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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 30, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“Why do you say ‘alleged’ abduction?”

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

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

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

September 26, 2014

SUSPECT IN KIDNAPPING CASE IS ARRESTED AND AWAITS EXTRADITION

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

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

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

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

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

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

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

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

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

Oh well.

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

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

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

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

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

Good enough, I guess.

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

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

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

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

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

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

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

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

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

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


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


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


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

September 23, 2014

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

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

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

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

But I digress.

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

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

Clearly a threat to the community.

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

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

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

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

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

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

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

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

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

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

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

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

I am.

“But they already gave him an attorney!”

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

“What do you mean?”

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


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

September 22, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Attorney Sam's Take On Complications Of Ongoing Police Investigations

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

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

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

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

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

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

Will the third try be the charm???


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

September 15, 2014

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

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

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

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

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

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

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

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

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

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

Who knows…maybe it was all a misunderstanding.

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

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

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

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

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

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

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

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

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

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

September 12, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

…And so it shall be.

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

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

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

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

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

But I digress.

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

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

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

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

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

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

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

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

On a high profile murder case no less!

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

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

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

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

September 11, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

Attorney Sam's Take On Criminal Justice Scapegoating

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

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

"But Sam, why did Peter confess?"

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

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

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

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

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

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

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

We have discussed scenarios such as that many times.

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

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

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

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

September 9, 2014

KIDS ARE ARRESTED FOR MARIJUANNA AND UNDERAGED DRINKING BASED ON TWEETS

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 http://youtu.be/Qq5Vdx_QbVo . Additional information at Token at www.tokenhiphop.com .

For the full story upon which this blog is based, please go to: http://www.boston.com/news/local/massachusetts/2014/09/08/teens-arrested-after-police-get-wind-tweets-alleged-underaged-party/zIHdaapFi88YvxDUR9iZFO/story.html

September 8, 2014

“WHY AM I FACING FEDERAL CRIMINAL CHARGES INSTEAD OF BEING SIMPLY CHARGED WITH MASSACHUSETTS DISORDERLY CONDUCT?"

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 https://abcnews.go.com/Travel/legroom-wars-plane-diverted-reclining-seat-fight/story?id=25168675 , http://www.cnbc.com/id/101947118 and http://abcnews.go.com/International/airline-drunk-women-fight-fighter-jets-send-plane/story?id=25154188

August 28, 2014

LAWRENCE MAN RECEIVES THREE LIFE SENTENCES IN SALEM MURDER CASE

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: http://bostonherald.com/news_opinion/local_coverage/2014/08/man_gets_life_in_deaths_of_girlfriend_2_children and http://www.eagletribune.com/news/article_e29d2e0a-2d2a-11e4-8b43-001a4bcf887a.html

August 12, 2014

DEDHAM POLICE OFFICER IS ARRESTED IN CONNECTION TO KIDNAPPING INVESTIGATION

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:
http://www.whdh.com/story/26216454/dedham-police-officer-arrested-in-connection-with-kidnapping


July 25, 2014

FORMER PROBATION COMMISSIONER AND ASSISTANTS ARE FOUND GUILTY OF CONSPIRACY AND RACKETEERING IN FEDERAL COURT TRIAL

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: http://bostonherald.com/news_opinion/local_coverage/2014/07/probation_trio_guilty_in_racketeering_scam and http://bostonherald.com/news_opinion/local_politics/2014/07/deleo_feels_vindicated_by_probation_jury_verdict