the testimony at trial was that the Client had worked a normal shift, although it was busy because of the new I-phone becoming available.

The testimony from everyone else who was at the scene was that the Client was crying, in shock and expressing a great deal of concern for the Deceased.

The Client further testified at trial that he had assumed he had fallen asleep simply because the crash brought him back to consciousness. Therefore, he reasoned that he must have lost consciousness.

A thorough police investigation, complete with accident reconstruction experts, was conducted. The police determined the crash did not involve drugs or alcohol, and there was no speeding nor texting while driving.

Based upon the Client’s statement at the scene, the accident was found to be a result of his having fallen asleep at the wheel. According to the Commonwealth’s expert witness, being asleep made the Client inattentive while driving.

And who could argue with that? It is hard to imagine that a driver would be attentive while his eyes are closed.

Attorney Sam’s Take On Statements And Falling Asleep At The Wheel

As we will be discussing in more detail, the law is a bit fuzzy when it comes to the charge which faced the Client in this case. Basically, the Commonwealth charged that it had been the negligent way in which the Client drove which caused the accident which resulted in the Deceased’s death.

“Well, Sam, doesn’t that go without saying? Isn’t it a given?” While the prosecution disagreed, our reading of the law was that there had to be some negligent act in the situation. In other words, that the Client had not met the reasonable person standard while driving. This would indicate some sort of decision on the part of the Client to disregard the potential risk.

In this case, the prosecution’s case centered around the Client’s statement that he had fallen asleep.

“Isn’t falling asleep negligence in itself, Sam?”

As mentioned, I would say not. At least, not in the criminal sense (in that the accusation must be proven beyond a reasonable doubt). For example, let’s say someone with a history of heart disease is driving and he has a heart attack. As a result, he loses consciousness or is in some other way “inattentive”. Is he criminaly negligent?

“That’s totally different. He did not know he was going to have a heart attack. It was involuntary.”

Then, as I argued to the jury, if you are not ready to convict the heart patient, you cannot convict the Client. There was nothing in the evidence that demonstrated that there was any reason for the Client to know he was going to fall asleep. He was not nodding off and, although certainly more tired after a day at work than before it, he was no more tired than usual.

That heart patient, however, knew he had heart issues. Therefore, there was reason to believe that a heart attack was possible.

Personally, I would argue that neither example should be convicted…or even charged with a crime.

On my next blog, we will discuss how political this issue has become. Further, how the Commonwealth is not always so even-handed when it comes to such prosecutions.

The state of the law may surprise you!

In the meantime, you have yet another example of having your own words made in good faith to officers of the law be used to strangle you with a criminal conviction.

To read the original article upon which this blog was based, please go to

June 26, 2014


Ghuzlan Alghazali, 26, and Mohamed Alfageeh, 29, both of Allston have had a rough week in the Massachusetts criminal justice system. It resulted from a horrific and tragic accident over the weekend. There was a crash in Back Bay and two pedestrians were left dead.

As the week began, Alghazali, whom the Commonwealth claims was driving the vehicle, was facing two counts of Motor Vehicle Homicide by negligent operation. More specifically, law enforcement claimed that She drove through a red light and struck another vehicle. That vehicle rolled over form the impact and struck the two pedestrians, causing the deaths.

Alfageeh, the alleged passenger in Alghazali's car, was said to be facing charges of misleading investigators. That’s right, we are talking about the felony charge of Intimidation of a Witness, an unfortunately-named charge we have often discussed. His alleged crime was in telling law enforcement that it had been him driving the car instead of Alghazali.

The stated reason for the lie, according to police, was to protect Alghazali, who did not have a valid license to drive.

While, as the week began, no arraignment had been set for Alfageeh, one had been scheduled for Alghazali.

And then came Tuesday.

On Tuesday it was announced that there would be no arraignment yet. In fact, Alghazali, who had been held in custody, was released without any charges being brought…yet.

The Suffolk County District Attorney’s Office announced that, instead, they were going to do more investigation. They are trying to determine who was driving and need to do ‘‘further canvassing and evidentiary analysis.’’

Further investigation to ascertain facts. Interesting concept.

Attorney Sam's Take On Rushed Criminal Charges And Strategic Reasons For Presumptive Fairness

Despite how it may seem, Alghazali is nowhere near out of the woods yet. However, her criminal justice fate is tied very tight to that of her co-defendant.

What we don't know is how law enforcement jumped to the conclusion as to the identity of the driver. They were so sure, in fact, that they not only charged one defendant as the driver, but actually charged the other defendant with lying to the police about who the driver was. Whoever turns out to be deemed the driver is clearly looking at a roadway of trouble ahead.

It used to be, back when commonsense had a hand in the application of justice, that there we're such things as "accidents". Those accidents were no less tragic… They just kept some of the issues in perspective. What would happen would be that one person would bring a civil lawsuit against the other person and work it out in court that way.

Things have changed. Those who rule our criminal justice system no longer seem to believe in "accidents". Don't make a mistake and assume that there is a chance that no one will be prosecuted in this case. At least one of these defendants will, indeed, be prosecuted for the accident itself.

"Well, Sam, shouldn't that be the case? After all, the car did go through a red light and smash into another car. Further, if the driver was who the police believed it to be, she had no valid license."

That's true. However, if she was indeed the driver, there is no evidence to believe that her lack of license contributed to the accident… not to mention in a criminal manner. On the other hand, if that were the case, the accident took place while she was violating the law in two ways. At the very least, she should not have been driving because of the license issue. Secondly, she ran through a red light. If the gentleman had been driving, he at the very least, went through a red light.

Such issues are litigated in civil court rooms every day throughout the country. There is an issue of negligence. Clearly, whoever the driver was in this case, there is a strong case against him or her for negligence.

Civil justice, however, no longer is enough for us. In so many cases, our system seeks to punish the person at fault with criminal charges. It is another reason why criminal prosecution is no longer distributed to only those we call "Criminals". A person could have a stellar history. The person could have no prior blemish on their criminal record and have led an exemplary life. Have a car accident and resulting death and that person is facing being labeled a "criminal".

But then, perhaps this is not the best case to demonstrate this point.

As mentioned above, whoever the driver turns out to be, according to the Commonwealth, is in trouble. Aside from the civil lawsuit(s), there is going to be a criminal prosecution. Both these people need experienced criminal defense counsel.

By the way, the "gift" of freedom given to Alghazali was likely not simply made out of kindness. Nor, actually, out of a sense of constitutional rights. The fact is, this case may well depend upon statements made by the two defendants. Clearly, the case for lying to the police is. Now that the defendants are not in custody, the police may question the defendants without reading them their rights. They are not in custody and so the statements would not be suppressed.

Only one thing stands in the way

The defense attorney.

If the defendants have experienced counsel, Council will be able to protect them as much as possible. If not, they are prey.

There are other cases, similar to this, which better demonstrate not only the attitude on the part of the Commonwealth when it comes to car accidents, but also it's rather uneven view of such cases.

"What does that mean?"

Check out my next blog, tomorrow.

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