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

Posted On: April 9, 2012

TWO DEFENDANTS CHARGED WITH MURDER ARE RELEASED AS CASE IS DISMISSED IN DEDHAM

Hey, I am only a mere Boston criminal lawyer…you can’t expect me to know all the answers. That is what I rely on the media for to a certain extent.

For example, would be the best question to ask someone who has been in jail for about three years awaiting trial for murder and is now suddenly released because the Commonwealth has dropped the charges?

Fortunately, we have seasoned reporters who know just the penetrating question to ask. It turns out that the question is “How does it feel to get your freedom back?”

Brilliant. It never would have occurred to me.

But, once again, I digress. Today’s topic is the matter which took place in Dedham late last week. In that case, two suspects in a gruesome murder have been released from their close to three years in custody. The charges against them have been withdrawn as the key prosecution witness in the case has now died.

When asked how the creative question mentioned above, namely, how it felt to be free, one of the men said, “Why don’t you put yourself in my place and figure it out for yourself.”
Daniel Bradley, 50-years-old, a former football coach at Xaverian High School and Paul Moccia, 57-years-old, a Mass Pike toll collector (hereinafter, the “Defendants”) were accused in the 2009 murder of a 37-year-old Framingham man. According to law enforcement, the Defendants shot the man in order to avoid a $70,000 drug debt. The man’s body was never found and authorities believe it had been dismembered at Bradley’s cement company and disposed of.

This past January, the prosecution’s key witness, Moccia’s brother, died of natural causes. Now, approximately three months later, the Norfolk District Attorney decided to withdraw the charges.

The Norfolk District Attorney Michael Morrissey said the case largely rested on the key witness but now that the witness is dead it is impossible for the government to sustain its burden of proof.

The case remains under investigation. The district attorney is asking anyone with information to come forward.

Attorney Sam’s Take On The Dismissal Of Homicide Charges

I tend to criticize district attorneys quite often in this blog. Therefore, allow me to jump at the chance to credit them where applicable. What the Commonwealth has done in dismissing these charges, rather than waiting for the trial date, is to honor its responsibility to do the "right thing". It realized that there is no way it could make what lawyers call a "prima facie case"...and so it dimissed the charges.

“So, Sam, does this mean that the Defendants have been exonerated?”

No. It means that the Commonwealth could not prove its case beyond a reasonable doubt at this time.”

“What do you mean ‘at this time’”?

The case is dismissed without prejudice. In other words, if things change and new information comes forward that can somehow make the case prosecutable, they can bring the charges again.

“How long do they have before the statute of limitations makes it impossible?”

There is no statute of limitations for murder cases, so that is not an issue. The possibility of facing these charges again will be with the Defendants until the day they die.

“Wasn’t this case presented to a Grand Jury?”

One would imagine.

“So, the witnesses had to testify at the Grand Jury. Can’t the Commonwealth use the transcripts of that testimony at a trial?”

While there are exceptions to everything, the answer in this case is no. First of all, not all the witnesses have to testify in a Grand Jury. In fact, there are many cases in which the Commonwealth presents the reading of police reports to the Grand Jury instead of calling the actual witnesses.

“Isn’t that hearsay?”

Yes. But hearsay is permitted in a Grand Jury presentation.

“If the deceased witness did testify in the Grand Jury, could that transcript be read?”

No. There are a few reasons, but the biggest one is that the Defendant was not represented at the proceeding and so no cross-examination was not possible. Every defendant has the right to confront and cross-examine witnesses against him or her at trial.

“Since the case was dismissed, do the Defendants have a potential lawsuit to bring against the Commonwealth for the three years they spent in custody?”

No. For several reasons. First of all, the prosecutors have immunity in such situations. However, remember that there was never a finding that the Defendants were not guilty. Therefore, there would be no way that the Commonwealth held them in custody in bad faith.”

“How do you think the Defendants feel now that they have been given their freedom back?”

Oh, come on now.


For the original story upon which this blog was based, please go to http://www1.whdh.com/news/articles/local/south/12007144116692/murder-charges-dropped-against-2-mass-men/