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.

December 18, 2014

MASSACHUSETTS COMPOUNDING PHARMACY IS IN FEDERAL COURT ON CRIMINAL CHARGES OF RACKETEERING AND HOMICIDE IN FUNGAL MENINGITIS OUTBREAK

It is the next act in a drama which came to pubic attention in 2012.

In 2002, there was a deadly national outbreak of fungal meningitis. The outbreak was linked to steroid injections from a Massachusetts compounding pharmacy. Owners of the pharmacy, the New England Compounding Center (Hereinafter, “NECC”), were among those just arrested in connection with the disaster.

The United States. Centers for Disease Control and Prevention tied 751 cases across 20 states to the steroid injections. A total of 64 people died as a result.

Those who became infected came down with fungal meningitis -- which results in inflammation of the membranes covering the brain and spinal cord. That inflammation, according to health officials, resulted from the spinal injections with a contaminated, preservative-free steroid called methylprednisolone acetate.

The problems came to light when the first cases were reported in fall 2002. Framingham-based NECC voluntarily recalled three lots of the steroid that September. The next month, Massachusetts reported that it had "identified serious deficiencies and significant violations of pharmacy law and regulations that clearly placed the public's health at risk."

In 2013, NECC's owners agreed to create a $100 million fund for victims of the outbreak, about a year after filing for bankruptcy protection under Chapter 11. However, in January, 2013, the compounding pharmacy filed a letter with the Securities and Exchange Commission claiming its cleaning company should share responsibility for the outbreak. UniFirst Corp. acknowledged that it provided "once-a-month cleaning services," but added that the pharmacy's claims are "without merit," the filing says.

In the meantime, federal investigations had, of course, begun. Health officials consistently blamed those behind NECC and its sale and administration subsidiary, Medical Sales Management, for the problem.

This week, an indictment was filed in Boston’s United States District Court. This introduces the potential of incarceration for those charged. The 14 people arrested face an array of charges such as racketeering, conspiracy, mail fraud and the production and sale of both "adulterated" and misbranded drugs.

NECC President Barry Cadden and supervisory pharmacist Glenn Chinn face the second-degree murder charges, which the U.S. Justice Department noted "does not require the government to prove Cadden and Chin had specific intent to kill the 25 patients, but rather that (they) acted with extreme indifference to human life."

"These employees knew they were producing their medication in an unsafe manner and in insanitary conditions, and authorized it to be shipped out anyway -- with fatal results," Attorney General Eric Holder said. "American consumers have a right to know that their medications are safe to use."

The indictment claims that NECC did not comply with cleaning, sterilization and other safety regulations -- and that many who worked there, from its owners to pharmacists -- actively lied about it.

NECC President Barry Cadden, for one, "instructed the ... sales force to falsely represent to customers that NECC was providing the highest quality compounded medications," the indictment states. He and others also allegedly used or approved the use of expired or expiring ingredients and "failed and caused others to fail to properly sterilize drugs," it states.

One pharmacist allegedly told technicians "to prioritize production over cleaning and disinfecting," even telling staffers to "fraudulently complete cleaning logs at the end of the month."

The bottom line is that, according to the government, not enough testing was done to make sure the drugs were safe. When it was, it often indicated problems, according to the indictment. Yet "action-level sampling hits" in 37 out of 38 weeks didn't prompt NECC to re-evaluate, investigate or do something significant about its procedures and practices.

It allegedly simply went for profit over safety, thus, with criminal indifference to human life, creating the crisis.

Attorney Sam’s Take On How Business Decisions Can Land You In Prison

Many people think that crimes done in the course of business, with the exception of obvious white collar crimes such as embezzlement, fraud and the like, are addressed in the civil justice arena.

They are.

But, these days, it does not necessarily end there.

These days we see more and more commercial entities being prosecuted for conduct which the government says is “indifferent to human life.” Even if this were not the trend, the idea of a murder charge based on said indifference is nothing new.

The classic example in a simple homicide case, where the defendant is an individual, is firing a gun blindly into someone’s window. The bullet kills someone.

Did the defendant mean to kill or injure that person? Assume there is nothing to indicate that. However, the very firing of the gun into the window demonstrates indifference to human life.

And that is a homicide.

So, in theory at least, it is the same thing.

Of course, there are other charges as well. Again, those charges are not so different from what they would be if the defendant was an individual.

The bottom line, folks, is that it is possible for business decisions and/or mistakes to turn into a criminal case.


To review the stories upon which this blog is based, please go to
http://www.bostonherald.com/news_opinion/local_coverage/2014/12/pharmacy_officials_face_racketeering_charges and http://www.cnn.com/2014/12/17/us/meningitis-outbreak-arrests/

December 16, 2014

GEORGETOWN POLICE EXECUTE SEARCH WARRANT AND FIND STOLEN ITEMS AND DRUGS

Did you know that Massachusetts law enforcement are allowed to arrest you for things they were not even looking for, but accidentally found while executing a search warrant?

The fact is, if the warrant allows them to be in a certain place, and they see something without violating the parameters of the warrant, it is fair game. Let's say police officers rang your doorbell, told you they were looking for little Johnny and showed you the proper paperwork to search your home for him.

You, a regular reader of this blog, of course, let the officers in and do not challenge the warrant. Instead, you quietly call an experienced criminal defense attorney to ask for advice. While you are doing that, the officers a looking around.

As they approach the living room, they happen to notice that the living room table has a scale on it, several small baggies and a mound of what appears to be marijuana. They have the right now to seize and inquire as to the weed.

They are also likely to arrest you for possession with intent to distribute that weed.

Even if they never find Johnny.

Just ask Nathan M. Caron, 22, Sheryl S. Savage, 63, and Kristine Jane Lynch, 30 (collectively, the "Defendants"). The authorities were investigating a rash of break-ins and thefts from various north shore communities. Their investigation led them to the home of the Defendants.

Armed with a search warrant.

Police say they found “rooms full of stolen property” believed to have been amassed from break-ins and thefts as well as an unspecified quantity of heroin while executing that search warrant.

The Defendants were arraigned at Haverhill District Court to answer to charges ranging from heroin possession to receiving stolen property.

Their home on Dummer Avenue was searched Friday, but Georgetown police said it took two days to inventory everything investigators removed from the property.

The goods include jewelry, power tools, electronics and tool cases bearing the names of contractors or residents believed to be victims of recent thefts or break-ins.

“Heroin is a problem in every community. It destroys lives and families and can have a devastating effect on neighborhoods. In Georgetown, we refuse to turn a blind eye to the problem, and we will continue to aggressively pursue those who allegedly attempt to manufacture and sell these poisons,” Police Chief Donald C. Cudmore said. “In this investigation, we see an unfortunate mixture of the sad results of the drug trade.”

Attorney Sam’s Take On What To Do When The Police Show Up At The Right Place And Right Time

Well, from our previous discussions, I am going to hope you know what not to do. For example, throwing yourself over the living room table and screaming, “Don’t look!” or shoving the officers in the other direction would be pretty bad ideas.

No, you are pretty much caught. However, you do not have to contribute to your own prosecution. For examples, if the officers turn to you and ask, “Hey, is this yours?”, you can rely on those handy Miranda Rights and explain you would rather have a lawyer present before you answer any questions.

“Isn’t there anything I can do when I see the inevitable happen?”

Yes! As soon as possible, contact your lawyer and ask for advice.

“But why bother? I mean, it’s a done deal, isn’t it? I’m caught! I am heading off to jail, aren’t I?”

Not necessarily. There are many issues involved here which you will need a lawyer’s help with. For example, what if the officers went beyond what was allowed in the warrant? What if the warrant itself is no good?

“That can happen?”

That can happen.

Every case is different and I cannot anticipate what the details will be when and if you are ever sharing a boat with the Defendants. However, I do know what to look for.

That’s what I do. It’s part of my job.

“What if the officer tells me that I don’t need an attorney?”

He or she may well tell you that.

Don’t listen.

It is often not terribly wise to take legal advice from the officer who is in the middle of slapping the Commonwealth Bracelets Of Shame on you and carting you away.



For the original story upon which this blog is based, please go to
http://www.bostonherald.com/news_opinion/local_coverage/2014/12/georgetown_cops_bust_trio_in_drug_burglary_probe

December 15, 2014

WHY LAW ENFORCEMENT MISCONDUCT PUTS YOU IN DANGER IN FEDERAL AND STATE COURTS

As any regular reader of this blog knows, the idea that law enforcement, including prosecutors, and the truth, go their separate ways at times is sad, but true.

One of the more often cited examples is contained in a dissent opinion of Chief Judge Alex Kolinsky of the United States Appeals Court for the 9th Circuit. It was in the federal matter of United States v. Olsen.

The issue was the turning over of Brady material to the defense. Brady material is material which the prosecution discoveres which is actually evidence which exculpates a criminal defendant. The law is clear that such material must be turned over to the defense post haste. This is because the prosecutor’s job is not simply to get a conviction…it is to do justice.

In Olsen, the issue had to do with a violation of the Brady rule, thus prejudicing the defense who went to trial without knowing about this exculpatory evidence.

Naturally, mistakes can happen. The problem is when these “mistakes” happen time and time again. In Olsen, Judge Kozinski began with, "There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it."

Kozinski indicated that "Protecting the constitutional rights of the accused was just not very high on this prosecutor's list of priorities. The fact that a constitutional mandate elicits less diligence from a government lawyer than one's daily errands signifies a systemic problem: Some prosecutors don't care about Brady because courts don't make them care."

We in Massachusetts have seen many instances of the years of federal court judges revealing Brady violations and other misleading conduct made by the Department of Justice.

Meanwhile, the rules relating to discovery in the federal criminal justice system enable the prosecution to keep vital discovery from the defense up until briefly before trial. Despite arguments by the defense bar that this makes it impossible to fully prepare to rebut a case that the government has long-since put together and tried to perfect in unfair.

Despite various violations of Brady and the like, these arguments have not persevered.

Attorney Sam's Take On Why This Matters To You

No, not every prosecutor is a liar. The same with police officers. When they lie, is it because they woke up one day with an insatiable urge to get you?

Of course not. Maybe they really “remember” it that way. Perhaps, as advocates, they have talked themselves into it.

It could be that they are simply basing their argument on untruths told to them.

Maybe they are covering their behinds…something that seems to be the golden rule in today’s criminal justice system.

It does not really matter to you, though, as to the why, does it? The fact is, either you or a loved one may be looking down the barrel of a multi-year sentence and are confronted with the seemingly impossible…proving a negative.

And, since law enforcement did not include you in their strategy and investigation, you do not really know what they are going to do next. Fortunately, you have retained the services of an experienced criminal defense attorney, but will that be enough?

“But, Sam, I told you that I never commit crimes”.

Yes, I remember. But if someone is willing to either testify to a lie or a mistake, how safe does that leave you?

“You mean someone would take the stand and lie?”

Happens all the time. Not only that, but even if you feel the case against you would have to be very weak (given its untruth), do you really want to be floating around the criminal justice system long enough to prove your point?

“What do you mean 'long enough'

Unlike the one hour legal dramas or documentaries you see on TV, REAL criminal matters often are pending for about a year or more. There is a lot to do…including trying to discovery the government’s case against you.

In the meantime, as discussed many times, you are in jeopardy of losing your job, your home, your family, etc.

This is why these stories matter to you. This is why, under the most selfish of reasons, the integrity of your criminal justice system matters to you.

You feel you would never commit a crime? Ok, then, wouldn’t it be nice if your innocence actually mattered?

In terms of Brady material, if there was evidence which tended to show that you were actually innocent…wouldn’t it be dandy if you and your lawyer actually knew about it and could use it to gain your freedom?

Just Sayin’…!

For the full story upon which this blog is based, please go to: http://www.huffingtonpost.com/2013/12/11/blistering-9th-circuit-di_n_4426802.html

December 12, 2014

ANOTHER FEDERAL PROSECUTOR IS FOUND TO BE LYING BY THE FEDERAL COURT

Over the years, this blog has discussed various instances in which there is little doubt as to whether prosecutors sometimes stretch, or “re-invent” the truth. This has been the case both in state and federal courts.

At a time during which we have had to question the integrity of law enforcement involving the killing of citizens and mysterious grand jury proceedings, a new story comes up that is worth remembering.

It deals with the integrity of a federal prosecutor…someone most of us would expect to be as “holier than thou” as they often act.

This one apparentlywasn’t.

The scene was a New York United States District Court. It was December 5th. It was the courtroom of Senior U.S. District Court Judge Kevin Thomas Duffy.

And the court was angry. He was angry because of lying and abuses by our “now ironically named Department of Justice.”

The court began by musing about the front hall of the Department of justice which has an engraving reflecting that the job of the Justice Department is to see that justice is done.

“Justice is founded in truth”, explained Judge Duffy. “ Most of the time the judges of this court depend upon the United States Attorney’s Office to tell the truth. I have caught you in a flat out lie. .. I would prefer henceforth that you advise your superiors that you are not to come to this court alone; you are to come with supervision. If you don’t mind lying, then the whole office is going to pay for it. I have made known to the other judges of this court my findings in connection with you sir.”

According to Wikipedia, Judge Duffy is a native New Yorker and Fordham graduate. He is a former Assistant United States Attorney himself, who served as Assistant Criminal Division Chief of the Southern District. When he was named to the federal bench in 1972, he was the youngest federal judge in the country.

As Judge Duffy perfectly indicated, “It is to the benefit of the people of the United States to have justice done—not just another scalp on the wall…The job is to find justice—not just get another press release.”

This was but one federal criminal case in New York. We in Massachusetts have seen instances of prosecutors being caught in lies and unethical behavior not so long ago.

I have seen such behavior in the states of New York and Massachusetts, state and federal cases. It happens…although most of the citizenry choose not to believe it. We are told to trust law enforcement, from the police officer on the beat to the prosecutor in the court.

The most fear-inspiring thing that I see is that our laws and the carrying out of those laws are often created giving law enforcement a great benefit of the doubt. After all, they are the “good guys”.

But, reality is not so simple.

Sidney Powell worked in the Department of Justice for 10 years. She was lead counsel in more than 500 federal appeals and is the author of Licensed to Lie: Exposing Corruption in the Department of Justice.

She explains, “ Like most of the good, hard-working, tax-paying citizens of this country, federal judges are fed up with the lies, prosecutorial abuses, destruction of evidence, lame excuses, and assorted prevarications by representatives of our government. There seems to be a much-welcomed, increasing realization of the old reality that government employees are supposed to be public servants—and follow the law themselves.”

There is a call, which I cannot help but endorse, for judges to accept this reality and put a stop to it…in the name of Justice.

Attorney Sam's Take On What Lying Law Enforcement Officers Means To You

“Sam, I am a hard working and honest family man. I do not commit crimes. I am not going to be noticed by any prosecutors. Why do I care that prosecutors mislead judges sometimes to convict the guilty?”

Well, it is hard to imagine that anyone’s view is still that illogical…

“Why ‘illogical?”

Because, as we have discussed many times, it does not take very much to be accused of a crime these days. Frankly, it does not even take committing a crime.

Let’s continue our sojourn into the criminal justice system and why you are at risk. We will do that next blog.

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

For the full story upon which this blog is based, please go to: http://observer.com/2014/12/federal-judge-blasts-yet-another-federal-prosecutor-for-lying-to-the-court/#ixzz3Lc9H8Czs

December 5, 2014

POLICE MISCONDUCT, "HOW CAN I BE SURE THAT LAW ENFORCEMENT WILL NOT KILL ME IF I AM A SUSPECT?"

There is much to be said about race relations, police officers and grand juries… not to mention the interaction of the three. However, let's deal with the facts as they exist today.

We know that there are times when the police interact with someone and things
get out of hand. Sometimes, someone is badly injured or killed. Usually, that is not the police officer. If the person is not actually killed, that person will face very serious charges even if the original allegations against him or her where relatively minor.

In the event that the suspect is killed, there will likely be a police investigation. There may or may not be a grand jury presentation. Either way, the officer will most likely not be prosecuted.

These are the facts that we have discussed time and time again. The only difference in the last couple of weeks is that we have seen them played out on a national stage. Again.

Now, why is it critical that you understand these facts?


Attorney Sam's Take On Rough Interaction With Law-Enforcement

Generally, when Law enforcement comes up to approach you, the officer is not coming to simply wish you a "good day". You are most likely either a witness, suspected witness or a criminal suspect.

Let's assume that you are either a suspect in a case the officer is investigating or just a suspect in general as someone who probably commits crimes although not necessarily the one being investigated.

"You mean because of my skin color?"

Clearly, that may be a part of it. Perhaps your looks fit in with a description of the suspect. Perhaps it is because there is alot of black on black crime either being committed in the area or the officers believe is being committed in the area. Assuming that the officer does not know you, the officer does know that he or she must remain in control of the interaction with you. Otherwise, the officer fears, something bad will happen. Something violent will happen. Now, is that because of your race? As I indicated, because of racial stereotypes, it may well be. It may also be the way you are dressed. It is likely many things.

Obviously, the more serious the crime being investigated, the more the officer is on alert and is sensitive to any challenge of losing control of the situation.

It is important to realize, and I base this on experience, that the officer probably did not wake up that morning or evening with the desire to engage in a violent scene with you or anyone else. He or she is hoping to return home at the end of the tour with no one having been seriously injured or killed in a matter involving him or her.

However, being killed or having to kill is a part of the daily reality that officers deal with. Add that to the fact that many people do not trust and actually fear police officers in general and you can imagine the hostile environment an officer may feel he is in.

So the officer is on extra alert.

The law gives certain allowances to law-enforcement in terms of benefits of the doubt. That is why a police officer is generally not going tube prosecuted for roughing you up. You, however, will be prosecuted should you engage in the same, or less, assaultive behavior with that officer or anybody else.

We can debate whether or not that's fair. But not today.

Under the law, an officer has the right to take all reasonable steps to safeguard his safety as well as the safety o those around him.it does not matter whether we are talking about an encounter on the street, in a car stop or at home. The officer has the legal right to make sure that he and those around him are as safe as possible.

In a number of the matters we have been discussing lately, the suspect had what could be could considered a dangerous or deadly weapon.

Clearly, this will raise the nerve endings on the neck of law enforcement.

So…what do you do?

You may not be able to control the officer’s behavior, but you must be able to control your own. Forget that the officer is the professional. Forget that the officer has certain guidelines he must follow or else evidence gets suppressed. Forget whether or not you feel that you have done anything wrong.

If you want to be sure to leave this confrontation in one piece, you have to make sure that you are the one who keeps his cool. That means remembering that you do not want to do anything that can even remotely be considered confrontational.

If the officer tells you to put your hands up, then, no matter what, put your hands up.

If the officer tells you to get on the ground, then, no matter what, get on the ground.

If the officer tells you to get out of the car, then, no matter what, get out of the car.

You can legally challenge the commands later...in court.

“But what if obeying the officer will lead to revealing some illegal material I have with me?”

Better to have the officer find that material than to have that officer find that material and face worse penalties than you would have ordinarily faced. These days, that penalty clearly can include death.

“Isn’t there a limit to this? I thought I had certain rights!”

There are and you do. Other than who you are, you do not have to make a statement when being interrogated by the police. You do not have to consent to an automobile or home search unless there is a valid warrant. You do not have to agree to do field sobriety tests or a breathalyzer.

Please note what this means and does not mean.

It does not mean that you can run away or assault the officer. You cannot threaten the officer. Ignoring the officer’s commands and giving a few of your own to the officer is also not a good idea.

You want to be as polite and non-confrontational as possible. The officer must know that you are not questioning his authority and that you will not put up a fight.

…and, if the officer wants to go further with you, tell him you want an attorney to discuss your rights with you.

“What if the officer starts telling me what the extent of my rights are?”

Then, politely, you explain that, with all due respect, I really think I should discuss this situation with her.

It’s that simple.

Now, go have a great, safe and law-abiding weekend!

To see a video which makes this point in a more jocular vein, please go to
https://www.youtube.com/watch?v=igQDvYOt_iA

December 5, 2014

MORE ARRESTED LAST NIGHT DURING ROUND TWO IN BOSTON PROTESTS OVER RECENT POLICE KILLINGS.

Last night, we saw Round Two of Boston protests regarding what seems to be a rash of what we have been discussing over the past few blogs. Namely, instances of police killing citizens and, seemingly, nothing happening about it.

Allegations of homicide abound.

But not charged.

In at least two of these cases, grand juries, which are entities pretty much controlled by prosecutors, have found that there is not even probable cause to issue charges against the officers involved. This is despite various conflicting testimony and even videotapes of the event.

Last night, crowds were largely peaceful, and initial reports suggested few arrests even as masses of people blocked streets and highways staging “mass die-ins”.

“I’ve been catching a lot of feelings out here,” said demonstrator Kwaku Abankroh, 23, of Boston, who was in the crowd at North Station. “It resonates a lot more when you see all different types of people, black people, white people, all races, all sexualities, from the poorest of the poor to the richest of the rich. ... Hopefully they’ll bring this message back to their peers and start challenging them and their ideas and maybe people will start to think about things differently.”

It marked the second time in a week that protesters have taken to the streets. About 50 people were arrested on November 25th as they tried to shut down several highway ramps but were blocked by police.

Last night’s demonstrations began with several hundred protesters who targeted the Christmas tree lighting on Boston Common, where families with children had gathered for a holiday celebration.

“I’ve got a 12-year-old son,” Peter Akra, 32 , of Boston, said on Boylston Street, just before the tree ceremony. “He could have easily been Trayvon Martin or Michael Brown. I’m here for him in the future. It’s not even about racism, it’s about human rights.”

Moving up from the tree ceremony near Park Street Station, marchers got through an open gate at the State House, and had a shoving match with troopers as they tried to shut the gate to stop more protesters from getting in. What state police described as a “very small number of arrests” took place there as the troopers caught protesters on the grounds.

Other protesters, by then numbering several thousand and chanting “Hands up, don’t shoot,” stretched in a long snaking line from the State House down Beacon Hill to Bowdoin and Cambridge streets, apparently headed toward City Hall Plaza.

Blocked by police from going any farther down Bowdoin, hundreds laid in the intersection and staged a so-called “die-in,” chanting, “Black lives matter!”

Working their way around police, the protesters arrived on City Hall Plaza and spilled down onto Congress Street. Police began blocking ramps to the Central Artery as the protesters moved toward them. At Haymarket, groups of protesters split up to move on North Station and South Station.

Masses of protesters flowed through the streets around North Station and blocked streets heading to Storrow Drive and Charlestown. Another crowd headed toward South Station, where police were blocking ramps. But some protesters got on the Massachusetts Turnpike and briefly blocked it near Exit 24.

Several people were arrested near North Station where they tried to get onto Interstate 93.

There is cause for these protesters’ concerns when it comes to police-involved homicides.

A recent Houston Chronicle investigation found that “police have been nearly immune from criminal charges in shootings” in Houston and other large cities in recent years. In Harris County, Texas, for example, grand juries haven’t indicted a Houston police officer since 2004; in Dallas, grand juries reviewed 81 shootings between 2008 and 2012 and returned just one indictment. Separate research by Bowling Green State University criminologist Philip Stinson has found that officers are rarely charged in on-duty killings, although it didn’t look at grand jury indictments specifically.

Attorney Sam’s Take On The Bottom Line To You

There is a great deal left to say on this subject, but we are going to change our perspective a bit. Some folks say that my treatment of this subject has been that of an opinion piece. That may be true. I have a lot of opinions on this subject. I have a lot of experience with it as well.

But, let’s leave those thoughts for another day. What is true is that that this blog is to bring you information about the criminal justice system that is of value, if not a warning, to you.

So, the point is, assuming you are not interested in these protests here and beyond and are not terribly interested in deaths from other states which are not even in Massachusetts…what message is here for you?

And I must tell you...there is a warning here for each and every one of you.

In my next posting (coming very shortly today), we will conclude this subject matter with an answer to that question.


For the original stories upon which this blog is based, please go to
http://fivethirtyeight.com/datalab/ferguson-michael-brown-indictment-darren-wilson/, http://www.huffingtonpost.com/2014/12/03/eric-garner_n_6263656.html , http://www.bostonherald.com/news_opinion/local_coverage/2014/12/cop_chokehold_case_sparks_2nd_round_of_boston_protests and http://rt.com/usa/160528-salinas-cop-fatal-shooting/

December 4, 2014

PROTESTERS REACT TO ADDITIONAL ALLEGED HOMICIDES BY POLICE OFFICERS BEFORE AND AFTER FERGUSON (PART THREE)

We have been discussing the Ferguson matter in which an unarmed young black man was fired upon (multiple times) by a police officer. The young man died from the wounds and many are saying that the officer committed a homicide. Despite the fact that testimony presented to the grand jury told different tales ranging from a description of a cold blooded murder to a shooting in valid self-defense, the grand jury found that there was no probable cause to believe that the officer should be formally charged with a crime. Any crime.

I am hoping that I am not insulting your intelligence by suggesting to you that allegations of police excessive, sometimes deadly, force is not terrible unusual. Usually, the officer or officers involved are not prosecuted.

Take the small central California city of Salinas, for example. Within a period of 11 days, two such incidents recently happened.

In one case, there had been a report that a man burglarized a home, had tried to kill a dog and had exposed himself. Incidently, in case you are not sure, there is no death penalty available for these particular alleged crimes.

When officers found the suspect, he was apparently carrying gardening sheers. At first, the man would not respond to officers who were shouting orders to him. Then, a conversation ensured and police say that he began to attack the officers with the shears. Officers fired and the suspect was dead.

Officers have indicated that they were in fear and that they had tried to use a Taser, but it did not work.

Salinas police Commander Vince Maiorana explains that, "There's some split-second decisions that have to be made by the officer...When the officer commanded this individual to drop the shears and to get down on the ground, this individual actually attacked the officer with the gardening shears." Witnesses, including the 19-year-old college student who captured the video footage of the shooting — disagree.

There is a video of this incident, by the way, online if you want to see it. Check out one of the links below.

Meanwhile, this had been the second such incident in the area in a short span of time.

Just over a week prior, Salinas officers fatally shot 26-year-old lettuce farmer Osman Hernandez outside of a grocery store only one mile away from the scene of the above-mentioned location after he reportedly was chasing shoppers with a knife. Reports have since suggested Hernandez was drinking heavily at a nearby bar for two hours before the incident.

According to the man’s family, at least one of the shots fired by law enforcement after the police arrived hit Hernandez in the head while he was lying on the ground.

“They killed Osman like a dog as he lay on the ground. Why are we to trust them investigating themselves? Why does it take so many bullets to the head to subdue a man who is already lying on the ground? Osman’s life had value. We want the truth,” a spokesperson for the man’s family told reporters earlier this month.

KSBW added that the one eyewitness told the network that Hernandez was on the ground and stunned from the Taser when police fired no fewer than four shots. .

And then, only yesterday, this time in New York, a grand jury refused to indict another police officer who was said to have killed a black man, Eric Garner, who died after being placed in a chokehold.

Once again, the screams of outrage from Ferguson, Boston and other states have started again…or, simply, continued.

Mr. Garner, 43, was being arrested for selling untaxed cigarettes. In a video of the arrest, which has since gone viral, Garner screams “I can’t breathe!” multiple times until his body goes limp. A medical examiner later said that he died of a chokehold, a move that is banned by the NYPD, and ruled his death a homicide.

The officer said in a statement that he regretted Garner’s death. He said, “I became a police officer to help people and to protect those who can’t protect themselves…It is never my intention to harm anyone and I feel very bad about the death of Mr. Garner. My family and I include him and his family in our prayers and I hope that they will accept my personal condolences for their loss.”

New York City Mayor Bill de Blasio called Garner's death "a terrible tragedy that no family should have to endure," and said he would continue to work to decrease the use of excessive force among officers.

"This is a subject that is never far from my family’s minds – or our hearts," he said. "And Eric Garner’s death put a spotlight on police-community relations and civil rights – some of most critical issues our nation faces today."

Civil rights leader Al Sharpton told The New York Times Wednesday that he had spoken with the Garner family and they were not surprised by the announcement. He also said that before the grand jury had reached its decision, he had met with federal prosecutors to ask them to take over the case.

Attorney Sam’s Take On History Repeating Itself

Of course, it would be folly to suggest that any of this is new.

Not so long ago, a quasi-police officer shot and killed a young black man in Florida; he was acquitted at trial.

It is reminiscent for me to see Al Sharpton’s entry into the current issue. You see, as a prosecutor in New York, my introduction to such incidents took place after a jury verdict about the killing of a black youth in Howard Beach in Queens. It kicked off the first “Day Of Outrage” for new York.

Al Sharpton’s involvement and that protest, along with others, taught me a striking lesson on how these matters are often handled…by the office of the District Attorney.

Stay tuned for my next blog…this evening.


For the original stories upon which this blog is based, please go to
http://fivethirtyeight.com/datalab/ferguson-michael-brown-indictment-darren-wilson/ , http://www.huffingtonpost.com/2014/12/03/eric-garner_n_6263656.html and http://rt.com/usa/160528-salinas-cop-fatal-shooting/

November 29, 2014

PROTESTORS ARE ARRESTED FOR DENOUNCING APPARENT CORRUPTION AND IN FERGUSON HOMICIDE (PART TWO)

Former New York state Chief Judge Sol Wachtler famously remarked that a prosecutor could persuade a grand jury to “indict a ham sandwich.” Raw data, as well as the experiences of those regularly involved with the criminal justice system can attest to this. According to the Bureau of Justice Statistics, U.S. attorneys prosecuted 162,000 federal cases in 2010, the most recent year for which we have data. Grand juries declined to return an indictment in 11 of them.

“If the prosecutor wants an indictment and doesn’t get one, something has gone horribly wrong,” adds Andrew D. Leipold, a University of Illinois law professor who has written critically about grand juries. “It just doesn’t happen.”

Cases involving police shootings, however, appear to be an exception. It would appear, at least from media accounts, that grand juries frequently decline to indict law-enforcement officials.

Especially given a certain amount of mistrust many have toward law enforcement, why would that be?

One place to look is the source of the information a grand jury is given.

The source of information presented to the grand jury is from the same agency which deals with police officers professionally every single day of the year. Every year. It is a symbiotic relationship also. It is supposed to be, at least.

It is the office of the prosecutor.

The ally in investigations through trials of the prosecutor is the police officer. Any defense attorney can tell you how cozy the prosecutor and the police officer seem to be. Each seems to be watching the other’s back.

As a former prosecutor, I can tell you that it seldom seems as if the two entities are not on the same side.

And, again, the entity controlling the grand jury presentment is that same prosecutor’s office. The investigators gathering the evidence for the presentment?

Police officers.

The witnesses used to present the evidence?

Generally…police officers.

Sometimes, however, as was the case in the Ferguson matter, citizens are brought in before the grand jury to testify.

Whoever the witnesses turn out to be, though, it is the prosecutor who presents the evidence and becomes the grand jurors’ legal advisor.

Attorney Sam’s Take On Corruption And Conspiracies In The Grand Jury

To say that racism no longer exists in this country on any level would be to mistake fantasy for reality. On the other hand, we seem to have made great improvements in most of our reactions to race as well as other differences between us.

Both truths co-exist and neither makes the other disappear.

A natural question which comes from the decision of the Ferguson grand jury is the question of control. Who controlled the grand jurors. Who is actually responsible for the decision they made?

As discussed yesterday, prosecutors control what evidence a grand jury sees and hears. However, the prosecutor does not control the grand jurors’ minds. Nor does the prosecutor make the final decision for them. The fact that a prosecutor may give one-directional information to them or exude vibe of his or her own does not take away from the fact that it is the grand jurors who make the decision.

“But, Sam, isn’t there any way to know what the prosecutor tells them?”

Sure. The presentation is taken down word for word and ends up in a transcript. In fact, much of the transcriptions of the presentation in this case have been released by the prosecutor for this very reason.

“Couldn’t the transcript be falsified or things left out ? Couldn’t the prosecutors tell the grand jurors in between witnesses what to do?”

It is possible. Just like it is possible that the prosecutor could have brandished an Uzi, pointed it at the jurors and told them to vote a certain way or they would die between the witnesses.

Physically possible? Yes. Realistic? No.

“How do you know? Were you there?”

No. But I have dealt with cases like this on both sides. I have made many grand jury presentments. I have represented witnesses in grand jury presentments. I have not only never witnessed such intentional behavior, I have never even heard of it being done. The fact is that anyone trying something like that would be not only putting their career on the line, but also, most likely, their freedom.

Further, can you imagine the conspiracy necessary involving all sorts of people within and without of the system for such things to be possible? Especially in such a high profile case?

It is also worth noting that things would have been much easier for the state if Officer Wilson had been indicted. No protests. No suspicion. No allegations of racism.

“Speaking of racism, you referred yesterday to the claims that the No True Bill (vote for no indictment) is not a message that the grand jury and/or law enforcement feel that the life of a black man is not worth prosecuting about. Yet, you do seem to indicate that racism is involved.”

I think so, yes.

“Can you explain that?”

Sure I can.

In my next blog.


For the original stories upon which this blog is based, please go to
http://fivethirtyeight.com/datalab/ferguson-michael-brown-indictment-darren-wilson/ , http://www.npr.org/blogs/thetwo-way/2014/11/25/366507379/ferguson-docs-how-the-grand-jury-reached-a-decision and http://www.cnn.com/2014/11/10/us/ferguson-michael-brown-shooting/

November 28, 2014

ARRESTED PROTESTORS PONDER MURDER, PROBABLE CAUSE AND FERGUSON (PART ONE)

Here is hoping you had a great Thanksgiving. Here’s hoping you enjoy “Black Friday”. And here is a story that contains nothing for you to enjoy or be happy about.

As you no doubt have heard from various sources, the grand jury in Ferguson, Mo., has returned its decision regarding the death of the late18-year-old Michael Brown and the allegations against Police Officer Darren Wilson. You have no doubt also heard about the aftermath which included protests in various locations including Ferguson and Boston.

The Boston Criminal Lawyer Blog has certain insights into these events that you may not have realized. Some of them are from knowledge of the criminal justice system. Some are from my experience of so many years as a criminal defense attorney.

Some are directly from my time as an assistant district attorney in Brooklyn, New York.

Sorry, this is not going to be a one-parter. Some issues are simply too complicated and important to our survival as a society to give pithy, simple answers.

"The duty of the grand jury is to separate fact and fiction," the prosecuting attorney, Robert McCulloch, said in a televised address Monday night. He was announcing that, after weighing the evidence of the shooting, the grand jury decided that Officer Wilson had acted within the limits of the lethal-force law. After doing so, it decided that there was not enough probable cause to indict Officer Wilson.

For anything. Not murder, manslaughter or even simple assault and battery.

In a rare move and in an attempt to allay concerns about bias, McCulloch made public the mountain of evidence presented to the grand jury. This is particularly unusual because grand jury proceedings are supposed to be secret…at least until the decision is made. Then, materials are generally given only to the participants of the criminal case. On the other hand, there was a great deal of fear of an uprising of sorts long before the grand jury’s decision was announced.

In fact, as the days leading up to the announcement went by, I could not help notice what almost seemed to be a goading by the powers that be, already threatening what would happen if there were violent protests. These very public warnings apparently had an effect even on the law-abiding in Ferguson. Apparently, gun sales, as well as barriers around stores, were up in force.

It was almost as if everyone knew what the decision would be long before it was announced by the prosecutor.

By the way, the fact that the decision was announced Monday night does not necessarily mean that the actual final vote took place Monday night. Nor does it mean that the prosecutor and the rest of law enforcement did not know the decision well before Monday night.

Interestingly, the timing of when law enforcement learned of the decision is a bit more difficult to find.

But, I suppose, I digress.

Various witnesses testified before the grand jury and many documents and reports (including three autopsy reports) were introduced into evidence. The presentation took quite a while to complete. Longer perhaps than many trials which is interesting given that there are no judges or defense attorneys in the room.

Only the witnesses, grand jurors and prosecutors. The type of environment which gives rise to the truism that, in general, “a prosecutor could lead a grand jury to indict a ham sandwich.”

Part of what has been revealed is that witness testimony was far from the same. One of the main issues was whether Brown was charging at Wilson, surrendering or running away. Even first-hand eyewitnesses could not all agree.

Attorney Sam’s Take On The Myth Of Probable Cause

“Gee, Sam, you make it sound like the case was full of reasonable doubt.”

Could have been, although we will never know now. However, reasonable doubt is for criminal trials. This proceeding was before the grand jury. The only burden of proof in the grand jury, at least in the states in which I have practiced or witnessed, is that of probable cause.

Probable cause is undeniably a much lesser standard than reasonable doubt…or even that which is the test of fair preponderance of the evidence as in other types of proceedings.

“You mean probable cause like what a police officer needs to arrest?”

Yes, but there is an even more telling example…one which defense attorneys deal with all the time. We have discussed it in these postings in fact. The Clerk Magistrate’s Hearing.

Although it does not always end with the same technical results, the test is generally whether or not the complainant (or law enforcement officer making the allegations) makes out all the elements of the crime to be charged. If the elements are made (regardless of the test of credibility), there is probable cause to issue the criminal complaint.

In the grand jury setting, the test is probable cause to issue the indictment.

It is not the search for guilt or innocence. It is the search to determine if there is enough to bring the accused into the system to find out if guilt can be proven beyond a reasonable doubt.

In other words, the burden is so low that it is a question of whether a court should even burden a suspect to put it to the test.

In the case of young Mr. Brown and Police Officer Wilson, that answer was “No”.

Seems pretty startling, doesn’t it, given that there is no question whatsoever as to whether Officer Wilson shot and killed the late Mr. Brown?

“Well, that is because the defense is self defense, right?”

Sure. But self defense is, as you say, a defense. Generally, a defense is presented at a trial.

“Are all jurisdictions the same regarding that?”

Actually, no. Some have certain procedures which allow the defense to be made in the grand jury. Even assuming that to be the case in Ferguson, however, there seems to have been just as much testimony that contradicting as supporting the theory of self defense.

In cases of “he said” vs. “he said”, it is difficult to imagine how probable cause does not exist.

“So, what are you saying, Sam? That it was another clear cut case of a white racist system deciding that it is not worth thinking about the death of a young black man?”

No, I am not saying that at all. Nor do I believe that. The situation is far more complicated than that. If cooler heads prevailed, then protesters could not be rioting and law enforcement would not be arresting folks who are exercising their Constitutional Rights to peacefully protest.

Those who think that the only colors involved in this matter are black and white are woefully incorrect.

They are forgetting the color blue.

I will follow up on this topic in my next posting this weekend.

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


For the original story upon which this blog is based, please go to
http://www.npr.org/blogs/thetwo-way/2014/11/25/366507379/ferguson-docs-how-the-grand-jury-reached-a-decision and http://www.cnn.com/2014/11/10/us/ferguson-michael-brown-shooting/

November 26, 2014

TWO BOSTON MEN ARE ARRESTED AT LOGAN AIRPORT FOR CRIMES OF ASSAULT, ATTEMPTED MURDER AND KIDNAPPING

Boston police had a busy half-hour this past Saturday morning at Logan Airport.

Law enforcement first responded to a report of a person screaming inside a car with a broken windshield around 11:23 a.m. near Terminal E. They wound up finding the car near Terminal B. Inside were 52-year-old Anton Hilton of Roxbury. Anton was driving. The passenger was a 21-year-old female.

The passenger told the officers that Anton had assaulted her. They charged Anton with assault and battery and kidnapping.

Perhaps they figured their day was done. It wasn’t.

Within a 30-minute period, a naked man fell through the ceiling of a woman’s bathroom in the airport. Allegedly.

The Commonwealth alleges that 26-year-old Cameron Shenk of Boston had entered the female restroom, stripped nude and climbed into the “drop ceiling”.

The spot was aptly named.

They say that Cameron dropped through the ceiling and landed on the bathroom floor, receiving “numerous cuts to his head and body”. At that point, Cameron is said to have exited the ladies room and proceeded to attack an 84-year-old man for no apparent reason.

The man was hospitalized with serious but non-life threatening injuries.

A state police officer was also treated for minor injuries in the scuffle to arrest Cameron, who ended up with several crimnal charges.

The charges include attempted murder, mayhem, assault and battery on a person over 60, assault and battery on a police officer, lewd and lascivious act and malicious destruction to property over $250.

Both Cameron and Anton were arranged Monday in East Boston District Court.

Attorney Sam's Take On Kidnapping And Attempted Murder

These two recent guests of the Commonwealth invite a look at a couple of often misunderstood criminal charges.

"Yes, Sam. It says the first guy was charged with kidnapping. How? There is nothing to indicate that he brought the female anywhere against her will."

Well, first of all, remember that often news stories do not contain the complete picture. Nevertheless, this brings up an interesting point. A suspect does not have to transport someone somewhere against their well in order to be charged with kidnapping.

For example, let's say that you and I are in my office. You have come to my office willingly to talk about a legal problem. At some point, you tell me that you have decided that you want to leave and talk to other attorneys. I, however, stand up, walk over and block the door and tell you that you're not going anywhere. I am physically blocking your way and communicating to you that should you try to move me and open the door, I will inflict bodily harm.

I can be charged with kidnapping.

I have forcibly restrained you in my office, a place where you do not wish to be.

I hasten to add that I, of course, would never do this… but I digress.

Another crime that is often misunderstood is that of attempted murder.

Most people assume that in order for an assault to turn into an attempted murder, there has to be something deadly used. For example, people think in terms of an attack with a knife or a gun or a hammer. Something.

That is not the case. And assault with an item other than your body, generally associated with murder or not, is assault with a deadly weapon.

I have found that the Commonwealth is fairly anxious to add the extra words "Intent to murder" if the attack as a realistic possibility of causing serious injury or death. I have handled a number Cases where it seemed to me that the only way the particular salt could end up in death was if someone, likely on the other side of the street, happen to be walking by turned and shot the person who was struck byI suspect.

In this case, there does not seem to be any weapon used, but the complainant attacked was over the age of 60. Because of his age, and perhaps the likely "Out-of-control" nature of the assault, the Commonwealth decided to assume that the sauce could have ended up in the man's death. Of course, the man was apparently also hospitalized, so this was clearly not a non-serious attack.

An actual specific intent to kill someone is not necessary for this judge. Likely, Cameron was simply in a panic trying to get away and the "elderly man" was in the wrong place and wrong time. However, we look at the actions in such a case. even if Cameron did not intend to actually kill the person, he was reckless and indifferent to the likely result of the attack to the extent that the law equates it toan intent to kill

On another note, a person under the statute is considered to be "elderly" when they are older than 60 years old.

Being 55 years of age myself, I resent that. But that's another story.

Speaking of other stories, in my next posting we will discuss one of this weeks major news stories which is not yet completely finished.

Next we tackle the grand jury action, or in action, in Ferguson and the reaction to it here in Massachusetts.

For the full stories upon which this blog is based, please go to: http://www.bostonherald.com/news_opinion/local_coverage/2014/11/boston_man_still_in_hospital_after_naked_fall , http://www.foxnews.com/us/2014/11/23/police-naked-man-crashes-through-ceiling-at-logan-airport-restroom-then-attacks/ and http://www.boston.com/news/local/massachusetts/2014/11/22/minutes-kidnapping-nudity-and-attempted-murder-logan-airport/KwCvzrNKq5Afnf9RR9ND6I/story.html

November 21, 2014

BOURNE GENTLEMAN IS ARRESTED FOR ASSAULT, WEAPONS AND DRUG CHARGES

Ever have one of "those days"?

Michael Barboza, 33, of Bourne (hereinafter, the "Defendant") sure did.

It was one week ago today. The Defendant , just kept losing things.

First it was his temper.

He was allegedly involved in a road rage incident.

To start.

According to court documents, officers arrived to find a man standing next to a Volvo parked in the middle of the street who was speaking on a cellphone. Police say that the man had a bloody lip and red marks around his neck. When the man saw the officers, he is said to have yelled to them that “he just went into the house and he has a gun.”

The Defendant is said to have then come sprinting out of a nearby front door, running toward one of the police officers.

Court documents reflect that the officer drew his firearm and ordered the Defendant to the ground at gunpoint. In court documents, Ptl. Lucier said he drew his firearm and ordered Mr. Barboza to the ground at gunpoint. The Defendant apparently complied and was promptly arrested.

Loss Number Two – his liberty.

While handcuffing the Defendant, officers asked him where the gun was. He allegedly replied that he had a license to carry, and that the gun was inside the house.

Officers then questioned the man next to the Volvo about what had happened.

They were told that he had been driving north on State Road when a black pickup truck in front of him began to make a wide sweeping left turn so as to leave State Road and head onto Route 3. He said that he began to go around the truck when the vehicle swerved back into the northbound lane on State Road and blocked him in. He then said the Defendant then ran up to the his driver-side window and began to scream at him.

The man said he told the Defendant to get away from him or that he would have to protect himself. The Defendant allegedly continued screaming at him.

The man admitted that he then exited the Volvo and got into a physical fight with the Defendant.

The man claimed that he somehow got back into his car to call 911 and the Defendant went to his apparent property, returned with a metal rake and proceeded to smash the Volvo’s windshield.

Having apparently decided that the rake was not enough to send the appropriate message, the man said that the Defendant went back home with the rake and came back out with a silver semi-automatic pistol and pointed it at him. The man said that police then arrived at the scene.

According to court documents, officers proceeded to approach the house. They yelled for anyone inside to come out.

No response…at least audibly. The officers say that they did, however, receive an olfactory message. They received the very strong smell of marijuana.

The police proceeded to apply for and obtain warrants to search the house for the handgun, rake and marijuana. Upon executing the warrant, they say they found a silver KAHR Arms 9-millimeter pistol and a metal rake.

They said they also discovered an extremely extensive marijuana “grow house” operation. They said that the house’s interior had been modified to accommodate the cultivation of marijuana plants, and that more modifications were underway.

Hence Loss Number Three – gun, rake and weed.

Allegedly.

By the end of the day, the Defendant had gained criminal charges comprising of two counts of assault with a dangerous weapon (a gun and a rake), assault and battery, malicious destruction of property greater than $250, disorderly conduct, possession of Class C and D drugs with intent to distribute, and the cultivation of marijuana.

On Monday, he was arraigned in Bourn District Court, pleaded not guilty and was released on $10,000 cash bail.


Attorney Sam's Take On How A Little Loss Of Temper Can Lead To A Criminal Justice Downfall


I hasten to point out that the Defendant, although facing a great many types of criminal charges is innocent unless and until proven guilty.

“Isn’t that kind of a joke in this case, Sam? I mean take the assault and weapons charges for example. The evidence seems pretty clear-cut.”

Well, let’s think about that. Most of the evidence about the event came from the gentleman immediately considered by the Commonwealth to be the “victim”. Of course, even by his own description, he should be charged with assault and battery.

“What?!?!?”

The law in Massachusetts is pretty clear when it comes to assault and battery and I can tell you that said laws are prosecuted regurally. A person has the duty to try to retreat from the situation…not escalate the situation. This is particularly the case when the person has a cell phone through which he can call for help.

According to the “victim”, he hopped out of his vehicle to engage in physical combat with the Defendant instead of trying to escape or call for help.

“What about the destruction of property, the rake and the gun use?”

Of course, all that took place after he left his vehilcle to engage in a physical fight. Further, as far as we know so far, the only description of how the damage took place or use of the rake and gun is from the “victim”.

What if he is not telling the truth?

“Why wouldn't he be telling the truth?”

I don’t know. To avoid getting into trouble himself? After all, it is becoming better and better known that one of the best ways to avoid an arrest is to talk to the police first and become the “victim”.

“So how did he know about the rake and gun?”

Do we know that he did not know the Defendant and know he had a legal gun?

That’s right…legal gun. Assuming the Defendant had a valid license which he seems to have had given he is not charged with possession.

“What about the near attack on the officer?”

Sorry…I must have missed that. Oh, you mean when the Defendant came out of his home and was heading to the officer? One would imagine anyone would do that if they had nothing to hide and wanted to give their side of the story.

Of course, he did not get to give that side of the story, did he? The officer had him down on the ground and cuffed before he even got the chance.

Of course, he did comply right away, didn’t he?

“What about the drugs?”

Well, I must remind you that this is a blog…not a book. I cannot debate the whole case at this point. However, two parting remarks:

1. Don’t always jump to conclusions simply because that is the first spin you are given;

and

2. Have a great, safe and law-abiding weekend!


For the full story upon which this blog is based, please go to: http://www.boston.com/news/local/massachusetts/2014/11/15/road-rage-bourne-leads-discovery-marijuana-growhouse/s5kqYY7UDF8CN0hRTZpmBP/story.html?s_campaign=8315 and http://www.capenews.net/bourne/news/road-rage-incident-leads-to-discovery-of-marijuana-growing-operation/article_ac780660-70e6-11e4-ae38-730e3cb9dade.html

November 19, 2014

“MUST I HELP LAW ENFORCEMENT OPEN AND EXAMINE MY PHONE OR TABLET?” (PART TWO)

My last posting examined this subject from the standpoint of whether the police have the right to grab your smart-phone without a warrant. It triggered rights guaranteed you courtesy of the Fourth Amendment to the United States Constitution.

Today we continue the search and seizure issue from another angle. Let’s say that the officer does have a warrant. We know that he then has the right to take the items. However, you have a great security program in effect and he cannot figure out how to open it.

He turns to you for help. Let’s say that you do not want to give him that help because what he finds may incriminate you.

Do you have to help them open and examine the items?

The key to this issue is the words “have to”. Clearly, you may voluntarily help them. You also know that, whether you help them or not, law enforcement may take the items and try to find away to examine the contents on their own.

If you tell them that you choose not to be so helpful in your own criminal justice demise, can they compel you?

This brings the debate to the Fifth Amendment, which protects suspects from having to testify against themselves. While the historical right to “plead the Fifth” is well understood , its role when it comes to cell phones is less obvious.

Before the days of cell phones and tablets, courts had to wrestle with various issues of daily life and investigations as they came to confront the Fifth Amendment. For example, if a grand jury subpoenaed someone to produce records in court, courts had to decide when obeying the summons triggered the Fifth Amendment.

In some instances, simply providing the paperwork in itself would be a statement. For example, doing so clearly indicates that you had the possession and control of those documents in order to produce them. Likewise, if there is incriminating evidence on your I pad, and you would prefer to distance yourself from seeming to have control or possession of it, if you give the officer the code…clearly you are showing that you know the code. It is probably your I pad!

What if the “key” to the IPod is a finger or thumb print? Same issue? Same finding by way of the court?

While there does not seem to be any controlling law in Massachusetts, Virginia courts have dealt with this issue in a sex crimes case.

The state alleged that the defendant had videos showing himself beating and sexually assaulting a complainant. They used a warrant to seize the phone, but could not view the videos since the cell phone was locked by a passcode. The defendant refused to unlock it.

In the case in which the “key” to unlock the cell phone was a person’s finger, the court found that a suspect may be forced to offer the use of his finger. The court based its decision on the fact that police may routinely require:

“Even though the act may provide incriminating evidence, a criminal suspect may be compelled to put on a shirt, to provide a blood sample or handwriting exemplar, or to make a recording of his voice,” wrote the court.

However, the same is not true when the “key” is a passcode. The court ruled that a suspect may not be forced to “disclose the contents of his own mind” by, for instance, telling the police a secret password. Requiring such disclosure, the court noted, amounts to “extortion of information” that basically requires a person to testify against himself in violation of the Fifth Amendment.

The Virginia man will have to provide a fingerprint or go to jail for contempt of court, but will not have to have to tell the police the passcode.

Attorney Sam’s Take On Reaching Beyond The Fifth Amendment

While we now have a ruling by the United States Supreme Court as to the Fourth Amendment’s effect on search and seizure of cell phones and tablets, we really don’t have a definitive answer regarding the Fifth Amendment. After all, the decision from Virginia is just a state court ruling that carries no larger precedent.

“So, it is worthless in Massachusetts?”

No. Because there does not seem to be a clear ruling here, the court may well consider what other courts have done in a similar situation. It is not binding upon the court, such as a ruling from the United States Supreme Court, but the court may well find it persuasive enough to find the same way.

This is clearly just the beginning of these types of cases. Up ahead are searches involving things like “The Cloud”, sent emails and texts and the like. We have already seen cases in which telephone calls made with wireless and cell phones may not be as protected with calls on what we now call “land lines”.

One primary issue is likely to be under what circumstances information sent and stored elsewhere is sent. In other words, what is the expectation of privacy?

Particular since September 11, 2001, the federal government, for example, has been given wider latitude to conduct its investigations under the guise of “national security”. Also, it important to remember that, in many cases, the courts can order a suspect or a defendant to do various things such as provide DNA samples, blood samples, fingerprints, etc.

As I reminded you in the beginning of Monday’s posting, the laws regarding search and seizure are complicated and ever-developing. Going it alone, without an experienced criminal defense attorney's aid becomes a big mistake.

Unless you are looking for a free and secure place to stay for a while, that is.

A long while.

To read the original story upon which this blog is based please go to https://gigaom.com/2014/06/25/supreme-court-holds-that-privacy-rights-apply-to-cellphones-police-need-a-warrant-to-search/ , http://hamptonroads.com/2014/10/police-can-require-cellphone-fingerprint-not-pass-code and https://gigaom.com/2014/11/04/suspect-must-use-finger-to-unlock-phone-as-debate-shifts-over-device-privacy/