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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.

July 22, 2014

ATTORNEY SAM'S TAKE ON WHY SELECTIVE ENFORCEMENT AND UNNECESSARY LAWS SHOULD PUT YOU IN FEAR (PART THREE)

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

And now the important stuff.

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

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

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

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

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

Call it professional experience.

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

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

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

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

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

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

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

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

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

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

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

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

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

I guess I am.

Call it professional experience.

For the full story upon which this blog is based, please go to: http://www.lowellsun.com/news/ci_26081375/townsend-man-found-not-guilty-mv-homicide#ixzz36lyLLJqz
, http://www.ncsl.org/research/transportation/summaries-of-current-drowsy-driving-laws.aspx#current and http://www.bostonglobe.com/metro/2013/08/19/norfolk-michael-morrissey-quincy-court-for-closed-door-hearing-milton-crash/MT1IIJQ3Ei0YyuDkgEYYVM/story.html

July 21, 2014

MASSACHUSETTS VEHICULAR HOMICIDE LAW REVEALS INEQUALITY IN ITS ENFORCEMENT AND ATTORNEY SAM REALLY RETURNS TO REGULAR BLOGGING (PART TWO)

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

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

I’m not.

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

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

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


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

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

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

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

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

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

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

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

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

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

Thank God for jurors!

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

What does all this mean to YOU?

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


For the full story upon which this blog is based, please go to: http://www.lowellsun.com/news/ci_26081375/townsend-man-found-not-guilty-mv-homicide#ixzz36lyLLJqz
, http://www.ncsl.org/research/transportation/summaries-of-current-drowsy-driving-laws.aspx#current and http://www.bostonglobe.com/metro/2013/08/19/norfolk-michael-morrissey-quincy-court-for-closed-door-hearing-milton-crash/MT1IIJQ3Ei0YyuDkgEYYVM/story.html

July 7, 2014

AYER MOTOR VEHICLE HOMICIDE TRIAL ENDS IN “NOT GUILTY” AND ATTORNEY SAM RETURNS TO BLOG

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“Well, Sam, doesn’t that go without saying? Isn’t it a given?”

Actually...no. While the prosecution disagreed, our reading of the law was that there had to be some negligent act in the situation. In other words, that the Client had not met the reasonable person standard while driving. This would indicate some sort of decision on the part of the Client to disregard the potential risk.

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

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

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

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

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

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

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

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

The state of the law may surprise you!

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

To read the original article upon which this blog was based, please go to http://www.lowellsun.com/news/ci_26081375/townsend-man-found-not-guilty-mv-homicide#ixzz36lyLLJqz

June 26, 2014

ALLSTON COUPLE ARE CHARGED WITH MOTOR VEHICLE HOMICIDE AND INTIMIDATION -OR ARE THEY ?

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

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

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

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

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

And then came Tuesday.

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

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

Further investigation to ascertain facts. Interesting concept.

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

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

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

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

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

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

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

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

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

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

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

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

Only one thing stands in the way

The defense attorney.

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

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

"What does that mean?"

Check out my next blog, tomorrow.


For the full story upon which this blog is based, please go to: http://www.bostonglobe.com/metro/2014/06/24/driver-back-bay-crash-arraigned-motor-vehicle-homicide-charges/vGKUC1pllei50AoORI4z5H/story.html

June 23, 2014

MASSACHUSETTS DRUG TRAFFICKING ARRESTS CAN RESULT FROM ANY TYPE OF INVESTIGATION

In the criminal justice system, any road can lead to Drugland. Law enforcement knows this and you should too.

On June 7, in Peabody, there was the more typical drug investigation at play. It resulted in the alleged seizure of five kilograms of heroin and two kilograms of crystal methamphetamine. Three men, believed to be part of a large drug trafficking network based in Mexico were arrested in the Massachusetts State Police and federal Drug Enforcement Administration joint investigation. The alleged network is believed to involve distribution of the drugs from Mexico to Massachusetts and Southern New Hampshire.

Law enforcement agents were stationed at a hotel on Route 1 and observed two men leave with large duffel bags and drive away. The vehicle was stopped in Saugus and four kilograms of heroin was allegedly recovered in the duffel bag.

The men, and a third man, were arrested. The authorities then executed a search warrant on the men’s hotel room and say they found two kilograms of methamphetamine and an additional kilogram of heroin.

The total estimated value of the drugs is $1 million.

Sometimes, alleged participation in the drug trade is discovered unexpectedly. Take, for example, a recent story from Stoneham. There, a letter carrier saw smoke pouring from a second-floor apartment as he was heading to work. The Fire Department was called for what turned out to be a two alarm fire. The firefighters took care of the blaze although the fire, water and smoke now made the apartment uninhabitable.

While the tenant ho lived there was not home, something else allegedly was.

That would be approximately 480 marijuana plants, the estimated value of which is said to be $2 million worth. According to the police, the plants could produce upward of 960 pounds of marijuana buds.

"It’s something we take pretty seriously,” Stoneham Police Chief James McIntyre said. “Drugs are something that’s in every community and something we take very seriously.”
On a usually quiet street mere feet away from Stoneham’s Town Common, agents with the Drug Enforcement Administration and crews in white hazardous-material suits spent hours removing the plants in cardboard boxes marked evidence. Shards of glass poked from charred window panes that firefighters broke for ventilation. Police tape blocked the street from traffic.

A police spokesman added that "This was a major, sophisticated, drug-producing operation that has been shut down."

Attorney Sam's Take On Drug Trafficking Investigations And Seizures

As our second case demonstrates, law enforcement does not need to be in the middle of a drug trafficking investigation in order to find, and use, drug evidence. The police need only be at a lawful vantage point. For example, if an officer just happens to be strolling by your house, notices it is an unusual shade of blue, he or she cannot simply barge into the house, search your closets and have you prosecuted for what is found inside. That would not be a lawful vantage point. However, if you call the police because of a domestic violence situation, and they come to your house, and as you open the door they see that you have several bags of heroin sprawled out on the coffee table, you can be prosecuted for the heroin. The officers were at a lawful vantage point.

"Sam, is that fair? After all, what if I call the police because I was simply being a good citizen reporting a domestic violence matter?

Well, regardless of whether or not you feel it is "fair", it is the law. You need to remember that, regardless of what is going on, police and the courts do not appreciate the fact of criminal behavior. Regardless of how it is uncovered. Therefore, unless there is some kind of prohibition involved, you will be prosecuted if evidence against you was legally found.

Criminal investigations begin in all sorts of ways. Evidence can be discovered at the scene of a fire, it could be a tip from a confidential informant, an officer could witness something in the field or simply stumble upon something while doing something else entirely.

The laws are somewhat complicated as to when evidence seized by law enforcement must be suppressed (unusable by the prosecution). It involves what is considered part of your expectation of privacy and when that expectation can be rendered meaningless.

Recently, courts have been dealing with the question of information on a cellular phone. The suppression issue involves whether or not you have the right to expect privacy in what is on your phone. It is similar to the issue of whether a police officer who happens to be at your office for some reason can simply decide to go into your computer and read everything found therein.

Basically, without a warrant, he cannot. As with most situations in the law, there are exceptions. The laws regarding those exceptions change often as new cases are handed down.

In any event, the rules regarding suppressing evidence and thereby trying to get a criminal matter dismissed, or at least weakened, involves rules that you are not expected to really know. It is one of the things we hear about in law school. It is one of the things we get better at dealing with the more experience we have.

You have heard me repeatedly say that, in order to have the best chance in the criminal justice system, you should have an experienced criminal defense attorney by your side in a criminal case. This is but one additional reason why this suggestion is based on reality.

If you don't have someone by your side who has experience in dealing with these issues, he or she could be the most brilliant attorney on the planet. But if that brilliant attorney does not truly understand the rules and how they play out in reality, that brilliance is worthless to you.


For the full stories upon which this blog is based, please go to: http://www.boston.com/news/local/massachusetts/2014/06/07/state-police-seize-million-drugs-arrest-three/KyZuLn0ELfgRMdPwbL02kI/story.html
and http://www.bostonglobe.com/metro/2014/06/11/stoneham-firefighters-discover-marijuana-growing-operation-responding-two-alarm-house-fire/IwceNKdmHU1078lV4uoNUN/story.html

June 11, 2014

FEDERAL DEA AGENTS ARE ACCUSED OF BLACKMAILING MASSACHUSETTS DOCTORS OVER MARIJUANA LAWS

I have often marveled how federal law enforcement personnel, lawyers and agents, of nearly all types seem to live their professional lives with a “holier than thou” attitude. It is as if they have lived their lives pure of heart and are incapable of making mistakes that so many others do.

Often that air of superiority is based largely on pure hypocrisy. Let’s look at a case in point.

The Drug Enforcement Administration is being accused of threatening doctors associated with medical marijuana dispensaries in Massachusetts. Apparently, the DEA agents are telling these doctors that they will lose their federal license to dispense medications unless they severe ties with marijuana companies.

Several doctors told The Boston Globe and MassLive.com that DEA agents actually visited their homes or offices with the ultimatums.

Dr. Samuel Mazza, on the board of a medical marijuana dispensary, told the Globe that he found multiple messages on his answering machine and a DEA business card on his home door upon returning from vacation in February.

“You either give up your [DEA] license or give up your position on the board ... or you challenge it in court," Mazza, chief executive of Debilitating Medical Conditions Treatment Centers, said DEA investigator Gregory Kelly told him upon making contact.

Mazza’s Debilitating Medical Conditions Treatment Centers was one of first 20 dispensaries to receive preliminary state approval to open a medical marijuana firm. He relinquished his prescription license since, he said, it wasn’t required for his part-time job conducting surgery at a Veterans Affairs hospital.

Another doctor who asked to stay anonymous told the newspaper that he was given the same ultimatum by a DEA agent. He explained that, “The gist was to get me to either relinquish the DEA license, if I insisted on continuing with the dispensary, or give the license up ‘temporarily’ while involved with the dispensary”.

The doctor said he had no choice but to give up his position at the dispensary in order to guarantee his ongoing ability to prescribe other medication.

DEA head Michele Leonhart has not taken lightly the wave of added acceptance marijuana has received in recent years throughout various states in United States. She told Congress in April that marijuana legalization “makes us fight harder.”

Fortunately, it apparently still takes a little effort in order to thwart the will of the people in this land.

Leonhart opposed the US Justice Department when it said in August that it would work with Washington state and Colorado in their efforts to "implement strong and effective regulatory and enforcement systems” after the states had legalized regular marijuana sale and use.

The alleged strong-arming highlights the tension between federal law, which prohibits the use of marijuana, and various state laws that have allowed the sale and use of medical and non-medicinal marijuana. Massachusetts voters agreed to allow medical use of marijuana in the state in 2012.

Late last month, the United States House approved a measure that aims to bar the DEA from spending money to counter medical-marijuana companies that are legal pursuant to a state law.

I suppose we will find out whether that is a law which, if passed, will be followed.

Attorney Sam's Take On Treating The People, Following The People And Punishing The People

If the above-described tactics were performed by someone other than law enforcement, there would likely be prosecutions for blackmail, extortion and, potentially, racketeering.

“Wait a second, Sam. Wouldn’t the ‘strong-arming’ have to be for a criminal purpose in order for those statutes to apply?”

One would imagine that, since the current marihuana laws are the laws of the land, that threatening to ruin careers of physicians for following that law would be a criminal act.

As any regular reader of this blog knows, this is not the first time that law enforcement officials are found to have performed actions which are criminal acts if committed by you or me. In such cases, however, these officials blanket themselves with the theory the late former president, Richard Nixon, made famous. It contends that an act cannot be considered criminal if the government does it. In those days, the actions in issues included things like breaking and entering, obstruction of Justice and the like.

“Hey, what’s the big deal, Sam? We know that use of marihuana is not legal under federal law.”

The big deal is that the citizens of the Commonwealth of Massachusetts, among other states, had their say on this subject. The state politicians actually listened and laws were passed. Courts have endorsed these laws.

Marijuana is neither a deadly weapon nor heroine. This is a land in which alcohol, which studies indicate creates more of a threat than marijuana, flows virtually free. Marijuana has been found to be a legitimate medical solution for the suffering by many at the hands of various diseases. These are the findings of medical science and, again, put into effect by the state politicians, courts and the people.

Is the fact that certain zealots in seats of federal power don’t like what medical experts, state legislatures, state courts and the people find reason enough to take these dangerous, if not illegal, actions?

“Dangerous?”


Let’s look at the results which the DEA is apparently achieving (in our name).

We are talking about medical marijuana here. It is for the use of treating suffering in connection with various diseases. The DEA is threatening the misuse of its power to punish legal entities from dispensing the medical marijuana. The power it uses? The ability of medical personnel to not only operate and treat the related diseases, but to also prevent them from treating other diseases through medications that are unquestionably legal under both state and federal law.

The result, clearly, is the punishment not only to the physicians and pharmacies, but to the patients whom they treat. Us. We who do not even have a voice in the ‘punishment” visited on those medically trained.

Perhaps that does not really matter, given the federal government’s (particularly the DEA) apparent respect for the laws that we do pass.

What we have here is nothing short of the inability of the federal government agencies to respect valid and medically-important state laws and, in effect, its punishment of us for daring to disagree.

Perhaps it would not be so bad if this was not done during a time in which insurance companies and new versus old public medical programs are not falling over themselves already to second-guess and replace their judgment for those of medical professionals.

Not so long ago, in a case that still seems to be continuing, there was a great outcry against the Department of Children and Families for their replacing parental rights with their own choices when dealing with the treatment of a young child.. It would appear that federal agents care as much about the medical well-being of citizens as DCF cares about parental rights.

You may be wondering what this diatribe is doing in a criminal law blog.

First of all, I seek to warn you about the status and dangers involved in exercising one’s legal choices as to things like medical marijuana. More to the point, however, is the example of government abuses of power and the need to open the public’s eyes as to its existence.

Still today, when faced with realities of criminal prosecution, I see many clients outraged and shocked that the authorities can “get away with that” in order to support prosecutions.

The fact is that they can “get away with that” and so much more. Merely relying on your knowledge of the law (often based on television, movies and other surface-oriented media) is likely to help you walk right into problems that can damage your entire life. This is why I keep reminding you that you should engage the services of an experienced defense attorney.

It seems to me that, a number of years ago, we broke away from England for a number of reasons, most of which having to do with wanting the to live their lives, within reason, the way they collectively saw fit. The wanted the people to be in control of the nation and the laws. They began as states and finally formed a great union.

I cannot see how it is going to do any of us any good to throw those ideals away for political expectancy or to appease hard-boiled fanatics.

We have already seen plenty of instances when said fanatics gain too much power and end up controlling the people.


For the original story upon which this blog is based, please go to http://rt.com/usa/164356-dea-medical-marijuana-blackmail/

June 9, 2014

MASSACHUSETTS AUTHORITIES INVESTIGATE DEATH OF NORTON BABY AS POTENTIAL HOMICIDE

As last week began, I told you that we would be ending the week with another criminal justice aspect of what puts our kids at risk.

As the week went on, between school shootings, strong-arming federal agents and dead infants, it turned out to be rather difficult to choose. But, as we begin a new week, let’s hit some of these…starting with a story from Saturday’s Boston Globe.

It is the story of the death of a 3 ½ year old boy from Norton

Authorities are investigating the death of a 3 ½-month boy (hereinafter, the “Baby”) from Norton. The Baby died at a Rhode Island hospital after being rushed Wednesday night to Sturdy Memorial Hospital in Attleboro. The Office of Bristol County District Attorney C. Samuel Sutter are investigating the matter.

As you know, when death is involved, and a prosecution is at hand, the potential criminal charge is usually some kind of homicide. However, a spokesman for Sutter has stated that, at this time, the death is not considered suspicious.

Authorities say that The Baby was taken by ambulance to Sturdy Memorial after officials received a 911 call at about 10:08 p.m. on Wednesday about a baby in distress. The Baby was deemed to be in critical condition when he arrived there and was transported to Hasbro Children’s Hospital at about 10:45 p.m.

An autopsy is set to be performed on the baby to determine the cause of death.

A spokesman for the Department of Children and Families says that DCF is also investigating. The family does, after all, have another child…a twin sister of the Baby. DCF also indicates that the family has not been involved with state child welfare officials…previously.

Attorney Sam’s Take On The Tragic Death Of A Baby

As there is still a child living with the family, I would expect that non-involvement with DCF is about to end.

Words cannot express what a tragedy it is when a helpless child dies. The tragedy is certainly not diminished when the death is not due to any loss of temper or evil intent. Perhaps, when it is simply an accident, it is even worse.

It is certainly not unusual for medical examiners and law enforcement to look into the death of a baby. Such a death is simply not supposed to happen and, when it does, there is a need to find out how it did happen.

There is something, however, that you need to know.

Sometimes tragedies happen. Sometimes they happen organically and sometimes they happen accidentally. The reaction to “accidentally”, though, has changed over the years.

In today’s criminal justice system, there seem to be very few things that are considered simple “accidents”. Today, so many of these occurrences are treated like crimes.

“But, Sam, how can there be a crime if there is no evil intent or loss of temper?”

Because what the Commonwealth might label “negligence” is now often treated as a criminal act. Particularly in situations in which someone has died, much less a small child, and blame can be placed on someone living, the bearer of that perceived blame gets the label of “criminal defendant”.

And, yes, as with other crimes, there are double-standards to be found. Perhaps later this week I will give you a case in chief involving motor vehicle homicides.

These deaths are not supposed to happen. When they do, there seems to be a need for someone to be blamed. In today’s system, law enforcement has learned to take that need to heart.

Is it simply law enforcement who has this need? I would say that it is not. Law enforcement, and the politicians who control it, answer to public outcry.

On Sunday, there was another article on Boston.com. It discussed various babies who died in a particular type of car seat, the “Nap Nanny” infant chair. After babies fell off the chair and were found hanging in the safety harness, the seat was recalled. However, it would seem that some parents did not know this and would pick the chair up in secondary markets such as yard sales.

To the uninformed eye, it just seemed like a perfectly good baby seat.
Today, however, an uninformed eye is a dangerous thing to have.

Following the report of a sixth death about a week ago, the issue has come up again. Part of the outcry is why a parent would put their baby into such a dangerous item. The question, of course, assumes that the parent knew that the item was dangerous.

The bottom line?

Well, a consumer alert posted on Boston.com this past weekend ended with the following:

“Recalls can be a pain, but most are issued for good reason. Being unaware is one thing — not good, mind you — but anyone knowingly putting a child in a product in which six babies died (more than just about any other infant product) is indefensible.”

And we are going to prove ( in a criminal proceeding), that a parent had that knowledge…how?

Needless to say, the loss of a baby must cause unspeakable pain to a parent. It is hard to imagine how bringing charges against the parent for making a mistake is going to “teach them a lesson” or do anything else worthwhile.

Be aware, though. Such charges can come and do come.

As grief-stricken as a parent may be under such circumstances, it is often necessary for the parent to keep aware of law enforcement and its tendency to place blame…criminal blame…upon the other grieving victims in the tragedy.

The parents.

For the full stories upon which this blog is based, please go to:
http://www.bostonglobe.com/metro/2014/06/06/death-norton-baby-investigated/paHFTipgalzK1qLFwc1q6O/story.html and http://www.bostonglobe.com/business/2014/06/07/infant-deaths-underscore-importance-heeding-recalls/90JcCPnV3DMW4I8eX4sARK/story.html

June 2, 2014

NORTH ATTLEBORO MIDDLE SCHOOL GUIDANCE COUNSELOR IS CHARGED WITH RAPE OF A 14-YEAR-OLD STUDENT

As we start today’s blog, hoping for a more regular posting schedule than the last couple of weeks (again), we turn to the transition occurring for our kids. Namely, the school year is ending.

This week, I plan to start and end the week with stories related to school-related matters.

We turn first to North Attleboro, Massachusetts. There, a 31-year-old Middle School guidance counselor is facing charges with having sex with a 14-year-old student. At his arraignment last week, he was held on $30,000 bail.

Brian McBride, hereinafter, the “Defendant” has pleaded not guilty to the charges which include statutory rape. The proceeding was eventful in its own right as the complainant’s father had to be removed from the courtroom after an outburst.

Prosecutors allege that the Defendant, himself a married father of a toddler, had sex with the girl at school, in his car and at his home during several months last year.

According to law enforcement, the Defendant followed his course of bad judgment by making a few unfortunate statements to police. First of all, he allegedly told them that his marriage was in trouble and that he loved the girl.

Apparently, “love” bloomed when was the Defendant, also the girl’s chorus teacher, gave her private singing lessons.

The Defendant’s lawyer explained that his client was “well respected in the community up until these allegations.”

Yes, well, as we have discussed in the past…allegations of this type have been known to change such reputations rather quickly.

Attorney Sam’s Take On “Third Party” Defenses

When I first heard this story on the radio, I heard that the alienation of affections at home was actually claimed to be the cause of the “love affair” with the student.

I thought it was an… interesting… approach.

There are times in which a third-party might be blamed for the actions of a defendant. It does not happen often in criminal law though.

Sometimes a defense can claim that the complainant is to blame for what happened to him or her. This would usually be in self-defense or defense-of-another cases. In the case of rape, however, the closest to “blaming the victim” is claiming that the complainant is not telling the truth. In other words, the old and disgusting claim of "she was asking for it" no longer holds. In any event, the defense all "hey, I was not getting enough love and affection at home so I figured maybe I could get one of my students to supply some." is not likely to be successful.

It is also unlikely to do the marital relationship much good either.

Actually, I realize that I have forgotten something. Although it is a rare, there are cases in which a third party can be blamed by the defense in a matter such as this… and it could be successful. If believed.

If someone is standing with a gun pointed at your head and is telling you that unless you do something illegal he is going to shoot your head clear off, the claim of duress might be made.

It would be probably be a hard sell to get a jury to believe that someone was sticking a gun at your head, threatening to shoot you unless you had sex with someone.

In any event, that is not what is claimed here. It seems unlikely that a jury would find that the Defendant’s wife's alienation of affection's produced enough duress to force the defendant to have sex with an under-aged person.

Of course, should this matter go to trial, and the prosecutor be allowed to introduce the statement, you can be sure that it will be the subject of a great deal of ridicule.

The Defendant is probably trying to rationalize and explain why he did what he did (assuming he actually did it). It is unlikely that he believed that he was rendering his legal defense in the upcoming rape case. So, as odd and humorous as it may seem at first, his statements really not all that absurd. Remember that we do not know the details of how this alleged statement came about. As we have discussed in the past, there are ways of manipulating a suspect to say certain things. It would not be unusual for detectives in questioning a suspect to ask what the person was thinking when they performed a particular act, particularly a crime. That does not mean that the suspect is announcing his legal theory.

It might have occurred to you that, instead of rendering his rationale, the Defendant would have been better served keeping his mouth shut. I would agree with that. We have often discussed the pros and cons (mostly cons) of making admissions to the police. It hardly ever pays to fall into that trap.

The best course of action, of course, is to exercise one's right to remain silent until one is able to have an experienced attorney present.

The statements the Defendant is said to have made will likely be the subject of a motion to suppress before the trial of this matter.

If there is going to be a trial.

For the original story upon which this blog is based, please go to
http://www.wggb.com/2014/05/28/attleboro-middle-school-teacher-admits-to-sex-with-student/

May 30, 2014

JARED REMY PLEADS GUILTY TO MURDER IN THE FIRST DEGREE

On Tuesday, the son of longtime Boston Red Sox broadcaster Jerry Remy, Jared Remy (35 years of age and hereinafter, the “Defendant”), pleaded guilty in Woburn. He pleaded guilty to the murder of his girlfriend, Jennifer Martel (hereinafter, the “Deceased”) back in August, 2013.

He was sentenced to life in prison without the possibility of parole.

There was no plea bargain for a lesser sentence; there couldn’t be. He pleaded guilty to, among other charges, First Degree Murder. He received the mandated sentence for the murder as well as concurrent prison sentences for the remaining charges.

You likely remember this case. The Defendant was accused of fatally stabbing the Deceased at their townhouse two days after she obtained an emergency restraining order against him following his arrest on assault and battery charges.

According to Middlesex District Attorney Marian Ryan, the Defendant was incensed with the Deceased and killed her "in a fit of rage" because he perceived he was losing control of her.
"Today, with this plea, the defendant has been held accountable for his actions," said Ryan.

"This plea ensures that Jared Remy will spend the rest of his natural life in prison."
The Defendant was found, covered in blood, at the scene. There were neighbors who apparently witnessed the murder and apparently tried to help the Deceased. The Defendant is said to have kept them at bay by slashing at them.

Waltham Police Chief Keith MacPherson said he was pleased the case was resolved quickly.
"I hope this resolution will bring some comfort to the Martel family," he said.

The Defendant read a statement to the court at the hearing, saying that his family thought of Martel as one of their own children.

"Blame me for this, not my family," the Defendant said. "Jen always said my family was her real family. ... I'm the bad apple and if you ask my family, they'd rather have me dead than her."

The Defendant also maintained that on the night of the killing the Deceased” had a knife in her hand and threatened me with our daughter ... so I killed her."

He said he was in court "not for a deal but to take responsibility for what I have done."

Attorney Sam’s Take On Pleading Guilty To First Degree Murder

There is one thing about court. You never know what you are going to see. The unexpected happens so often that it could almost be called "expected".

Pleading guilty to Murder in the First dDegree is highly unusual. This is because there is really absolutely nothing to gain by pleading guilty under those circumstances. If you plead guilty to Murder in the First Degree there is no bargaining over a prison sentence. It is life.

There is no hoping for early release by way of parole. There is no parole. There is no early release.

There is no release.

I should also point out that, in the plea hearing itself, there are mentions of grounds for a lesser charge which could have been sought at trial, even if a “Not Guilty” was unlikely. For example, the “enraged” comment by the District Attorney could indicate a lesser charge and defense that he had lost control. The statement by the Defendant would indicate a potential self-defense claim or, again, a lesser charge of homicide that would not have resulted in the mandatory life-without-parole sentence.

So, why would the Defendant plead guilty to this charge?

One would imagine that it has to do with his state of mind. It would seem, given the statements made in court, as well as the act of pleading guilty, that the Defendant is remorseful and wishes to spare his family and her family any more trauma then necessary.

Needless to say, the loss of the victim as well as the lifetime incarceration of the Defendant can hardly be called "trauma-less".

So, is it simply altruism that would lead the defendant to plead guilty?

Clearly, the evidence against the defendant was strong. Clearly, it would be better for the families involved not to have to go through a trial. Perhaps there is hope on the part of the Defendant that, as he is doing the "right thing", he may receive some consideration down the road. It is difficult to imagine that happening, of course, since there is not much the Commonwealth or court can do for him under the circumstances. However, hope sometimes springs eternal.

"Sam, can't he appeal?"

Appeal what? He can't appeal the sentence saying that the judge abused her discretion in sentencing him so harshly. The judge is imposing the only sentence she is allowed to give under the law.

When one pleads guilty in Massachusetts one waives one's right to appeal. That means waiving the right to appeal previous rulings, for example in a suppression motion, or anything else, save an attack on the criminal sentence by saying that the judge abused his or her discretion. Again, there is no such appeal here.

"So, does this mean that it is the last that we will ever hear from the Defendant and this case? "

Not necessarily. It is possible that a motion for a new trial will be brought down the road.

"But I thought he waved his appeals"

This would not be an appeal, really. It would be an argument that his plea of guilty was not actually knowing and voluntary. The most common grounds for such a motion is that his attorney was incompetent.

In this case, should such a motion be brought, I would expect the grounds to be that he was not of a right mind when he made the decision and followed through with pleading guilty. Perhaps it was the emotion. Perhaps it was the pressure being brought upon him by the family. Perhaps it was because of his deep grieving for the Deceased. You would be surprised at what be argued.

I point out once again that, during the hearing, and afterwards by the District Attorney’s own statement, there was groundwork laid for a lesser charge.

It is very difficult to have a motion allowed for a new trial, particularly in the case with the defendant has pleaded guilty. On the other hand, this is a time when certain laws are being changed, such as a life sentence without parole for juveniles being struck down.

The Defendant is not a juvenile, but, as I said above, hope sometimes springs eternal.

Eternal as in for a lifetime which it would appear the Defendant will, at least for now, be spending behind the bars

Have a great, safe and law-abiding weekend!

For the full story upon which this blog is based, please go to:
http://www.newsobserver.com/2014/05/27/3891593/jared-remy-pleads-guilty-to-murder.html

May 26, 2014

SPRINGFIELD MAN IS SIEZED ON OUTSTANDING WARRANT AND OUI - MARIJUANA

Today is Memorial Day. I know that this is not the subject matter originally intended when this holiday was named, but just the suggestion of “memories” makes me…well…remember. I think back to when things seemed more simple in many ways. Sometimes that was good, sometimes it was bad.

Often, I hear people opine that folks were more civil back in yesteryear. Well, here is a story which shows that not everybody is immediately argumentative when it comes to law enforcement. Sometimes, the alleged criminal is completely cooperative.

Maybe even too cooperative for their own good.

Ricky Allende, a 30-year-old driver from Springfield (hereinafter, the “Defendant”), was cited in Springfield for a number of motor vehicle offenses. They included the alleged operation under the influence of drugs, failure to obey a stop sign, and failure to wear a seat belt.

This seems to be one in a few defendants who could not be charged with Intimidation of a Witness, Resisting Arrest…or even rudeness.

The Associated Press reports that Springfield Police Sgt. John Delaney, who stopped the Defendant’s vehicle, was allegedly “covered in a plume of smoke” when the Defendant rolled down his window for a traffic stop one evening last week.

Apparently recovering from the sudden localized cloud, Sgt. Delaney apparently asked the driver, "Are you smoking marijuana while operating this motor vehicle?"

The Defendant, nonplussed, is said to have responded, "Why, yes, I am, officer."

Now, you might suppose that this little adventure ended well for the Defendant. However, as it turned out, his demeanor and honesty did not win the day. You see, the Defendant also had an outstanding warrant for other moving violations.

Sometimes it just does not pay to be nice.

Attorney Sam’s Take On Car Stops And Statements

In all seriousness, it does pay to be, to some extent, cooperative.

We have discussed many times what is likely to happen when one challenges the authority of law enforcement in any way. As Star Trek: The Next Generation added to our lexicon, “Resistance Is Futile”.

Of course, there is a limit. While a questioning officer might prefer for you to pleasantly offer a complete confession, you have a right not to. That is not one of the questions that you must answer, like name, date of birth, etc.

"But I thought pot was legal now!"

It is not a crime to be in possession of a certain amount. However, you still cannot drive under the influence of it...or anything else.

t goes without saying that there will be issues in this case which should lead to suppression hearings. First of all, we have no indication as to why the Sgt. stopped the car in the first place. For the sake of argument, let’s assume that the Sgt. felt that the car did not seem to be driven expertly. It really takes very little to give him reason to pull the car over…although there must be an articulable reason.

The Sgt. certainly had the right to ask the Defendant to lower the window, assuming that he did so. The issue comes with the pointed question of whether the Defendant was smoking weed while driving. While the Defendant may not have seemed to mind the question at the time, it is likely that he feels differently now that he realizes that the pleasant little question might lead to a criminal conviction.

There are a number of questions which the court must consider when deciding whether to suppress a statement. One of them is whether the Defendant was in custody at the time. If he was in custody, then he should have been read his Miranda Rights first. However, the fact that the Defendant allegedly found the Q and A rather enjoyable may lead the court to believe that the Defendant did not feel in any way coerced.

“What about the fact that the Defendant might have been high? Maybe he could not understand the situation he was in.”

That’s an argument. Unfortunately, it is not likely to carry the day for the defense. Voluntary intoxication, which this likely is, is not a defense.

The Defendant has his work cut out for him when it comes to this prosecution. He’d better make sure he has a experienced lawyer at his side.

Pleasant or not…let the lawyer do the talking from now on…!

For the original story upon which this blog is based, please go to http://www.boston.com/news/local/massachusetts/2014/05/21/why-yes-smoking-pot-officer/LO6Hm48zKRKm0Ep3UsFx7N/story.html

May 19, 2014

COLLEGE GRADUATIONS LEAD TO ARRESTS FOR GUNS AND BOMB THREATS FOR QUINCY AND MARSHFIELD NATIVES

This morning, as I entered Brighton District Court, I noticed the familiar sight of a roomful of reporters and cameras waiting around for a chance of catching a piece of what would pass for action in the case of Andrea Massa.

Mr. Massa is the Marshfield gentleman who was arrested yesterday at the Boston University graduation. He stands accused of having tried to carry two handguns into the ceremony. Today, at his arraignment, 28-year-old Mr. Massa was ordered held on $100.000 bail according to officials.

Today was his arraignment and Massachusetts bail hearing.

Apparently, Massa is accused of causing a disturbance before a security checkpoint on the way into the festivities according to B.U. Spokesman Colin Riley. Riley also indicated that no one was in any danger.

Massa's wife told reporters that her husband was actually trying to leave when he was arrested and that it was all a misunderstanding. The Massas had been there to attend her sister's graduation. I. Fact, Massa is licensed to carry, his wife said. But a Suffolk County District Attorney spokesman said Massa is only licensed to carry firearms for hunting and target practice, and "faces a civil penalty for violating the terms of that license."

In court today, Massa was charged with carrying a dangerous weapon on school grounds, disturbing a school assembly, disturbing a public assembly and violation of firearms license restriction.

Of course this must have been a bit embarrassing, given that Massachusetts Governor Deval Patrick and Bill Cosby were also at the graduation.

Maybe that explains the high bail on what may amount to a civil infraction or criminal misdemeanor in an event in which the school's spokesman claims there was no danger.

Of course, Mr. Massa did not provid the only "disturbance" of graduations on Sunday.

Not too far from the Commonwealth, in Hamden, Conn., Quincy's Danielle Shea was dealing with a little commencement action of her own.

According to authorities, 22-year-old Ms. Shea had a problem. Her mom had paid thousands of dollars in the belief that her daughter was attending Quinnipiac University.

She wasn’t.

Sunday was graduation day and, of course, Ms. Shea’s mom expected her daughter would be graduating.

She wasn’t.

So, as her deception and graduation were about to collide, Ms. Shea allegedly decided to try to get rid of the graduation.

According to statements police say she gave to them, Ms. Shea detailed how she went about phoning in bomb threats to the school, hoping they would cancel graduation.

They didn’t.

Instead, they moved the location of the graduation and Ms. Shea was arrested where the graduation ended up taking place.

According to police, Shea made two calls to the university's public safety department. In the first, about 20 minutes before the start of the 6 p.m. graduation ceremony, she stated there was a "bomb in the library," said police. In the second call, about 20 minutes later, police said Shea warned "Several bombs are on campus" and noted "You haven't cleared out graduation. That's not a good idea."

Hamden and university police identified Shea using the telephone number she'd called from and then found her at the arena, the new location for her alleged graduation, which she had successfully delayed for 90 minutes.

She has been charged with first degree threatening and falsely reporting an incident. She is being held on $20,000 bond and is scheduled to appear in court in Meriden on May 30.

Two earlier ceremonies were held at 9 a.m. and 2 p.m.

Attorney Sam's Take On Terrorist-Type Threats


This is the day of the terrorist threat, folks.

Universities and everybody else take these things very seriously.

You may be wondering why someone calling in bomb threats had bail set at $20,000 and someone who was not necessarily knowingly breaking any criminal laws was held at $100,000. That’s easy…different courts, judges, jurisdictions, etc. We have often times discussed that there is very little in the way of consistency in these things. All anybody knows is that, although it would appear nobody was actually in danger in either of these situations, the need was there to give harsh “no nonsense” treatment

That usually amounts to incarceration. Regardless of how the matters may resolve themselves in the end.

I don’t know what these two defendants are doing for counsel. I would, as usual, suggest that experienced defense counsel be used. It seems from this standpoint that these are going to be sensitive cases in which nuances will be very important.

The overall message to you?

To engage in anything that can be considered a threat in any way is likely going to land you in custody. There is no sense of humor here. As sympathetic of your plight with your family may be to some people, it is not going to soften the hearts of law enforcement when it comes to charging you.

And if you, or a loved one, have engaged in one such debacle…expect serious repercussions. It is not a “little thing”.

Lawyer up! Sooner rather than later!

For the original stories upon which this blog is based, please go to http://bostonherald.com/news_opinion/local_coverage/2014/05/police_arrest_woman_in_quinnipiac_bomb_threats and http://m.wcvb.com/news/boston-university-man-with-guns-arrested-at-commencement/26044646

May 16, 2014

BROCKTON DRIVER IS ARRESTED FOR LEAVING THE SCENE OF AN ACCIDENT AFTER ALLEGEDLY STRIKING THREE CHILDREN

As I just returned picking up my daughter at college and then drove my son and his mother to Logan Airport for his first appearance in Los Angeles, I have been kind of “offspring-minded” this week. Then, just this morning, as I was listening to WBZ radio, I heard of another one of those news stories that hits me between the eyes both as a parent and as a lawyer.

It was in Brockton. It was approximately 8:00am yesterday morning. Kids were crossing the street to board a school bus just like any other week day when Boston’s Blizzards are not standing in the way.

An automobile apparently came racing down the street and struck three of those children.

According to a witness, the driver stopped to ask if the kids were alright…and then took off. Police were called and, a short time later, Brockton police arrested Yainira Boria, 38, (hereinafter, the “Defendant”) who was allegedly standing by the car involved, drinking a beer.

School officials say that the bus had been stopped with its stop sign out and lights flashing when two 8-year-olds and a 6-year-old from the Brookfield Elementary School were hit by the car.

The three children who were struck were back home last night. They all had scrapes and bruises, but, miraculously, no broken bones or other more serious injuries. They were treated at Brockton Hospital and then released.

Two of the children, aged 8 and 6, were two of the children who were hit. They live in the same building. One of their fathers, Lorenzo DaSilva, was walking them to the bus when, he describes, the automobile came out of nowhere. He said that he saw the group get hit and his son fly into the air. Then, he states, the car stopped and the driver stopped, explained that she did not have a license, and drove off.

Mr. DaSilva also explained that, at the time, he was focused on his son. He went on to describe going to his son who was not communicative, picking him up and bringing him to the side of the road.

There had been three children who had already boarded the school bus at the time of the accident. They went on to school where they were seen by a guidance counselor.

Attorney Sam’s Take On Massachusetts Vehicular Crimes And Leaving The Scene

You do not need my reaction as a parent. You might be interested in my thoughts as a Massachusetts criminal defense attorney.

I must point out, of course, that this is well-trod ground; we have discussed these issues many times in the past. Perhaps the Defendant was not a reader. Allegedly.

It seems from the story that the Defendant may well be facing a number of criminal charges. First of all, there is the obvious leaving of the scene after there has been bodily injury. It is a crime that the Commonwealth takes very seriously. This case, of course, has aggravating circumstances…namely, three injured kids.

Other charges which will likely be brought are Operating To Endanger and Assault and Battery with a Dangerous Weapon or something of the like.

“But doesn’t the hitting have to be intentional in order to be charged with that?”

Yes, but in certain circumstances, the Commonwealth may argue that the behavior was so reckless that the charge is valid.

“What about drunk driving or driving without a license?
She may have reportedly said that she did not have a license, but there is nothing in the story which indicates that this was correct information. If it was correct, then she would likely be facing that charge as well. The question regarding drunk driving question is an interesting one. According to the Commonwealth, the Defendant was found drinking alcohol. However, this was after the accident. Therefore, it is not really relevant to the accident as it is not illegal to drive and then drink. However, the police may or may not have tested whether she was intoxicated. If they did so, and found that she was, then there is a question of fact. For example, if she tested high on a breathalyzer, expert witnesses might opine, given the time that had passed between the accident and when she was located, that she had to have ingested alcohol prior to her arrest and what level of alcohol (if any) was in her system at the time of the accident.

In fact, if they have that kind of evidence, the Commonwealth would likely argue that she had gotten out of the car and wanted to be found drinking a beer so that she could claim that she had not driven the car and have an excuse for smelling like alcohol.

Particularly in such a case, identification will be a very important issue. It may come down to evidentiary issues such as whether it is indeed her car and how good an identification was or could be made by the eyewitnesses. The Commonwealth will also likely use the alleged leaving the scene as “consciousness of guilt” evidence. Of course, that only works if the Defendant is proven to be the driver beyond a reasonable doubt. If the jury believes that she was the driver, then the testimony of her stopping and making statements would be strong evidence that she absolutely knew about the personal injury and simply wanted to get away.

“So, is a defense of this case hopeless?”

I have often told you that I seldom see a case as “hopeless”. Assuming the right defense lawyer is handling the case, there are usually many issues that can be used to defend a client.

Clearly, there is substantial evidence already observable that could be used by the defense as to the identification issue.

One question, of course, is whether the Defendant has a valid driver’s license. If she does, then that helps to show she was not the driver because the driver claimed not to have a license. On the other hand, if she does not have a license, how would the witness have known that unless she said it?

Actually, there are a few answers for that…but there is a limit to what I can tell you here. This is, after all, a blog not a book (yet).

Suffice to say that the Defendant should make sure she has an experienced and talented criminal defense attorney.

But, then, I suppose I am repeating myself.

So, I will just apologize once again for the absence of blogs this week and wish you a great, safe and law-abiding weekend!

For the original story upon which this blog was based, please go to http://boston.cbslocal.com/2014/05/15/3-children-struck-by-hit-and-run-driver-in-brockton/