Boston Criminal Lawyer Blog

The “wild west” has long been associated with images of folks making their own rules and bravely trying to tame the frontier. It would appear that two Western Massachusetts gentlemen had similar attitudes…although, according to the police, their actions would be more aligned with untaming than taming the area.

Let’s start with this past Friday in Springfield. 30-year old Ricardo M., (hereinafter, “Defendant”) was observed by police officers while allegedly ducking down inside a car near 86 Maple Street. When simply nestling under the dashboard did not work, he decided to jump out of the car and lead the police on a foot chase. This, however, did not make his situation dire enough, so he took the extra alleged step of breaking into an elderly woman’s apartment to hide.

She screamed. Police came. He was arrested.

Winning second place in the race, Defendant was awarded the runner-up prize, namely, charges of receiving a stolen motor vehicle (the ignition was found “popped” upon further investigation), breaking and entering in the nighttime with intent to commit a felony, possession of burglarious tools, driving with a suspended license, two counts of assault and battery on a police officer and resisting arrest. Oh yes, and a prize he had previously won, but never claimed – reunion with an outstanding parole warrant.

And so the Wild West Weekend began.

The Saturday Criminal Justice Races were held in Leominster. This race track did not include anyone’s apartment, but did include railroad tracks and all four lanes of Route 2.

The cause – at – issue for this life-threatening contest were charges for shoplifting videogames from a nearby shopping center.

Not surprisingly, the police won this race too. The runner-up prize was, once again, the Commonwealth’s bracelets of shame and additional criminal charges.

Sunday’s racing results have not yet been reported…or, at least, read.

SAM’S TAKE:

Perhaps I have not been clear enough in these daily blogs; that may well be the problem. Attorneys are supposed to be clear and try their best to make sure they are understood in these apparently complex and mysterious matters. Let me approach this way:

IF THE POLICE ARE SEEKING TO QUESTION OR DETAIN YOU, DO NOT RUN, HIDE, DRIVE, CRAWL, PUSH, SHOVE, ROLL OR ATTEMPT TO FLY AWAY. IT WILL ONLY MAKE MATTERS WORSE AND, OFTEN, BRING TO LIGHT THINGS THEY NEVER EVEN SUSPECTED!

If you have been apprehended or simply approached by the police…whether you are guilty of what you suspect their concerns are or not…engaging them in the Olympian way is not going to work. At best, you will win the runner-up prize of additional criminal charges. At worst, you could lose your life. You will certainly be further risking your liberty.

Nobody wants to be facing charges for receiving stolen property, violating parole or probation, shoplifting or the like. However, adding charges for resisting arrest, breaking and entering, assault and battery on a police officer and the like is hardly a profitable solution. It is, simply speaking, making a bad situation much worse.

“Self help” seldom works in the Criminal Justice system…especially for defendants. The way to minimize damage and help yourself is to comply with the officers and close your mouth until you get an experienced attorney to assist you. That’s right, no matter how golden a tongue you might feel you have, attempting to out-smart the officers to convince them why they should simply let you go will not work either. You will only give them more ammunition to use against you. That’s part of the reason for those Miranda Rights you’ve heard so much about.

I have been dealing with the myriad of cases the Criminal Justice system brings in for over twenty years. In the 1980’s, I was a prosecutor in two different states. Since the 1990’s, I have been a Boston criminal defense attorney handling cases in courts throughout Massachusetts. I cannot tell you how many cases I have handled in which, if the defendant simply was quiet and respectful to the police, the case could have ended early on with little to no damage but, because of a failed attempt to outsmart or outrun the police, the defendant was held in custody and faced heavier charges.

By the way, not only does trying to escape not work and bring additional charges, it also hurts you at trial. There is a doctrine called “Consciousness of Guilt” which prosecutors love to argue before judges and juries. The argument is that a person running to escape the police is evidence that they have a reason to do so…also known as guilt of what is being investigated.

To sum up, trying to run away from law enforcement is the anti-gift that keeps on “giving”. Get an experienced attorney with whom you are comfortable to help you deal with your problems in the trenches. The bottom line is that, without one, you are unarmed in the streets and the courtroom when dealing with these issues.

NOTE: The daily blog will not be so daily this week, I’m afraid. I will be unable to post on Tuesday and Wednesday due to the Jewish holiday of Rosh Hashanah. However, I will be back and posting on Thursday.

Samuel Goldberg is the senior defense attorney at the firm of Altman & Altman, P.C. A former prosecutor in New York, he has worked as a defense attorney in Boston over 18 years. He frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network

The full articles of these stories can be found at
http://www.masslive.com/news/index.ssf/2008/09/springfield_police_arrest_susp_6.html and http://www.telegram.com/article/20080928/DIGESTS/809280397/1005/NEWS06

In Massachusetts, Buck Bishop, the then-18-year-old Danvers teenager who fatally struck 73-year-old Peabody resident Joyce Oliver and injured a Boston-area couple while driving to a methadone clinic last year, has been ordered to serve a 15-month-prison sentence.

Last week, Bishop pleaded guilty to misdemeanor vehicular homicide. He admitted that he crossed the center line and struck the two vehicles carrying the three victims while driving on Route 1 close to the Topsfield-Danvers line on November 16, 2007.

Bishop had previously told police that he blacked out at the wheel and did not remember anything about the accident. According to a drug recognition expert called in by police, the teenager was not driving under the influence of drugs when the accident occurred. Bishop, however, admitted to using cocaine two days prior to the crash.

Prosecutors had pushed to have Bishop serve a full 2 ½ year jail sentence, which is the maximum sentence for his crime. They noted that he had violated the terms of his release on more than one occasion when he tested positive for narcotics and failed to meet with his probation officer earlier this year. As a result, Bishop has been in police custody and held without bail since then.

Judge Robert Cornetta sentenced Bishop to the full-term but suspended half of the time at the request of Bishop’s Massachusetts criminal defense lawyer. Bishop will also serve probation for 10 years and his license has been revoked for 15 years. Bishop, who received credit for the 111 days that he spent in police custody, could be eligible for parole in four months.

If you face criminal charges for a motor vehicle accident in the greater Boston area or anywhere in Massachusetts, you are entitled to the best criminal defense available to you.

Man gets 15 months in crash that killed elderly Peabody woman, The Salem News, September 26, 2008

Teen changes mind about plea in fatal crash, The Salem News, July 8, 2008

Related Web Resource:

Massachusetts General Laws

Continue reading "Massachusetts Judge Suspends Half of Prison Sentence After Danvers Teen Pleads Guilty to Midsdemeanor Vehicular Homicide for Head-On Crash That Killed Elderly Peabody Woman " »

Almost everyone necessary showed up in the Hampden Superior Court in Springfield the other day. The jury was ready for the reading of the verdict. Judge McDonald was there. Assistant District Attorney Morse was in the courtroom. Defense attorney Stamm was sitting, albeit lonely, at her seat. Only one thing was missing.

38 year old Gerry H, also known as the Defendant, was gone.

He had been present for the trial, final arguments and instructions to the jury. Perhaps not coincidently that means he was the there to hear that he was facing a 20-year minimum mandatory sentence. His faith in the outcome was apparently justified…the jury found him guilty of assault with a dangerous weapon, assault and battery, home invasion and threat to commit a crime.

Several hours after the jurors reported that they had a verdict, the Court made the determination necessary under law that the defendant had "voluntarily absented himself," and called the jurors into the courtroom. He told them that they should not concern themselves with the defendant’s absence as they reported their verdict. They didn’t and a warrant was issued for his arrest.

The case involved a March 22, 2005, home invasion on Colton Street. The victims were a 7-year-old girl and her mother, who the prosecutor described as being caught in the middle of a dispute involving the defendant. The woman testified that he was one of two men who pushed her into her house as she tried to enter, and shoved her head against a wall. The two slapped her, grabbed her in a chokehold, and held a gun to her head, the prosecution case alleged.

A neighbor, alerted by his dog barking, heard the commotion, walked across the street, and called out to the woman. The two men then walked to their car and drove away.

The second man has not been identified.

The defense attorney had told the jury that the victim's statements included inconsistencies, and that there was an incomplete police investigation of the event. She said the jury would see why the victim had a motive to fabricate the allegations. Maybe they did…but, if so…it did not seem to make much of a difference.

Sam’s take:

There is no “my eyes are closed so you can’t see me” remedy for jury trials. In other words, even if the defendant disappears before it ends…it ends anyway.

Appeals aside, the trial is the final battleground of a criminal case. Neither side has blinked and an agreed-upon resolution has not been reached. It is now time for the war. It is too late to decide that you do not like the way things are going and decide to change the team. You can run away and hope to defend another day…but that other day will most likely find you behind bars and it may be too late to do anything about it.

The time to have your team and strategy together is BEFORE the trial. In fact, even before the arrest if possible.

As an assault defense attorney in Boston for many years, I have developed an expertise in handling these cases at trial. In the over 20 years I have been in the Criminal Justice trenches, I have seen just about every type of scenario play out. I can tell you that the strongest defense is one in which the defendant and the attorney work together as a team. If your criminal defense attorney refuses to return your calls or have contact between court dates, then the attorney may not be totally invested in your case. If the defendant ignores the entire case between the dates, he similarly is ignoring the reality that is going to play itself out with or without his input ; either way, he will experience the consequences.

If you are either facing charges or have reason to believe you will be, get an experienced attorney who is expert at trying the case. It may or may not come to that, but if it does, you do not want to decide, for the first time, you have a lack of confidence during the trial itself.

My team and I at Altman & Altman PC have decades of experience in successfully handling criminal matters in and around Boston. We are available 7 days a week, 24 hours a day and the initial consultation is always free. If you call us, we will be there for you.

Of course, the safest way to avoid a criminal trial is never do anything that can even remotely be considered or misconstrued as a crime. And don’t be in the wrong place at the wrong time. And don’t upset anyone who might bring false charges against you.

But, assuming you live on Earth in 2008, be prepared anyway.

If I don’t talk to you beforehand…

Have a good and law abiding weekend!

the full article of this story can be found at
http://www.masslive.com/chicopeeholyoke/republican/index.ssf?/base/news-16/1222413430310040.xml&coll=1

Yesterday’s Salem News told of 31 year old Peabody resident Tyler P. According to prosecutors, he is an enterprising young man with a taste for some of the nicer things in life. Unfortunately, they also claim that his methods of financing such things were not so nice. So they went out and got him something they knew he had not already gotten for himself. They got it from the local grand jury. You guessed it, it’s a brand new indictment.

Mr. P. now faces a multi-count indictment alleging four counts of felony larceny, three counts of insurance fraud, three counts of filing a false police report, forgery, attempted larceny and uttering a forged instrument.

Mr. P. first came to the attention of insurance company investigators last spring after a series of claims raised red flags at Arbella Mutual, the company that insured his car. A year earlier, in July 2007, he had added rental car coverage to his auto insurance policy. An hour after adding the coverage, he called again to say he had been involved in an accident. While the car was waiting to be repaired, prosecutors in the attorney general's office allege, he filed a false police report with the Beverly police, claiming that his car had been vandalized and reported the vandalism to Arbella.

They claim that this was done in hopes that the car would be totaled. Instead, Arbella turned the case over to the Insurance Fraud Bureau, a private organization that works with insurance companies and prosecutors. The IFB concluded that Mr. P. had misrepresented the timing of the crash so that he could qualify for the rental coverage, which he did not have at the actual time of the accident. This conclusion, led to a closer look at some past insurance claims by Mr. P.

It turns out, according to investigators, that 2007 had been a very busy year for Mr. P. In May, Mr.P. had filed an insurance claim that an engagement ring he had purchased was stolen as he was on his way to dinner in Salem. According to investigators, he bolstered the claim with a forged Salem police report. In March and July, he is said to have twice claimed that his ATM card had been stolen and that someone had made withdrawals from his account.

He is scheduled to make his Criminal Justice debut in Salem Superior Court on Oct. 22nd

Sam’s take:

Mr. P.’s plight provides a couple of lessons for us which are true in most cases of alleged white collar crime.

First of all, it may seem obvious to some, but I know it is not obvious to others. Falsifying in any way, including “just a smidgen” of exaggeration on an insurance claim form is illegal. It is a crime. It is fraud. Do not do it. Yes, even changing the date. You may be able to change history with your friends or your family…but not with the insurance company or such entities. They have a motivation to not go along with it…they are not terribly anxious to cut you the check you want.

Perhaps Mr. P. is one of those honest individuals who are unlucky in life. Perhaps he is a guy who saw a “good” scam and pounded it into the ground in front of a sign that read, “ Greed Is Good; Overdo It”. Either way, he is in big trouble and the alleged facts and circumstances do not look good.

The key here is that, probably even before he knew it for sure, there was an investigation. Assuming Mr. P. is at all conscious of reality, he must have suspected there such an investigation was possible. Further, such investigators usually notify the suspect at some point, alerting them about the investigation. This is done for two reasons. First, to give the insured an opportunity to not cooperate with their investigation. This refusal to cooperate relieves the insurance company of responsibility to honor the claim.

Such investigations are also used to help law enforcement. It is a way of pressuring the insured to submit to interrogation and produce documents in a venue where the investigator is not hampered by the inconveniences that police officers must respect, such as reading a suspect his rights and the like. Many people, figuring that all that is at stake is not getting their money, feel they can handle this without a lawyer.

And they can.

They are also free to walk around wearing a t-shirt saying, “I must have done something wrong…arrest me”. In other words, it is a foolhardy thing to do, particularly if you know that the insurance company suspects you of fraud. While some may say that Mr. P.’s history is a bit extreme, even less extreme cases can end up listed in an indictment. The fact is that some people are ignorant of certain laws. Further, mistakes can be made. Whether you feel you did something wrong or not…protect yourself.

The bottom line here is that, at the first suspicion of such an investigation, or at least when notified by the insurance company that it suspects fraud, get an experienced lawyer to guide you through the process. Especially in times like this, with the current events wreaking havoc with the economy, the insurance companies and government tend to take these things serious. When fraud is alleged, you are not simply at risk of losing the money; you are could lose your liberty too.

The full article of this story can be found at
http://www.salemnews.com/punews/local_story_268000836.html

The US Senate has passed a bill that would update the country’s laws related to cyber crimes. The legislation, known as the Identity Theft Enforcement and Restitution Act is tougher on cyber criminals and gives victims of identity theft an opportunity to sue for damages.

The Bill Proposes:

• Making it a felony to install keystroke-monitoring programs or spyware on 10 or more computers regardless of damage. This is a major change, since many cases of cyber crime involve thousands of computers at less then $5,000 in damages per victim.

• Allowing federal courts to prosecute cyber crime defendants within their states of residence, rather than only if they used interstate communication to commit a cyber crime against a victim.

• Making it a crime to extort companies using cyber technology.

• Giving victims of identity theft the opportunity to obtain restitution for time and money lost in their efforts to recover from the cyber crime.

In Massachusetts, if you have been arrested for a cyber crime, it is important that you seek the counsel of a defense attorney that will know how to defend you against any charges.

Examples of cyber crimes:

• Internet fraud
• Cyber stalking
• Internet porn
• Identity theft
• Internet gambling
• Computer fraud
• Sexual solicitation via the Internet
• Computer hacking
• Planting Internet viruses

Senate Approves Bill to Fight Cyber-Crime, WashingtonPost.com, July 31, 2008

S. 2168: Identity Theft Enforcement and Restitution Act of 2007, Govtrack.com

Computer Crime & Intellectual Property Section, Computer Crime & Intellectual Property Section, USDoj.gov

Continue reading "US Senate Passes Bill that Would Update Cyber Crime Laws" »

Last Wednesday, a Hampden Superior Court jury returned with a verdict in a case of alleged unarmed robbery of a person 60 years old or older.

The cast of this particular drama included two defendants. They were Aretha Hallums, 40, and Donald Alford, 55. Cast in the role of victim was the elder Edward Foster, formerly of Springfield. The scene of the facts at issue was outside the Bay Street Social Club at Bay and Catherine streets, apparently an unlicensed bar.

Particularly helpful for the jury, I would imagine, was that both defendants testified in their own behalf…each contradicting the other.

Defense counsel set the stage during her opening statement, explaining that the jury would hear a case of "sex for money for drugs that went awry"
.
Mr. Foster testified that he went to the Bay Street Social Club, which he called a place to dance, socialize and drink, in on one particular November afternoon. "It wasn't a fancy place”, he explained. “It's kind of run down. It turns out, by the way, that it was also unlicensed.

Mr. Foster went on to describe how the club let him purchase drinks on a tab and "when your check comes you pay what you owe for the month." However, this simple happy scene changed. An afternoon of drinking and socializing turned to a beating when he was beaten and robbed when he went outside at Ms. Hallums' request. He identified Ms. Hallums and Mr. Alford as the robbers to police.

Ms. Hallums testified that she knew Foster and he had paid her for sex on a number of previous occasions. "Mr. Foster used to be my trick. ... I used the money to get high," she said. She further told the jury that Foster himself wanted crack and that he and Alford pooled their money, totaling $20, and the three of them went onto Catherine Street where they bought crack. She testified that after they smoked the crack, Alford demanded money from Foster, and then punched Foster repeatedly. On cross examination, she also admitted that she had been convicted previously of distribution of cocaine.

When it became his turn at bat, Mr. Alford testified that Foster asked him what he needed to do to get sex from Hallums and he told him to get crack. He said that after he divided the crack between himself, Foster and Hallums they separated. He said Foster and Hallums went to a back hallway and he thought they went to have sex.

He said he went back and saw Foster grabbing Hallums shirt, so, being the gentleman that he is, he grabbed Foster. He claimed that Foster then hit him. He simply hit Foster back and left.

The jury did not go for either defense scenario, however. After several hours of deliberation, they found Ms. Hallums and Mr. Alford guilty of assaulting Mr. Foster. They did, however, acquit Ms. Hallums on a second charge, assault and battery with a dangerous weapon… her cane.

Sentencing for the two is set for this Friday

Sam’s take:

This is not the typical age group for such money-sex-crack triangles. However, if you are looking for…let’s call it “love”…an unlicensed drinking establishment where you do not even have to pay for your drinks until the end of the month is probably not the best of places…especially if you are going to “step outside” with strange women who have a drug history, to buy crack. Many people come to that realization by the time they obtain the age of 60 years. Perhaps the unlikely descriptions are what brought the jury to its decision that Mr. Foster’s version was the more believable.

That is not what today’s blog is about, however. I was not there. I do not know. I do, however, know jury trials and how they work…or don’t work. So, that is what today’s missive is about – specifically your right to testify at your trial.

Many criminal defendants insist on testifying on their own behalf at trial. It is, of course, their right to choose to either testify or not to testify. Sometimes, it is simply the need to express their “side of the story”. Other times it is a fear that the jury will hold it against them if they do not testify.

The decision, however, needs to be made soberly and with an experienced trial attorney. There have been many cases in which defeat is clutched out of the jaws of victory by a defendant’s testimony. If the jury does not like you when you testify, or they decide you are not being entirely truthful with them, it will hurt you. I have seen this occur even in cases in which the jurors were ready to acquit because they did not believe the defendant had been proven guilty beyond a reasonable doubt…until he/she testified.

True, a jury will be told by the judge that it is the Commonwealth’s burden to prove the defendant guilty and that the burden does not shift. However, a defendant who testifies puts his/her own credibility on the line. If the jury detects falsehood they tend to ask themselves why the need for that falsehood. As I have written previously, it is the perception of the evidence that sways juries. If their perception is that they do not like the defendant because the defendant has lied to them, that defendant is likely to feel the sting of that dislike by way of guilty verdict.

A jury is also told by the judge that the defendant has a Constitutional right not to testify and that they cannot hold it against him/her. While in some cases it does make a difference if the jury does not hear from the defendant, I find that jurors usually are able to follow the judge’s admonition not to consider a defendant’s lack of testimony.

If you decide to testify on your own behalf at your trial…you had better know what you are doing and the risks involved.

When I was a prosecutor in Brooklyn, New York, in the 1980’s, I would love it when defendants would testify and contradict each other. It made my job easier. When defendants point the finger of blame at each other, the jury is usually happy to agree with both of them…and put them both away.

The full article of this story can be found at
http://www.masslive.com/springfield/republican/index.ssf?/base/news-16/122172218362420.xml&coll=1

Did you have a nice weekend? A few Museum Patrons in Hollis, New Hampshire didn’t. According to Friday’s news, a lawsuit has been filed against in Worcester Superior Court that is likely only the tip of the legal iceberg of their problems.

Fruitlands Museum has filed a lawsuit against former chief operating officer Peggy Kempton and her children for allegedly embezzling more than $1 million during the past eight years. Also named in the legal action is a Leominster accounting firm that allegedly did not notify museum officials about the alleged fraud.

The Complaint, filed Tuesday, accuses Peggy Kempton, Fruitlands’ former chief operating officer, and her children, of obtaining money and property by false pretenses, and converting or misappropriating Fruitlands’ assets. Ms. Kempton, who leased a cottage owned by Fruitlands at 144 Prospect Hill Road, next to the museum since October 1999, for $1,400 a month, is also accused of failing to pay rent. The lawsuit further accuses Solar & Kilcoyne, an accounting firm in Leominster, Massachusetts, of negligence and failing to alert anyone on the nonprofit museum’s board of directors about the alleged financial irregularities.

According to the complaint, Ms. Kempton was hired in July 1997 as the chief operating officer, and was the sole employee who handled check writing, taxes, donors, vendors, events and the museum store, along with communicating with Fruitlands’ bank and accountants. The alleged embezzlement is said to have begun in the early 2000s, when Ms. Kempton opened up credit accounts and obtained credit cards in her name and in the museum’s name. She is said to have charged items unrelated to her job, and then paid the cards off with Fruitlands’ money, diverting other museum funds pay her rent.

In subsequent years, the museum claims that Ms. Kempton made the scheme a family project as her children received credit cards in Fruitlands’ name (used for personal expenses of course) and received various payments to which they were not entitled. For example, in 2007, Mother Kempton diverted $29,121.09 to two of her three kids, claiming it was for work performed. Apparently her third child had taken the year off or was being punished.

Peggy Kempton’s annual salary was $67,000. In 2007, she allegedly withdrew approximately $40,000 in addition to that, and on top of the money allegedly obtained through embezzlement.

The complaint claims that Fruitlands so far has calculated that Ms. Kempton has diverted more than $1 million to cover credit card charges made by her and her children.

Ms. Kempton left the job abruptly in February 2008. Apparently, enough was enough. According to Fruitlands, irregularities in the museum’s financial operations were discovered in the spring. A law firm and a forensic accountant were subsequently hired.

Maud Ayson, Fruitlands’ executive director, said yesterday that she is “proud of our swift action (hiring auditors and the forensic accountant) to assess what we needed to do quickly to rectify procedures and move ahead.” She stressed that the museum is in solid financial shape, and is embarking on several new events and exhibits, including “Branching Out at Fruitlands,” a series of exhibitions and outreach programs with a dozen regional partners.

Fruitlands, a 94-year-old museum off Route 111 that has four distinct themes — transcendentalism, Shakers, American Indians, and fine art — is one of the country’s first outdoor museums. It was founded in 1914 by Clara Endicott Sears, and got its name earlier, when Bronson Alcott, father of author Louisa May Alcott, started a short-lived utopian community there.

The alleged embezzlement has been reported to the state attorney general’s office, which is also investigating, according to a Fruitlands spokesman.

SAM’S TAKE:http://www.altmanllp.com/lawyer-attorney-1322578.html

I hope that Kempton family members are either readers of this daily blog or have friends who are. If so, one expects that, having learned of this investigation (one imagines awhile ago), they have retained experienced counsel to prepare for the onslaught of the filed civil complaint as well as the almost-surely upcoming criminal indictments.

The difference between a civil action and a criminal action confuses many people. A civil complaint, such as the one filed last week, is a lawsuit brought by one entity (the plaintiff) against another (the defendant) for damages allegedly caused by that defendant. At issue is usually money. A person does not go to jail or get a criminal record as a result of a civil action. A criminal action is one in which the government (state or federal), as plaintiff, brings a complaint against a defendant claiming a violation of criminal law. While financial restitution might be a part of a particular sentence, it is not usually what is hanging in the balance. At risk is the defendant’s criminal record and very often the defendant’s freedom. In other words, it is for criminal matters that a person faces incarceration.

The same allegations can result in both a civil and criminal action. For example, if you get angry with your neighbor one day and decide that burning his house down would teach him a good lesson, you are likely to be facing a civil action (the neighbor and anyone else burnt down by the fire seeking recompense for their damages) as well as very serious criminal action for arson and a plethora of other charges. Not advisable, by the way.

In this case, Fruitlands has filed a civil suit to get back the money they claim the Kemptons embezzled, or stole, from it. The Attorney General’s Office, having been notified of this matter, is said to already be investigating. I would be extremely surprised if criminal charges are not forthcoming. The rules and prcedures for civil and criminal actions are different in many ways, and it is easy for a defendant to be pulled in various directions when faced with hard decisions in maneuvering both at once; an attorney knowledgeable in both civil litigation and criminal law is critical in best protecting the Kempton’s interests in this matter.

Under our system of law, while the burden of proof is different, a defendant in either a civil or criminal matter is presumed innocent unless and until they are proven guilty (or responsible). Nowhere is this presumption more important than in civil and criminal prosecution for a white collar crime such as that which is alleged here. There are many cases in which simple mistakes or misunderstandings as to what a business official was authorized to do resulted in civil and criminal prosecution. Further, particularly in the case of the Solar & Kilcoyne, the accounting firm in this matter, I have handled many matters in which simple oversight or mistakes are alleged to be part of a criminal prosecution for a criminal conspiracy. In this matter, I would expect that the government, upon bringing forth charges against the Kemptons, will either include charges against the accounting firm, or pressure the accounting firm to give evidence against the Kemptons in order to keep their license intact…and liberty…intact.

The bottom line as we begin this new week in September? The same old lesson. Treat any suspected investigation such as this with the greatest of gravity. Get knowledgeable counsel as soon as possible to guide and protect you.

Yes, a good lawyer is expensive. But liberty is priceless.

Samuel Goldberg is the senior defense attorney at the firm of Altman & Altman, P.C. A former prosecutor in New York, he has worked as a defense attorney in Boston over 18 years. He frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network

The full article of this story can be found at
http://www.telegram.com/article/20080919/NEWS/809190533/1116

Last February, it would appear that the political scene at Bridgewater State College got a bit heated. Bomb and death threats began being posted around campus. On September 2nd, 2008, as the country’s major parties were celebrating their conventions, a former Parliamentarian was being arrested for her alternative methods of announcing her platform.

Former Student Michelle Fortune, 47, of East Bridgewater, had held the post of Parliamentarian, which is a high ranking position within a campus leadership organization called the “Student Government Association”. She was arrested at her home on six counts of threats to kill, six counts of vandalism, six counts of making a bomb threat, disturbing the peace, and creating a disturbance at a school. Unfortunately, political fever being what it is, the arrest did not go terribly smoothly and she was subsequently charged with resisting arrest.

The threats made on February 26th and 27th came in the form of six messages handwritten on several bathroom walls around the BSC campus. February 28, 2008 was specified as the date attacks would occur. Investigators employed the services of a handwriting expert in hopes of cracking the case. According to Chief Tillinghast of the BSC Police Department, "more handwriting samples were needed so a search warrant was obtained. BSC Police executed the search and seized numerous documents from the suspect's home. The suspect was found to be responsible."

In response to the threats, the campus police department had temporarily amped up security. "The whole department was on campus that day (Feb.28). Police walked through the buildings and had lunch with concerned students," Tillinghast explained. President Dana Mohler-Faria, whose life was directly threatened in the messages, made the decision to go about his normal routine on campus for the duration of the crisis. “I made it a point to be visible on campus . . . to demonstrate that we can't live in fear," Mohler-Faria told reporters, just days after the threatening messages were found. He was assigned an undercover police officer who remained at his side.

"The threats were general, at first. They contained words that said 'murder, murder, murder,' 'kill' and there were references to Virginia Tech. On the second day the threats were made towards the president," said Chief Tillinghast.

Sam’s take:http://www.altmanllp.com/lawyer-attorney-1322578.html

“Murder, murder, murder” is not a party platform that is taken likely these days. One may think that, especially on a college campus, a student’s right to free speech is indulged to the “nth degree”. Unfortunately, recent years have seen too many tragedies for that to remain the case.

While most schools will allow, even encourage, political unrest, activism and many types of protest, this is not one of those protected forms of expression. Threats are threats and, both in school and out. Making them is a crime. Defacing public, or school, property is also an offense. However, slogans like, “The dean is a ding-dong” will be generally treated much differently than, “I am going to string up Dean Ding-Dong on February 28th , between the hours of 2 and 4 in the afternoon and gut him like a pig”.

As well they should be.

In the meantime, our Disgruntled Party candidate is allegedly nothing if not consistent. According to the police, she resisted arrest. We do not know the specifics of that scene, but, as this daily blog regularly suggests, taking a bad situation and making it worse by challenging law enforcement is not the wisest course of action.

So, as we end another week, consider a platform more likely to win posts other than Defendant;

1. Your rights to free expression are limited. Do not make threats to commit a crime. They will likely be taken seriously and you will be awarded the Commonwealth Bracelet Of Shame and a trip downtown;
2. As they return to school this fall, make sure your kids understand the limits on their right to save the world. Threats or other crimes from younger students tend to be treated just as seriously as those from the older ones.
3. If you find you are the subject of an investigation, or if the police are at your door, do not resist, do not fight and do not threaten. Go quietly and get a lawyer.

Have a good and law abiding weekend!

The full article of this story can be found at
http://media.www.bsccomment.com/media/storage/paper662/news/2008/09/17/CampusNews/Campus.Threats-3439014.shtml

Last night, all major crimes of the area having apparently been prevented or solved, Haverhill police officers set their sights on their admittedly decreasing prostitution concern. It was said to be a lucky break in their war against drugs.

They ended up arresting a “major cocaine dealer” who had a drug sales ledger containing the names of "prominent'' Haverhill residents. The ledger, according to the police, will kick off an investigation that could lead to a series of arrests.

Christos Eleftheriou, 45, of Haverhill, was arrested at 8:11 p.m. after he propositioned a woman police officer for sex during the prostitution sting, said police spokesman Sgt. John Arahovites. He was charged with sexual conduct for a fee and brought to the police station, where police found 16 grams of powdered cocaine in five bags on him with a street value of $16,200, along with $340 in cash, Sgt. Arahovites said.

The officers then got a search warrant for Eleftheriou's vehicle, a Ford Explorer, and found drug scales, $2,800 in cash and the ledger containing the names of several people. "Given the evidence seized, it appears he is a major cocaine dealer in Haverhill,'' Sgt. Arahovites said. "There were the names of several prominent people in the ledger.'' According to Sgt. Arahovites, the new information will widen their investigation beyond Eleftheriou, and that other arrests are possible.

Eleftherious’s reward was additional charges involving trafficking in cocaine and is scheduled to be arraigned today in Haverhill District Court.

Sgt. Arahovites said Eleftheriou is well known in Haverhill, and that he and his family own and operate the Haverhill House of Pizza sandwich shop in Riversedge Plaza next to Haverhill Stadium. He went on to explain that the arrest linking Eleftheriou to drug sales was "very lucky'' because it came as police conducted a relatively routine prostitution sting using plain clothes women officers.

"Even though the incidents of prostitution are down, we want to keep it down,'' Sgt. Arahovites said of why police do the stings several times a year. He said the department conducts stings about four times a year and they have been successful in keeping down the number of prostitutes working the streets of Haverhill and the number of men who are looking to pay for sex.

Apparently eager to give the specific location of this scourge on the public streets, he explained that last night's sting started just after dark in the inner-city area of Winter, Portland, Welcome and Cottage streets where prostitutes have been known to work. The area is at the edge of the Acre neighborhood and just north of downtown. The stings usually begin with police getting real prostitutes off the street. Then, the competition having been removed, having women officers in plain clothes walk the area. When men drive up and proposition the women officers for sex, they are arrested, he said.

Sgt. Arahovites said the sting was run by police Captain Alan Ratte, two women officers and six undercover detectives

Sam’s take:http://www.altmanllp.com/lawyer-attorney-1322578.html

Trying very hard to sidestep a multitude of comments about the officers getting “lucky” going after what has been said to be the world’s “oldest profession”, I will steer my comments to the misadventures of Christos Eleftheriou. As one would imagine, his problems have now increased well beyond anyone in adult entertainment can help him with.

First of all, the man now becomes a human footnote in my long-standing argument in these daily blogs suggesting that it is best not to take a bad situation and make it much, much worse. Obviously, there are certain risks involved in approaching street level prostitutes. For example, you may run into the police in a less than pleasant manner. Might I suggest that if you are going to so engage, you might not want to bring thousands of dollars in cash, drugs, drug paraphernalia and your drug-related paperwork with you? In fact, any paperwork reflecting any illegal activity is far from wise. Finally, if you are “well known” in the area, these bad ideas are even worse.

The unfortunate Mr. Eleftherious is now caught in the web of criminal justice and I would wager that he is being given the opportunity to decide which role he wishes to take. One option is that he can simply be satisfied with playing the role of defendant and sit back watching the arrests roll in from investigations inspired by his ledger. This particular show will have a certain amount of suspense for him, waiting for the climax, which will be the forming of a conspiracy prosecution linking the new arrestees with him in which he will be charged with everything everyone else did in furtherance of the conspiracy.

Mr. Eleftherious will be given another option, however, if he has not already been so offered. He will be given an invitation to join the prosecution in its quest and assist them in building and prosecuting their case(s). This helpful hand of prosecution will bring its own risks of a more obvious kind.

You know, it might have been easier (and cheaper) to simply call an escort service…!

By the way, is there anyone else out there curious about the fact that upon coincidently happening upon the “well known” Mr. Eleftherious walking around with over $16,000 in drugs and money on his person, that the officers suddenly knew to seek a search warrant for only his car and not his home?

I know, I’m too suspicious. Been in the trenches for too long.

The full article of this story can be found at
http://www.eagletribune.com/punewshh/local_story_262012349.html?keyword=topstory

Some people have not been taking this blog to heart and so apparently did not believe that it was not good to take a bad situation with law enforcement and make it worse. Now, 19-year-old Falmouth resident, Tevis Yarmala, faces multiple charges after he allegedly struck and tried to stab a Falmouth police officer in the face with a stick during a traffic stop last week.

Mr. Yarmala is alleged to have run a red light. First strike. Observing this, Patrolman Christopher Bartolomei , according to police reports, pulled the vehicle over. Mr. Yarmala is said to have greeted the officer by name. Second strike. When the patrolman “detected” the odor of burnt marijuana and asked about it, Mr. Yarmala admitted to smoking marijuana at a friend's house. Third strike.

In this particular game…not out yet.

Mr. Yarmala was then ordered out of the car. His response was apparently to strike Officer Bartolomei in the head with his elbow when Officer Bartolomei attempted to remove a plastic bag containing marijuana from Mr. Yarmala's pocket. A struggle ensued in which Mr. Yarmala is said to have made "moans and groans as if he were possessed."

Strike out.

A passing motorist came to the officer’s assistance and the two were able to subdue Yarmala sufficiently so that he could be handcuffed with his hands in front of him. Mr. Yarmala, who was not ready to give up the game, is reported to have reached above his head, grab a four inch stick and attempt to stab Officer Bartolomei in the face. When additional police arrived, the Commonwealth’s newest guest was handcuffed with his hands behind his back and shackled. Ever the optimist, he continued to put up a struggle.

But it was “game over”.

During the fight, Mr. Yarmala was apparently able to successfully grab the bag, rip it and scatter some of the contents on the grass. A portion of the marijuana that had been scattered was recovered. It, along with portion still in the bag, totaled 60 grams.

Officer Bartolomei injured his knee during the fight when he crashed through a stone wall. He was treated at Falmouth Hospital and told that he may have sustained ligament damage.

Mr. Yarmala, aka Defendant, was charged with possession of a class D substance, possession of a class D substance with intent to distribute, violating drug laws near school or park, assault and battery on a police officer, assault with a dangerous weapon, disorderly conduct and several traffic violations. An arrest warrant had already been in force at the time of his arrest, the result of an OUI and leaving the scene of an accident on August 28th.

Sam’s take:

Well, at least Mr. Yarmala had more to be afraid of than simply getting a traffic ticket given the outstanding arrest warrant. However, as discussed in earlier blogs, all he accomplished was to make a bad situation infinitely worse. The fact is, even if there is a warrant out for your arrest, engaging the officer in a struggle is going to make your plight much, much worse. And, by the way, if you are in mid-struggle with the solo police officer…when a bunch of his fellow officers show up…your chances at success do not increase, they decrease. And when you are cuffed and shackled? It is a strong sign that you are probably not going to win the struggle. As they say in “Star Trek”, “Resistance is futile”.

Actually, Mr. Yarmala’s mistakes began long before last week. First of all, leaving the scene of an accident in which there was damage is a crime in itself and is seldom successful. He apparently was aware that there was an arrest warrant out for him. I cannot tell you how often I meet a client who was aware they had such a warrant, but thought they could somehow outlive it without having to answer to it. These meetings often take place in jail, by the way. So far, at least in my more than twenty years of experience in the Criminal Justice Trenches, this has not been a gamble that pays off. Things get much worse if you do not address the warrant yourself voluntarily before the good folks in blue show up at your door. So, if there is a warrant out for your arrest, deal with it before it catches up with you.

It was a mistake for “You Can’t Catch Me” Yarmala to go through the red light or to drive after smoking marihuana . Those are really so obvious they are barely worth mentioning. So, let’s go to the next stop (no pun intended). Especially if you are driving around with an arrest warrant dangling over your head, the wiser course is to not have some leftover drugs in your pocket. If pulled over under these circumstances, it is not the best of judgment to be a wise-guy and happily greet the officer by name. And if you found these things to difficult to follow…you really do not want to answer happy little questions like if you had been smoking marihuana. There is that whole right to remain silent and get a lawyer thing, remember?

And then there is that attacking of the police officers problem. Bad idea. You will not win. The only rewards you can hope for are more charges and greater injuries.

By the way, assuming he was not merely trying to fit in some planting, Slugger Yarmala’s attempts to sprinkle out the marihuana was really a fool’s errand. First of all, as discussed in earlier blogs, the drugs do not have to be found physically on you for you to be successfully prosecuted for them. Even if they did, if they had already been observed in your pocket, dumping them in front of the officer does not usually change history.

So, let’s review the lessons of today’s daily blog:

1. If you have an accident causing property or physical damage, do not simply leave;
2. If there is a warrant out for your arrest, get an attorney and deal with it immediately, if not sooner;
3. Do not drive stoned or drunk and do not carry your stash around with you while out for a drive;
4. Do not engage the officer who stops you in clever repartee like calling him or her by name or telling them that you just smoked pot. Answer the questions you have to answer (as in give your license and registration) and wait for a lawyer to assist you;
5. Do not attack, fight, struggle with, try to kill, attempt to outrun, drive over, stab, dump drugs in front of, or even argue with the officer. Do what you are told and minimize damage; and finally,
6. Read this daily blog and take its lessons to heart!

The full article of this story can be found at :
http://www.wickedlocal.com/falmouth/archive/x332631811/Falmouth-traffic-stop-results-in-scuffle-multiple-charges

In Holyoke, a 14-year-old boy was convicted of starting the 9-alarm fire that burned down the Parsons Paper Mill building earlier this summer. The teenager will be placed in state care until he turns 18. This is the maximum sentence allowed for juveniles in Massachusetts.

According to Holyoke Fire Chief David LaFond, the boy went into the closed paper mill and used cardboard and paper he found there to ignite a fire. It took over 100 firefighters from 19 departments to put out the flames. The Parsons Paper Co. is a 313,000 square foot building that encompassed two city blocks.

Arson
According to the Uniform Crime Reporting Program, arson is the malicious and intentional act of burning or trying to burn a home, motor vehicle, public building, airplane, or personal property belonging to someone else.

2004 US Juvenile Arson Statistics say that since 1994:

• Half of all of the suspects arrested for arson were juveniles
• 6-8% of juveniles arrested for arson were under 10 years of age.
• According to the National Fire Protection Association's "Children Playing with Fire," there were 41,900 reported child experimentation fires.

Reasons experts give for why juveniles start fires include curiosity, entertainment, and to intimidate others.

Arson is considered a very serious crime, and Massachusetts prosecutors will aggressively pursue anyone that is charged with illegally setting a fire that destroys or damages property or vegetation.
Juvenile convicted of starting huge Holyoke fire, BostonHerald.com, August 29, 2008

Investigators say massive Holyoke fire was deliberately set, MassLive.com, June 29, 2008

Juvenile Fire Setting: The Preventable Arson, Iowa Dept of Public Safety

Related Web Resources:
Arson, FBI

Continue reading "14-Year-Old Massachusetts Teen is Convicted of Setting Nine Nine-Alarm Fire at Holyoke Paper Mill" »

In Worcester Superior Court, testimony is scheduled to begin today in the trial of a Berlin man charged with raping and trying to suffocate a woman last year in a West Boylston motel. The defendant, Alex F. Scesny, 38, has also been identified by law enforcement as a “person of interest” in the unsolved slayings of several area prostitutes. Today he is facing trial on charges of rape, assault with intent to murder, assault and battery, and assault and battery with a dangerous weapon (to wit: a pillow) allegedly occurring on March 17, 2007.

In April, District Attorney Joseph D. Early Jr. labeled Mr. Scesny a “person of interest” in the 1996 strangulation death of 39-year-old Theresa K. Stone in Fitchburg. Cold case investigators turned their attention to Mr. Scesny after a DNA profile derived from biological evidence recovered in the West Boylston rape investigation was shown to match a genetic profile from a swab taken during Ms. Stone’s autopsy, according to a state police affidavit filed in court. He later described Mr. Scesny as a “person of interest” in the deaths of five other women who were known to have worked as prostitutes in the Main South section of the city.

While Scesny's DNA has only linked him to Theresa Stone's murder, the similarities between the cases has stirred fears of a possible serial killer.

Scensy's lawyer says media attention surrounding his client's name would make finding an unbiased juror in the West Boylston rape case difficult.

He has not been charged with any of the killings.

Yet.

Sam’s take:

Scensy’s lawyer has articulated a valid concern; one which puts into question his client’s ability to get a fair trial. Unfortunately, it is a bit late in the game to be raising it now.

First of all, let’s look at the situation from the perspective of Mr. Scensy. I understand that many readers are not very likely to feel any sympathy for him under the circumstances. That is part of the problem. Our Justice system declares that a criminal defendant is presumed innocent unless and until proven guilty beyond a reasonable doubt. In case on trial, he is merely accused of rape and attempted murder. Further, he has not even been charged with the other crimes. Law enforcement’s success in matching his DNA to one of the murders, while sure to be compelling if and when he is charged, is not something to even be considered in connection with the current trial.

The danger here to Mr. Scensy is that public knowledge of the alleged connection to these other uncharged matters could taint the jury. When training less experienced attorneys in trial advocacy, I stress evidence presented in the courtroom does not, in itself, sway juries. It is the perception of the evidence that makes the impact.

Therefore, while a judge may warn the jurors not to be effected by outside publicity, the individual juror cannot help but be influenced by, at least, the shift in perception caused by the publicity to some extent.

But let’s turn our focus around. “Ok, Sam”, you say, “I am not a juror. I can be as biased as I want to be and, frankly, I don’t care if this guy gets a fair trial or not”.
Unfortunately, you are wrong. You care very much about his getting a fair trial for three reasons. First of all, if he is found guilty and the appeals court finds that he did not receive a fair trial, his conviction will be overturned. If he is actually guilty, I would imagine you do not want that to happen…especially if you live in the area.

The second reason you care is based on my assumption that you care about the victims in these various crimes. First of all, if the conviction is overturned, the rape victim has to go through the prosecution all over again…or simply be forced to see her assailant go free. There are also five other deceased murder victims, and their families, to consider. What if the potential jury pool is so tainted that any successful prosecution for their murders becomes impossible? I would suggest we owe them better…regardless of your view of what they did for a living.

Finally, you care about the right to a fair trial for reasons having to do with you and those you do care about. As regularly discussed in this daily blog, it is very easy to find oneself looking down the barrel of a criminal prosecution. This is true whether you are actually guilty or not…things happen. I sincerely hope that you or a loved one are never put in the position of the government’s changing your last name to “Defendant”. However, if it should happen you do not want to put the government to the test in a system that has relaxed its concern about fair trials.

If you are ever forced into a position where you are facing charges, or an investigation which could lead to criminal charges, you need an experienced attorney involved as soon as possible who knows the system and knows the pitfalls that lay in your path. At the earliest possible moment, You need someone who can not only defend you, but can guide you through what can easily become an unfair and unforgiving system. The delay can be catastrophic to your rights…and to your freedom.

The full articles of this story can be found at :
http://www.necn.com/Boston/New-England/Jury-selection-begins-for-man-charged-with-rape/1221523743.html and http://www.telegram.com/article/20080916/NEWS/809160555/1006/NEWS07

Have you ever heard the saying “the lunatics are running the asylum”? We begin the week with a story about an interesting twist on it.

It was last night. Sunday night. All around the Commonwealth, people were preparing for a new week of work and school. The clock struck 9:30pm. Perhaps you were getting ready to retire for the evening, resting up for what the week would bring. An ambulance patient in Springfield, Mass., however, had other ideas. He decided to overtake and commandeer the ambulance.

The unnamed joy rider was being taken to Mercy Medical Center. The gentleman had been reported as acting erratically. Suddenly, he decided to turn things around. He attacked and started beating the medical technicians, successfully chasing them out of the ambulance on Chestnut Street. Once the technicians jumped ship (or ambulance), he took control of the vehicle and began driving. Apparently a stickler for consistency, he drove erratically through Springfield, hitting a Peter Pan bus, a car and then a parked car on Main Street, said Springfield Police Lt. Robert Strzempek.

The chase ended when the patient drove on the wrong side of Main Street hitting a small black car head-on, pushing it 50 feet north from Congress Street to Emery Street. The unauthorized self-transport driver is said to have received shoulder injuries.

Now facing a variety of criminal charges, including motor vehicle assault and assault and battery on the medical technicians, it is not indicated whether the driver is behind bars or awaiting the call of Justice in the intended destination…under, hopefully a better prepared, observation.

SAM’S TAKE:

In case you are confused....this was not the Springfield where “The Simpsons” takes place; it was in Massachusetts and, while clearly animated, it was not a cartoon.
Obviously, the story could have ended incredibly tragically and there is really nothing funny about mental illness. However, the story presents a few questions that you might find interesting.

The first, and probably most obvious, question is how this could have happened. The ambulance staff knew they were transporting someone who was acting “erratically”, apparently for observation. How the patient was able to force them to jump out of the ambulance and be able to take control of the ambulance is just a tad beyond me. I would have imagined it expected that someone who was being transported because he was erratic might act....erratically. But then, it is Monday morning and I have not had my coffee yet...!

The most interesting question of this story is, now that they have caught him, what are they going to do with him? Maybe I am jaded, but it seems to me that there are likely to be serious questions of criminal responsibility and competency to stand trial. In the meantime, if he needed to be observed and perhaps hospitalized, is it going to do anyone any good to keep him in jail awaiting trial or will they simply keep him at the hospital...where he was being transported in the first place?

I know that I try to answer questions, not simply ask them, in this blog. It is meant to be informative, albeit in an entertaining manner. But, sometimes, the lessons of the day are really questions that remain, due to the human condition, questions.

If you are insistent on a more traditional lesson, I will tell you that it is illegal to forcibly take control of an ambulance, drive off, and smash into other vehicles.

Samuel Goldberg is the senior criminal defense attorney at the firm of Altman & Altman, P.C. A former prosecutor in New York, he has worked as a defense attorney in Boston over 18 years. He frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network

The full article of this story can be found at
http://www.masslive.com/news/index.ssf/2008/09/springfield_ambulance_joy_ride.html

In New Bedford, Massachusetts, what appears to be a man walking with a figurative “Please Lock Me Up Forever” sign on his back is beating incredible odds.

The man, Allen Thurston, 36, is a convicted level 3 sex offender. After he allegedly assaulted his girlfriend, he was arraigned yesterday in New Bedford District Court on an assault and battery charge.

The prosecutor pressed the court to revoke Thurston’s bail; the judge would not do so. Police, naturally, are said to be “concerned” as to why his bail was set so low. Their reasons seem logical enough:

1. He has a very lengthy criminal record;

2. He was of convicted of rape of a child by force in Brocton several years ago;

3. He failed to register as a sex offender in 2004, for which he was arrested and served 30 days; and

4. He failed to register again in 2005 and was arrested by Fall River Police. He served six months in the house of correction.

To many, this would be enough. Not for Mr. Thurston, though. Last week, he was he was involved in the domestic assault and battery. He was arraigned and released on personal recognizance. Then, this past Wednesday, when he was supposed to register as a sex offender again…he failed to do so again.

He was spotted by New Bedford Police and became involved in a foot chase. He struggled with police and then was arrested.

Mr. Thurston is currently being held on $1000 bail.

SAM’S TAKE:

It may be that the New Bedford branch of Massachusetts Criminal Justice appreciates Mr. Thurston’s talent for consistency. He is certainly beating the odds. However, some of Mr. Thurston’s seemingly good fortune can be explained by the reason for bail.

The reason for bail is to ensure that the defendant shows up to court to answer the charges against him or her. In this case, Mr. Thurston apparently has a very lively criminal record. However, if he is still being released on relatively low bail, I would imagine he has the habit of showing up for court. As discussed yesterday, this is extremely important when in a position to argue for low bail.

It is noteworthy, however, that at the time of the article, he was still being held on this bail. While he is certainly fortunate not to be held without bail, the $1000 set seems to, at least, be delaying his return to the streets.

As for the previous charges for which Mr. Thurston served time…well, it appears to be just that. He already served his sentences. There is no indication that there is an ongoing probation or parole status in which he is facing revocation.

We do not know the facts behind the alleged domestic assault and battery. I can tell you from experience that there are many reasons for which the court might find the allegations less than compelling…or believable. We do know, however, that despite his record, Mr. Thurston still enjoys the presumption of innocence.

This all being said, the court is entitled to hold a defendant without bail if he is arrested while out on bail. In this case, Mr. Thurston seems to be in the glow of some guardian angel. While he us out on bail, he has now been arrested of a few new crimes. Failing to register (let alone for the third time) is a crime. Resisting arrest is a crime. Assault and battery on a police officer is a crime.

Yet, Mr. Thurston is out to enjoy another day.

We do not know all the facts and circumstances of his matters. Maybe he has a great attorney. Maybe he is simply misunderstood. Maybe he is someone who should be playing the lottery.

In any event, if you are facing any of the problems faced by Mr. Thurston, I would suggest you not expect to follow in his footsteps. Whatever the reason, he is certainly beating the odds. Get an experienced lawyer, be careful and treat the system seriously.

It is almost certain to treat you seriously.

The full article of this story can be found at
http://www3.whdh.com/news/articles/local/BO87847/

It has been a bad week so far for Massachusetts drug conspiracies. First, members of a joint Anti-Crime Task force confiscated 500 pounds of marijuana and more than $180,000 in cash from a weekend drug bust in Swansea, Massachusetts. The marijuana alone has a street value of more than $600,000. Then, in Holyoke, an Easthampton man and four Holyoke men were arrested Tuesday on charges including possession of heroin and possession of a loaded firearm.

After a month long investigation and 24-hour surveillance, John C. Mendonca, 38, of Fall River, who had been living at an East Providence hotel, was pulled over Saturday by an East Providence police officer. A search of his vehicle found prescription drugs, several cell phones and a box containing a large amount of cash. Search warrants were taken out for four of Mendonca’s known haunts, including two locations in East Providence and two in Fall River. The searches revealed a 2001 Dodge Caravan with 500 pounds of marijuana, a money counting machine believed to be tied to Mendonca’s alleged drug operation, 10 cell phones and a potpourri of additional drugs.

Mendonca is currently on federal probation from a 2002 drug bust. Swansea Deputy Police Chief Robert Furtado said police believe there were two men involved in Mendonca’s drug operation, but no one else has been charged. Furtado said because Mendonca was on federal probation, federal marijuana trafficking charges are being sought. Furtado also said that this was the biggest drug bust he said he has seen in more than three decades on the force .

Meanwhile, Holyoke law enforcement arrested Timothy Lipski, 21, of Easthampton and Manuel Quinones, 38, Alexander Sanabria, 32, Joseph Cartagena, 20 and Alejandro Ortiz Gonzalez, 24 all of Holyoke on Tuesday afternoon. The arrests were accompanied by the discovery of 132 bags of heroin with a street value of $1,320, $1,402 in cash, two guns with live ammunition, drug packing materials, and a small amount of marijuana.

Lipski, Sanabria and Ortiz Gonzalez are charged with possession of heroin. Sanabria is also charged with possession with intent to distribute heroin near a school zone or public park. Quinones is charged with possession to distribute heroin near a school zone or public park. Cartagena is charged with possession with intent to distribute heroin near a school zone or public park as well as two charges of possession of a loaded firearm and ammunition without proper identification.

Holyoke Police Chief Anthony R. Scott said the department had been conducting an investigation on the five men since August. Complaining that the bail set was too low, Scott said, "It is a shame that arrestee Timothy Lipski with his 11 rides on the Hampden County merry-go-round of justice was released after paying his bail of $100 plus his $20 Clerk Magistrate fee," Scott said. "Bail on the individual who was in illegal possession of the two firearms was set only at $5,000." He went on with, "These individuals have ridden on the Hampden County merry-go-round of justice for over fifty times and they are still walking the streets of our community while dealing in death and destruction," and finally ended with " Are the police and the assistant district attorneys the only individuals within our criminal justice system who care about the community?"

SAM’S TAKE:
Police Chief Scott’s plea to the heavens reveals something important about the different perspectives of the criminal justice system. As far as the police and prosecutors are concerned, all these defendants are guilty of all crimes charged and probably many more that are not charged. In fact, this was most likely the case early on in each investigation before they even made the arrests. However, the United States Constitution and the Massachusetts Declaration of Rights talk about inconvenient things like the presumption of innocence. To law enforcement, such “legalisms” are merely hindrances (until they, themselves find themselves investigated or charged) to their holy war against evil. To the rest of us, however, it is the necessary backbone of what calls itself a fair justice system.

We do not know all the facts and circumstances behind the charges. The chief purpose of bail is to ensure that the defendants appear in court while their innocence or guilt is being determined. If, indeed, these defendants have been on the “merry-go-round” that so upsets Chief Scott, their records should reflect whether they have a history of showing up in court to face charges. While I would not be so quick to call the bail imposed “chump change”, the fact that it is not higher, or that the defendants are not being held without bail, probably indicates that they were not on probation, did not have a bad record or even, dare I say it, there could be something wrong something wrong with the charges?

Ahh, if only the chief’s defendants could be more like Mendonca of Fall River! Mendonca had the good grace to be on probation and so is being held.

And this comparison is the main part of the today’s daily lesson.

The backdrop is clear…while we may talk about the presumption of innocence, law enforcement really does not subscribe to that particular formality. It is therefore unlikely that , if arrested, you are wise to try to “cooperate” unrepresented and rely on promises of “going easy” on you. Once you walk into that courtroom and deal with the issue of bail, the issues are going to be your history and whether you are likely to show up in court (other than in matters which involve dangerousness). Whether you tend to show up or are on probation will be what most likely dictates the bail imposed. I cannot tell you how many clients I have had simply shrug when asked about their record of defaults, advising me, “Oh, that’s ok. I cleared up that one a few months later”. It is the existence, not the circumstances or later cure of the default that causes a hike in bail. Bottom line: show up or you will be paying for it in the future.

Which brings us to the sentence of probation or its cousin, parole. Many people, including defense attorneys without much experience, seem to feel that getting probation as a sentence is a gift. Sometimes it is. Sometimes it is not. The fact is that if you are on probation and you are arrested (even if that arrest turns out to lead to a dismissal or acquittal), you are likely to be held on the new arrest without bail and held in violation of probation. The violation is the arrest itself. The court usually does not wait to see what happens with the new case to decide whether your probation violation will land you behind bars. In most cases, you will be found in violation long before you even get near trial in the new matter and likely held without bail on the probation surrender…or simply sent to jail to serve the sentence which you avoided by getting on probation.

These are all intricacies of the system that can change your life and make the difference between freedom and incarceration. If you feel you are being investigated, or have been approached with either questions or the bracelets of shame by law enforcement, you need an attorney with experience who can guide you through and increase your chances of freedom through all these issues.

The full articles of this story can be found at
http://www.masslive.com/news/index.ssf/2008/09/five_men_arrested_in_holyoke_d.html and
http://www.heraldnews.com/police_and_fire/x348018887/Police-seize-500-pounds-of-marijuana?view=print

According to this week’s Massachusetts Lawyer’s Weekly, the Commonwealth is having a tough time with certain …irregularities… regarding Probate Court staff. A few weeks ago, Middlesex County’s Register of Probate was arrested for allegedly stealing cash from government copying machines. This week, in Suffolk County, a state auditor's report is raising questions of malfeasance in Register of Probate's Office.
According to the report, $12,885 in "voided" transactions disappeared from cash registers in the office of Richard P. Iannella, the register for the Suffolk Probate & Family Court, between July 2000 and June 2002. In addition to not complying with regulations that secure cash flow, Iannella is said to have failed to fill out a form explaining the shortfall, the report states.

Iannella, a former Boston city councilor who has served as register since 1996, said the Suffolk County District Attorney's Office has investigated the matter. "I'm certainly not at liberty to discuss with you an investigation," Iannella said, "but we turned the office upside down. We made every effort possible to determine how the monies were stolen, and unfortunately it ended up inconclusive."

When asked about his failure to submit a form explaining the unaccounted-for shortfalls to the Trial Court or the state auditor's office, as required by law, Iannella explained, "I had no idea what the form was. Nobody ever told me about the form. I thought I did the right thing by calling the DA's Office."

Apparently, though, even after being informed by the audit team that he needed to submit a "Chapter 647 form," Iannella, citing the DA's investigation, has not filled one out. .

When contacted by Lawyer’s Weekly, the prosecutor’s announced that it would neither confirm nor deny whether an investigation had been conducted.
When asked if he could offer proof that an investigation had, indeed, taken place, Iannella became irate.

"My family has been in public service for this city, in this state, for the better part of 60 years," he fumed. "We've never had one blemish against our name. Shame on you, and shame on Lawyers Weekly, for making an allegation that I am not telling the truth that I went to the DA." One might have assumed that he would be more insulted by the allegations regarding the missing money.

The missing money, by the way, is not the only issue raised in the report. The audit team also found that Iannella's office did not comply with regulations to keep its cash flow secure; that "supervision, monitoring, guidance, and training of staff are all lacking"; and that the office's internal control plan, used to combat possible malfeasance, "does not communicate integrity and ethical values."
In his written response to the report, Iannella said he had not been aware of many of the Trial Court regulations.

The report comes on the heels of the arrest of Middlesex County Register John R. Buonomo, following an investigation by the DA's Office in that county in which hidden cameras caught Buonomo allegedly taking money from copying machines.

SAM’S TAKE:
We can laugh at the spectacle of high level court personnel defending allegations of wrongdoing by claiming ignorance of the court’s own rules, but there is a bit of “There but for the grace of God go I…” that should be felt.
Because this could easily happen to anyone.
We aspire to positions of authority. However, when we get there we are sometimes faced with so many rules, laws and regulations that it is impossible to know them all. Consider the CEO who thought it was “ok” to not file a piece of paper…or simply forgot. And then, it turns out, the non-action is considered as part of a cover-up because there was a shortfall somewhere.
The fact is that the more authority in our positions, the more we are deemed to know. Further, in no cases is ignorance of the law a defense. To put it into the more popular parlance of the day, I will quote the “Spider-man” movies, “ With great power, comes great responsibility”.
Don’t misunderstand me…some people intentionally engage in criminal acts too! Sometimes these people, getting the sense of an upcoming investigation, will try to cover their tracks by setting the scene so that it appears that someone else (whom they can later turn on in return to a pat on the back and a generous plea bargain by the prosecutor) was complicit.
So, while it may be amusing to watch public officials jiggle in the spotlight, apparently doing what they are often seen shaking their heads in disgust at others accused of either misfeasance, malfeasance and white collar crime…do not laugh too hard. Instead, take a lesson. If you ever believe there is an investigation into anything even touching your own actions, and you feel there is even a chance you could be pulled in with the criminal justice net, do not wait for the knock on the door with the bracelets of shame. Get an experienced attorney involved as soon as possible!
The full article of this story can be found at
http://masslawyersweekly.com/index.cfm/archive/view/id/444801#

According to today’s Lynn Item, Carmet Cruthird of Lynn was arraigned Friday on attempted murder charges after he allegedly stabbed a man outside a Liberty Street apartment building the day before. However, the circumstances appear a bit sketchy and are likely to not be resolved until the time of trial…which usually takes about a year.

Mr. Cruthird, a gentleman of 60 years, is said to have been involved in some kind of brawl which resulted in a stabbing. Gerald Nason, also of Lynn and 22 years of age, was the recipient of the knife’s blade. However, while law enforcement has labeled him the “victim” of this story, the facts leading up to the stabbing are apparently blurred. For example, one witness said that Cruthird was actually the one being assaulted by a small group of men when he pulled out a knife in self-defense. Other witnesses said that Nason was trying to break up a fight involving Cruthird and another person when he was stabbed.

Everybody seems to agree that the incident occurred around 9:30 p.m. outside of Cruthird's apartment building.

When the police arrived, they found Cruthird in his apartment bathroom washing his hands and face. According to police, they found Cruthird with an extremely swollen right eye and in need of medical treatment…which was provided after his arrest for armed assault with intent to murder, assault and battery with a dangerous weapon and assault and battery.

On Friday, the court ordered Cruthird held without bail pending a dangerousness hearing, which is scheduled for this Thursday.

Sam’s take:

If this story’s result seems confusing to you, then consider yourself about to learn an unfortunate, yet true, lesson regarding the criminal justice system.

Many people find themselves in physical altercations. Sometimes we, especially the younger folk, find it nearly impossible to “back down” when faced with an insult or a threat. After all, nobody wants to lose face. We all know that we could get hurt or worse. Sometimes, though, either that possibility does not occur to us at the time, or we are simply sure that we are up to the task.

But that is not the only threat facing you when in that position.

In this case, there seems to be conflicting stories about how the stabbing took place. At least according to the Item’s account, there were no reports that Cruthird actually started this brawl, which took place outside his own home. Further, it does not seem to be refuted that the group of others were the ones who attacked Cruthird…but nobody else seems to be arrested. Finally, Cruthird is said to have pulled out the knife in self defense and, while his injuries seem to suggest having had need of self defense, he is now being held without bail pending a hearing to decide whether or not he is a threat to the community if released. While I am not personally involved in this matter, I am willing to go out on a legal limb and bet that the prosecutor’s position is not simply that this man is a threat when attacked by a gang of men at his residence.

“So”, you ask, “this does not make any sense to you either, does it, Sam”.

Unfortunately, it does.

One fact is that that the police were not present at the event and so have no firsthand knowledge as to how it transpired. Another fact is that the most injured party was the stabee, Mr. Nason. Fact three is that it seems undisputed that, no matter how or why, Cruthird was the stabber.

And now the bottom line ugly fact about motivations in today’s criminal justice system…the obsession with covering one’s legal and publicity fearing behind. The explanation I have heard the most over the many years I have been entrenched in the courts is, “What happens if I let him go and he goes out and kills someone?” No, that is not a question. It is a statement. It is an admission that tomorrow’s headlines and lawsuits govern a great deal of what happens in the system. I also call your attention to the fact that there is seldom an outcry that someone is “too hard on crime”. And so, I will again gather the facts for you:

1. There was an altercation which the police did not witness;
2. Nason was stabbed and apparently seriously injured; and
3. Cruthird was the stabber.

All else blends into the confusion of the case and is to be determined later. For now, however, the stabber is going to be today’s defendant because if he were to go out and kill someone, there would be huge criticism, and perhaps lawsuits, against law enforcement officials in this case. That is also why, I would suggest, the prosecutor asked that Cruthird be held for a dangerousness hearing.

So, other than the daily gathering of information, what does this have to do with you? A lot. Obviously, if you are attacked by a group of people, you are going to try to defend yourself. However, if there is a choice between “backing down” and engaging in violence, you now have another reason to back down. Simply put, if you lose….you lose. You have lost face and perhaps a few vital organs. If you win…and you win too definitively…you are likely going to jail until it can all be sorted out. Later. Much later.

Assuming it is worked out in your favor, that is. See the need for an experienced lawyer in earlier blogs!

The full article of this story can be found at
http://www.thedailyitemoflynn.com/articles/2008/09/09/news/news09.txt

In Massachusetts, a Lowell father that pleaded guilty to assaulting his own son will serve 18-months in a house of correction and 5 years probation. Ty Chan entered his plea in Lowell Superior Court for assault and battery on a child causing serious bodily injury.

The incident occurred on the morning of November, 17, 2007. Lowell police were summoned to an apartment in Middlesex Street following a report of domestic assault. Chan’s 22-month-old son was there and bleeding. According to witnesses, Chan bit his son’s lip.

The 26-year-old Lowell resident says he took cocaine and ecstasy that day. He was arraigned two days after the incident.

Domestic Violence in Massachusetts
Physical violence inflicted on one family member by another is considered domestic violence. Massachusetts law makes it mandatory for law enforcement officers to arrest anyone accused of domestic violence—regardless of whether or not they are guilty of the crime. Many cases of domestic violence are not always what they seem, which is why it is important for the accused to get legal help as soon as possible.

Massachusetts Domestic Violence Statistics:

• There were 42 domestic violence-related murders in 2007.
• 13 suicides.
• There have been about 29 domestic violence-related deaths in Massachusetts (so far) in 2008.

Dad sent to jail in assault on baby, Boston.com, August 29, 2008

Dad Pleads Guilty To Biting Toddler Son's Lip, WCBV.com

Related Web Resource:

General Laws of Massachusetts

Continue reading "Lowell, Massachusetts Man Pleads Guilty to Assaulting His Baby" »

This week, we start our daily blog with an eye toward the north shore, where, according to the Salem News, last fall, Christopher Al-Nabulsi was a star at Salem High School. At 17, he was captain of the football and lacrosse teams, played basketball and was a peer mentor. And then he made a mistake which many assume would simply get him a “slap on the wrist”.

It Didn’t.

In December, a 15-year-old schoolmate paid Christopher $15 for a bag of marijuana. She then informed the school officials of the transaction. They confronted him and he confessed. They then searched his backpack and found three more packets of marijuana. He was arrested and expelled from school. He was also charged with two counts of possession with intent to distribute in a school zone, each bringing a 2 year mandatory jail sentence (apart from the other charges which Christopher also faced).

Last week, Christopher, who had no prior record, pleaded guilty in Salem District Court to charges of possessing marijuana with the intent to distribute and received a suspended 2 ½ -year jail sentence and two years of probation. Violating any condition of his probation, including an order that he stay away from Salem High School, would result in facing the entire 2 ½ years in jail. Under Massachusetts law, such a violation is also caused by being accused of any additional criminal conduct. For example, if Christopher were to anger the wrong person or be at the wrong place/wrong time, the mere resulting arrest will be enough to send him to jail for the 2 ½ years…regardless of what happens down the road with the new charges. Despite being “presumed innocent” of these new charges, Christopher will await his day in court regarding them in jail.

According to Christopher’s attorney, The reason Christopher took the deal, was that the prosecutor agreed to drop the two school zone counts. He also said, "The entire school community has turned their back on him," For example, when Christopher’s former football coach wanted to write a letter of support for the teen, he was told by school officials that he could not do so. Christopher lost contact with former friends and teachers, especially since he will be violated on his probation should he go near the school.

“The school abandoned a 17-year-old boy," the lawyer said. "It's been devastating and will have ramifications for years to come."

Sam’s take:

Regardless of your level of sympathy for Christopher, this is a cautionary tale which debunks many misconceptions which are well worth noting, especially as we start the new school year.

Whatever your view about marihuana, the possession of it is illegal. Secondly, the sharing, giving or selling of it is “distribution” under Massachusetts law and is treated harshly, as with other drug cases. In this case, a 17 year old kid with a clean record faced up to four years in minimum mandatory sentences over and above the potential jail terms which he faced for the charges that had discretionary sentences. Let me put that in a less “lawyer-like” way. Had he exercised his Constitutional right to a trial, and was found guilty, the judge would have had no legal choice but to sentence him to at least four years in jail. After that four years (minimum), he would have had the pleasure of restarting his life…four years further into adulthood with a criminal record, the label “drug dealer” and a curtailed education.

Any drug case, no matter how much one argues it to be a kid’s “stupid mistake”, must be considered serious and potentially life-altering. The fact that youth brings with it a certain lack of judgment at times is a consideration that has long since left the halls of the Justice System. The same is true with any consideration for “manning up” and admitting to the crime as Christopher did. Unfortunately, such honesty, while perhaps good for the soul, is bad for the criminal record.

If you even suspect you may be facing drug charges, whatever your opinion about your chance of being convicted or that it is simply “no big deal”, it is best to get an experienced attorney at the earliest moment if you have any interest in improving your chances in the halls of justice.

Samuel Goldberg is the senior criminal defense attorney at the firm of Altman & Altman, P.C. A former prosecutor in New York, he has worked as a defense attorney in Boston over 18 years. He frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network

The full article of this story can be found at
http://www.salemnews.com/punews/local_story_249003857.html

The Brookline Tab has reported that former Brookline resident Carolyn Kravetz has been indicted in federal court for acts of mail fraud and tax fraud. Her co-defendant, Boris Levitin, hailing from Brighton, merely faces charges of mail fraud.

Federal prosecutors claim that a Ms. Kravetz, a communications director for Dunkin’ Brands from May 2004 to October 2005, steered hundreds of thousands of dollars of work from a Canton-based company to a contractor in return for a 50 percent kickback. The two attended Boston University in the 1980’s (the “greed is good” era) where they gained an education as well as each other’s friendship. The two were apparently very close in 2004 when prosecutors claim that they agreed that Ms. Kravetz agreed to steer Dunkin’ Brands contract work to Mr. Levitin’s graphic design and technical publishing firm, Luminophore Inc. In return, prosecutors said, Mr. Levitin agreed to kick back to Ms. Kravetz one-half of his gross revenues from Dunkin’ Brands. After depositing a check from Dunkin’ Brands, Mr. Levitin would send a check equal to half of the amount to Ms. Kravetz, according to the indictment filed last week in federal court in Boston.

From September, 2004, through November, 2005, Ms. Kravetz allegedly deposited checks from Luminophore into her personal account that totaled nearly $200,000. Mr. Levitin allegedly received nearly $400,000 spread among six checks over a 15-month period, including full payments for many projects that he hadn’t even started. According to the indictment, Mr. Levitin completed one project and performed some work on two others (of the 15 invoiced projects) , but never submitted any work to Dunkin’ Brands on the remaining 12 projects.

According to Mr. Levitin’s lawyer, his client has already paid Dunkin’ Brands back for all the money that Ms. Kravetz accepted, as well as all the money that was paid to him for work he hadn’t completed. He said, “Our position is that every drop of work that Levitin billed for, he had either been starting to work on or was expecting to complete, and every last dollar from Dunkin’ Brands has been paid back...Anyone who knows Boris Levitin knows he’s incapable of a crime, let alone even any dishonesty. He himself is a victim of Carol Kravetz’s fraud, and we look forward to his total vindication at trial.”

Dunkin’ Brands, the parent company of the Dunkin’ Donuts and Baskin-Robbins chains, issued a brief statement when asked about the case that confirmed her time of employment at the company. “In regard to Ms. Kravetz’s recent indictment, we have been working with the appropriate authorities,” Stephen Caldeira, the company’s chief communications officer, said in a statement. “Given that this is a pending legal matter, we will not make any further comment.”

Sam’s take:

While I identify with Mr. Levitin’s attorney’s plight, as someone who has been deeply entrenched in the criminal justice system for more than 20 years (myself graduating Boston University School of Law, by the way), I have not yet met the human being who is incapable of any crime or dishonesty. But, maybe I do not get around much. In any event, there are a few elements that are instructive to the general public which are commonplace in the criminal justice system, especially when it involves the federal court.

First, the reason this is being prosecuted as a mail fraud case is that the somehow the mail was used in the carrying out of this scheme...probably in relation to the invoices sent. While the article is silent as to the tax fraud, one would imagine that these “kickbacks” were not reported to the IRS. The prosecutors will likely argue that this is evidence that Ms. Kravitz knew they were ill-gotten gains.

Second, Mr. Levitin has obviously traded in his friendship with his fellow B.U. alum to point the finger at her and brand himself a “victim”. In federal court, many prosecutions actually depend upon the “turning” of one defendant against another. It would not be surprising if Mr. Levitin is now working with the federal prosecutors and is now actually one of their “informants” against their real target, Ms. Kravetz. In fact, since Mr. Levitin is said to have already paid back the money, and since the indictment just came down, it would appear that he made payment prior to the indictment even being unsealed. I suspect that this was part of the deal made with prosecutors months earlier and that, while himself presently a defendant, Mr. Levitin will be joining the good folks at Dunkin’ on the prosecutor’s witness list. After all, even the best of friendships, wonderful as they are, are seldom chosen over potential jail time.

The final, and most important, lesson the state of mind of the two co-conspirators. We actually do not know who is guilty of what or what the background intent was in this case. Further, we do not know, assuming the charges are true, whether the two former school chums were even aware that there was anything wrong with their arrangement. And that is the flare that I really want to shoot up here. Many business practices border on the criminal because they are on the other side of the legal line society has drawn. Ignorance of such laws is not a legal defense. There are many executives who do not see anything wrong with “kickbacks”. Therefore, if such an opportunity arises, it is usually a good idea to consult a criminal attorney to be sure that the arrangement is legal. Further, if you have reason to suspect that an investigation into something even potentially involving you is going on, it is wise to consult an attorney at the earliest time. As indicated above, there are not many people who incapable of lying...especially when the cost of not pointing a finger is having that finger in a cell.

Of course, the other piece to this is the matter of extent. It is doubtful that anybody truly believes that it is ok to charge money for work never done. If the charges in this case are true, the lesson is that greed, at least in this circumstance, is actually not good.

Have a good and law abiding weekend.

The full article of this story can be found at
http://www.wickedlocal.com/brookline/news/x359566779/Former-Dunkin-Brands-executive-contractor-charged-with-fraud

Yesterday’s Salem Daily News told the tale of Angelo Diiorio, age 18. The young man, had been ordered by the court to confine himself to his home while awaiting trial on charges of vehicular homicide and child rape. In fact, he was even ordered to wear an ankle bracelet. According to the police, however, this condition of release was a bit too difficult for Mr. Diiorio to follow as he was found behind a Danvers business attending a meeting (scheduled fight) with another youth this past Saturday night. The court remedied the youth’s impulsivity by making him a guest of the Commonwealth for 60 days.

According to law enforcement, the two teens were arrested at approximately 10 p.m. as they were in mid-conference (“swinging at each other”) regarding a desired acquisition (a girl). The meeting was forcibly adjourned with the resulting charges of disorderly conduct, trespassing, and possession of marijuana. For poor lovesick Diiorio, however, these charges were the least of his problems as the arrest resulted in the court’s revoking Diiorio's bail in his pending Salem rape case. Diiorio had been indicted last year on a charge of rape, which involved the alleged sexual assault on an 11-year-old girl during a Christmas Eve gathering in Danvers in 2006. Two weeks later, on January 5, 2007, Diiorio was allegedly at the wheel of a 2000 Mitsubishi Eclipse when he lost control on Route 1 in Revere and crashed, killing a 17-year-old girl in Peabody, for which he faces charges of vehicular homicide and negligent driving to endanger. Investigators say the crash was caused when Diiorio and another driver decided to race each other on the highway.

The respective prosecutors in these cases opined to the court that his latest arrest indicates Diiorio doesn't take court orders seriously.

The court granted the request of prosecutors, ordering Diiorio held without bail for 60 days for violating the terms of his release. His rival in romance, however, was released on personal recognizance.

Sam’s take:
There are a few lessons here, even for those of us without Diiorio’s problems with women and impulsivity. Obviously, the varied criminal accomplishments at a very young age speak for themselves…they are illegal and can land you in jail.

What may not be obvious, however, is the fact that the seriousness of the charges were not even necessary for the court to hold Diiorio without bail for 60 days. Under Massachusetts law, any new arrest of a criminal defendant with a case pending can result in that defendant’s being imprisoned for up to 60 days without bail. This is because inherent in any bail conditions (even if released without bail) is an understanding that there will be no cause for a new arrest during the pendency of the case.

Many feel this is unfair given the fact that it is so easy to get arrest these days, even if actually innocent. For example, I have handled many cases where I am convinced that the only thing my client did wrong was either being at the wrong place/wrong time or to anger someone sick enough to use the criminal justice system simply to get revenge or the upper hand in some dispute. The fact is that even though the new criminal charges may prove false, and later either dismissed or the basis for an acquittal, the defendant will still have been held in custody. So much for the presumption of innocence.

The purpose of bail is primarily to ensure that the accused will show up on all court dates. However, there is a “safe streets” concern which enters the equation, especially in the case of violent crime. Even without that concern, however, the reasoning underlying the prosecutor’s successful argument in this case is that if Diiorio does not respect the court’s rulings enough not to get arrested or break the home confinement, he is likely to disrespect the court enough to not bother even showing up.

Think of it as if being released on bail was like being on probation. In actuality, it is.

The bottom line is that if you have a criminal case pending, regardless of how weak or strong you think it is, be extremely careful what you do and where you do it. Most of all, follow any conditions that have been imposed by the court!

The full article of this story can be found at
http://www.salemnews.com/punews/local_story_246235120.html

In Boston Municipal Court, Fabio Brandao, the Framingham man charged with assault and battery with a dangerous weapon and four civil rights violations in the suspected hate crime attack on three gay men and their female friend, says he is not guilty of the charges. He was released on Tuesday after paying a $10,000 bond. Brandao was ordered to stay away from the victims, as well as Boston's South End area. For now, he must also stay in his home between 10p to 7am every night.

According to the victims, a car pulled up next to them in Boston’s South End on August 24. The four men inside the vehicle started yelling homophobic slurs before getting out of the vehicle and attacking them.

Two of the male victims sustained concussions. One man had deep cuts over his eye and on his temple. Both men don’t remember being attacked. Jenna, the woman who was attacked, says she is traumatized by the incident. The other man did not sustain any physical injuries.

The license plate number on the vehicle led Boston police to Brandao, whose cell phone was also found at the crime scene. Brandao’s criminal defense lawyer says that even though evidence places his client at the scene, this does not mean that he was involved in the assault.

According to the Mass.gov Web site, hate crimes in Massachusetts should be charged under three statutes, including:

Civil Rights Criminal Statute, G.L. c.265, Sec. 37
Hate Crimes Penalties Act, G.L. c.265, Sec. 39;
Generic Crime Statute

Also called a bias crime, a hate crime is usually committed against a person, group, or property. A major reason for committing the crime is because of the parent’s race, sexual orientation, religion, disability, or ethnicity.

Suspect in South End anti-gay attack pleads not guilty, BostonHerald.com, September 2, 2008

Suspect in Boston anti-gay attack pleads not guilty, EdgeBoston.com, September 3, 2008

Related Web Resources:
Information on Charging Hate Crimes Under Massachusetts Law, Mass.gov

Hate Crime, FBI

Continue reading "Framingham, Massachusetts Man Arrested for Anti-Gay Attack Pleads Not Guilty to Assault and Battery with a Dangerous Weapon" »

Last Thursday night, two gentlemen in Taunton learned that sometimes it is better to quietly accept a motor vehicle citation than to protest, flee and fight, thereby adding a few felony charges to the experience.

Enterprise News reports that just before 5 p.m. two state troopers spotted an early-model Infiniti G20 with a defective brake light and a sticker indicating that it had failed an inspection on Route 44. They activated their flashing lights and the driver, Brian Lacombe, 20, pulled into the parking lot of KFC restaurant on Route 44 and stopped. However, as the officers left their cruisers to approach on foot, Lacombe apparently had a change of heart and allegedly sped away heading east on Route 44.
And so the chase began.

During the chase, police said, they observed a plastic baggie — later retrieved and determined to contain a Class B drug — being tossed out of a window of the Infiniti into the road near Friendly’s Restaurant in Raynham.

The police chase continued and Lacombe, who reportedly drove through a red light at a busy intersection, made a hard U-turn across the highway island. He then pulled into the Chili’s parking lot, made another U-turn and headed west on Route 44 back into Taunton, racing through red lights in the process, police said. The chase almost ended at the intersection of Oak and Wales streets when Lacombe allegedly crashed into a 1999 Honda Civic driven by a pizza delivery driver, who police said was not injured. Not to be discouraged, Lacombe then made another U-turn. However, a block later, the damaged Infiniti pulled into the driveway of 79 Wales St. Police said Lacombe and his passenger, Julius Nettles, 23, jumped out and began to run away.
Nettles was reportedly quickly apprehended without incident, but Lacombe, ever the optimist, ran through several yards and jumped some fences in an attempt to evade capture. This part of the chase did not last as long, however, and he was apprehended at Oak Street and Hern Avenue, but not before engaging in “a brief but violent struggle” with officers, according to state police spokesman Trooper Thomas Murphy.

Lacombe was treated at the scene for minor injuries before being transported to state police barracks to be booked.

Lacombe was charged with possession with intent to distribute a Class B drug, possession of a Class D drug, failing to stop for police, reckless operation of a motor vehicle, driving with a suspended license, marked lanes violation, driving with a defective brake light, failing to obey both a stop sign and red light, speeding, failing to signal, leaving the scene of an accident with property damage resulting and resisting arrest.

His passenger, Nettles, faces charges of possession with intent to distribute a Class B drug and possession of a Class D drug.

Sam’s take:

Clearly, it is a bad idea to drive when one does not have a valid license. It is also a good idea to make sure the equipment on your motor vehicle is working. Having made these errors in judgment, however, it is usually best not to increase the severity of the situation one thousandfold as did Mr. Lacombe. Most likely, had he simply cooperated with the car stop, he would have received a summons for the defective equipment and driving with a suspended license. His passenger would then have been given the responsibility of driving the vehicle (assuming he had a valid license). One would imagine that this would have been bad enough and Lacombe would get an attorney and defend against the relatively minor charges.

It is seldom a good idea to lead the police in a chase. First of all, they tend to win. Second, property damage, physical injury and even death (potentially yours) can easily result. Further, a foot chase is generally even less successful than the car chase. Finally, any type of violent confrontation with the police, even if merely questioning their authority during a stop, is a contest usually won by law enforcement both at the scene….and later….in the courthouse. For example, notice who needed to get treated for injuries before being transported.

According to this report, Lacombe apparently did not want the police to discover the drugs he had in the car. However, had he simply accepted the citation for the defective equipment and suspended license, there would have been no basis for a car search, especially since his passenger would have been able to drive the car home. By the way, throwing the drugs out the window is not generally an effective means of sidestepping prosecution. There are a number of legal theories which can serve to link one with contraband which is not physically on one’s person.
The only manner of non-cooperation that is usually wise in a police confrontation is not making statements, other than identification information, and, most importantly, getting a lawyer as soon as possible!

The full article of this story can be found at
http://www.enterprisenews.com/news/x1886920440/Car-chase-leads-to-drug-arrests-in-Taunton

The pre-Labor Day Weekend push of commercials warning against operating under the influence did not prevent the collision between an automobile and a pedicab just before the weekend, according to a story published by the Salem News.

According to the article, a 20 year old female struck the pedicab just after midnight on Washington Street in downtown Salem. According to the police, she stopped “for a brief moment” and then drove around the tipped-over pedicab and then left the scene. The pedicab’s driver, Anthony Taurasi III, reportedly chased the motor vehicle up the road before collapsing on the ground. Mr. Taurasi and one of his passengers were then brought to the hospital. During his brief chase, however, he was able to view a partial license plate.

Given the license plate number, police said they found Rose Barry of Beverly driving on Highland Avenue with her hazard lights on. However, when the police turned on their blue lights and sirens, she refused to stop "made an abrupt right turn into the rear of 84 Highland Ave. and then attempted to go between a space in the guardrail."
Ms. Barry was immediately arrested and charged with leaving the scene of an accident with personal injury. More charges followed as police took her back to the police station, where she reportedly blew alcohol levels of 0.12 and 0.13. State law says drivers of legal drinking age, 21, are drunk at levels of 0.08 or above. She was also charged with leaving the scene of an accident with property damage, failure to stop for police, failure to yield and operating under the influence of alcohol.
Taurasi said he spent the night in the emergency room. He said one of his passengers, a 15-year-old girl, had bruised ribs. The other passenger, a 22-year-old Peabody man, refused medical treatment.

Barry's passenger, whose 20th birthday was Thursday, got a ride home through her father.

Barry remained a guest of the Commonwealth.

Sam’s take:
Other than the first major mistake of the evening Ms. Barry made (namely driving drunk), she successfully made matters worse for herself at each decision after the accident. Leaving the scene after an accident (which causes either property damage, personal injury or both) is a crime in itself. Further, while the law provides for what some consider rather gentle treatment for a first time offender of OUI, leaving the scene and taking the police on a merry chase is likely to eliminate the possibility of “getting a break”. Further, knowing that she had been drinking, she voluntarily took the breathalyzer test, which she had the right not to do. True, the refusal to take the test in Massachusetts means a temporary loss of license, but helping the Commonwealth prove she was under the influence does not improve her chances of keeping her license…in fact, she will lose her license for a longer time.

It is not clear whether Ms. Barry made any statements to the police, but it would appear consistent if she had. In other words, that would have been another big mistake. Many people think that they can somehow “talk themselves” out of a bad situation such as this. In these types of cases, the most common statement is that the driver “only had two drinks”. Such a statement is hardly helpful as (1) it is seldom believed and (2) it really does not matter. If the police believe they have probable cause to arrest you for driving under the influence, they will arrest you for operating under the influence. Generally, this decision is made without the driver helping them with a confession. They usually appreciate the help, though, and award the driver with a free trip and overnight stay behind bars.

Circumstances such as these also bring other legal problems beyond the actual criminal prosecution. For example, there is likely to be one or more personal injury lawsuits against the driver (and the owner of the vehicle if it is not her) by the various passengers.

At Altman & Altman LLP, now located on the North Shore, Cambridge and Boston, Massachusetts, our successful criminal and civil defense lawyers have more than 50 years combined experience, including previous experience as prosecutors, and take the time necessary to gather all the facts of your case and advise your of your rights and your defense options. If you find yourself being accused of operating under the influence, or any related crime, act today to see if we can help you. There is no charge for the initial consultation.

The full article of this story can be found at
http://www.salemnews.com/punews/local_story_242235151.html

Samuel Goldberg is the senior criminal defense attorney at the firm of Altman & Altman, P.C. A former prosecutor in New York, he has worked as a defense attorney in Boston over 18 years. He frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network

According to critics, the state of Massachusetts is one of 25 US States with no laws dealing with the preservation of key DNA evidence. It is also one of seven states that do not automatically allow people convicted of crimes the right to submit their DNA to exonerate themselves from crimes they did not commit.

In Massachusetts, the rules that preside over DNA preservation fall under the Code of Massachusetts Regulations. According to Massachusetts State Police, there are some 16,000 DNA samples at a Sudbury facility. state police spokesperson David Procopio says law enforcement authorities never get rid of DNA samples obtained from victims and crime scenes unless they are told to do so by the district attorney in charge of the case.

Last week, Keith Amato, a Cape Cod man who has been trying to retrieve the DNA sample he gave to police for a murder investigation, won the right to get his sample back. The investigation dealt with the 2002 stabbing death of writer Christa Worthington.

In 2006, Christopher McCowen was convicted of her murder. In June of this year, the ACLU of Massachusetts filed a lawsuit accusing state law enforcement officers of failing to keep their promise that they would destroy Amato’s DNA evidence if he was ruled out as a murder suspect.

According to ACLU Legal Director John Reinstein, the state lacks an “authority for maintaining these rule-out samples.” Cape and Islands District Attorney Michael O'Keefe, however, said he authorized that the sample, in addition to all other DNA samples obtained in the case, be returned or destroyed.

Some people have questioned whether the collection of so many DNA samples for the Worthington murder investigation was intrusive.

Critics: State fails DNA test, BostonHerald.com, September 1, 2008

Cape Cod man gets DNA sample back, BostonHerald.com, August 28, 2008

ACLU sues over DNA sample, Boston.com, June 20, 2008

Related Web Resources:

Frontline: The Case for Innocence, PBS

Understanding DNA Evidence: A Guide for Victim Service Providers, US Department of Justice

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