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

Folks are focused on the federal criminal appeal of Dzhokhar Tsarnaev (hereinafter, the “Defendant”). While his appeals will be automatic because of his unusual penalty, all criminal defendants, especially if convicted after a trial, have the right to appeal their conviction.

The appeal, however, may not be what you think it is.

Let’s look at the Defendant’s appeal, for example. Most analysts opine that one of the primary grounds for appeal will be the court’s refusal to move the site of the trial. In fact, a number of articles, one of them being “Marathon bomber likely to appeal over Boston trial site” the experts forcast that the appeal will focus on the judge’s refusal to move the trial out of Boston and the prosecution’s barrage of emotional testimony from more than a dozen victims of the attack.

Clearly, nobody expects the basis of an appeal to be that the juror’s verdict of guilt was not based on the evidence. Yet, most people believe that a criminal appeal is really a chance to second-guess the jury.

It really isn’t.

Actually, it is to second-guess the judge.
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As you know, I have been ensconced in the criminal justice system since the early 1980’s. One of the perks of being around so long, and being fairly successful, is that various media outlets often contact me to discuss some development in criminal justice. They know that I am a former prosecutor, have been a Boston criminal lawyer since 1990 and have handled several high profile cases. Last Friday, I was approached by various radio stations from Boston, Toronto and San Francisco.

They wanted to discuss the federal jury’s sentencing decision on the multi-murder case of convicted Boston Marathon bomber Dzhokhar Tsarnaev (hereinafter, the “Defendant”).

In case you missed it, the jurors unanimously suggested that the Defendant be put to death. Reports on the verdict, as well as more analysis than you could possibly want, abound throughout the media. One such article printed just after the verdict can be found in the Boston Globe, Jurors Did Not Believe Sympathetic Narrative About Tsarnaev.

Opinions abound as to why the jury found as it did, especially since they did so much quicker than most people expected.
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Juries are often criticized in this country when folks don’t like the verdict they deliver. In my experience, though, jurors are not some ignorant bundle of jello-wobbling mindlessly from side to side during the trial, just waiting to pop out a verdict for the side with more money. In my experience, jurors try quite hard to deliver the verdict which rings true to them.

There is not much more we can expect from them.

The jurors in the federal multi-murder matter of convicted Boston Marathon Bomber Dzhokhar Tsarnaev (hereinafter, the “Defendant”) are now struggling with grappling a verdict which may be the most difficult of all. It is literally a life or death decision.

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The Executive Office of Public Safety recently released a report detailing their investigation into 39,000 breath test results. The investigation started when questions arose regarding the calibration of the breathalyzer machines. The report found that in fewer than 150 cases, breath test personnel should have deemed the results to be invalid. Because of human error, the values were found to be outside the acceptable tolerance range set by Massachusetts’ regulations.

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It was actually a mixed verdict…but will that help 28-year-old Josh Wairi (hereinafter, the “Defendant”) very much?

The former elementary school teacher in the Somerville and Cambridge public school systems has finished his five-day jury trial. He was convicted of federal child pornography charges (to wit: possession and transportation of child pornography). He was also acquitted of three counts of production and attempted production of child pornography.

The former teacher at the Graham and Parks School in Cambridge’s case involved, among other things, videos secretly taken of naked children in a Somerville school locker room.

Prosecutors say the former fifth- and sixth-grade teacher used email to trade and receive images and videos of child pornography, uploaded images and videos of children being sexually exploited and also traded the images with others. The Commonwealth says he had more than 27,000 pictures in his possession
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When it comes to marijuana, law enforcement has consistently used its odor, unburnt and burnt, as probable cause to search suspected criminals. However, since the possession of up to one ounce of marijuana was decriminalized in 2008, the criminal justice system has had to take a new look at what set of facts Police may use to justify a search and seizure. Whereas before decriminalization, law enforcement could justify a search of a vehicle based solely on the odor of marijuana. Today, if the police pull your vehicle over and smell marijuana, they cannot detain you unless they believe an actual crime is taking place. After 2008, law enforcement could no longer make the inference that marijuana equals criminal activity.

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Let’s not accept the exception to the rule as a substitute for the general criminal justice rule. Particularly in cases where the stakes are as high as they are in murder cases. Especially when the penalties are either death or life imprisonment without the chance of parole.

The Dzhokhar Tsarnaev case is the exception. Very rarely do you have defense attorneys get up in the beginning of a trial to proclaim their client guilty as charged. More often, there is some question as to guilt or innocence.

Take instead the Washington D.C. case of Santae Tribble. Mr. Tribble was a 17-year-old man in 1978. That was when he was accused of murdering a taxi driver. Thanks mostly to the expert testimony of an analyst with the Federal Bureau of Investigation about DNA found on hair strands, Mr. Tribble was found guilty and received a sentence of 20 years to life in prison.

It turns out that the expert had been wrong. The hair did not belong to Mr. Tribble. In fact, it turned out that some of the hair was not even human hair. It had come from a dog.

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As you may recall, we were talking about death and were about to move on to the convicted Boston Marathon Bomber, Dzhokhar Tsarnaev (hereinafter, “Convicted”).

As you no doubt know, Convicted is now sitting through the penalty phase of his murder trial in Boston’s Federal District Court. As he has been convicted in federal court, he is eligible for the death penalty. The hearing going on now is to convince the jury to either sentence him to life in prison or to death.

While the court has, and will continue to, tell the jurors that they are not to make this decision based on sympathy or emotion, clearly that is what both sides are trying to do.
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This is “D-week” for Dzhokhar Tsarnaev, the convicted Marathon bomber. This has brought up a new discussion about the death penalty. That new discussion has brought up some facts which should frighten you a great deal.

We will get to them.

Presently, there is no death penalty in Massachusetts state court…even in cases of Murder in the First Degree the sentence is life in prison without parole. It is the Federal Criminal Justice System which still employs the use of death as a punishment for certain crimes by the government.

Before I discuss further the new discussion referenced above, I want to point out that death can be the result of criminal prosecution in more than one way.

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In my last posting, we discussed Emmanuel Bile and his conviction in the rape trial that had just ended.

After the sentencing hearing, Mr. Bile was sentenced to serve eight to ten years in Massachusetts State Prison.

The complainant addressed the court at the hearing. She told the judge that “That night nearly broke me.” She spoke of an “indescribable emptiness and sadness” that consumed her life after the rape, and said she felt that Bile had treated her as “less than human.”

The prosecutor recommended a ten to twelve year sentence in state prison term followed by five years of probation. She argued ,”These are some of the worst acts we can imagine in our society.” She also referred to what she called Bile’s “lack of remorse”, the victim’s vulnerability during the incident, and the lasting impact on the woman.

“It’s absolutely clear her entire life has changed because of this,” the prosecutor said of the woman.

Defense counsel recommended a prison sentence of four-and-a-half to eight-and-a-half years followed by probation, arguing that Bile — eighteen at the time of the incident — was young and naive.
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