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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: December 19, 2012

CAN DWAYNE MOORE APPEAL HIS CONVICTION FOR MASSACHUSETTS MURDER?

The short answer, as any daily reader of Attorney Sam’s Take knows, is “of course he can”. All he has to do is be found guilty after a trial. He has accomplished that task.

The next question, of course, is what the basis of the appeal will be. That is when it becomes alittle trickier.

As you may recall, the appeal of a criminal conviction cannot simply be “the jury got it wrong”. The issue must be an issue of law, not simply fact. The jury was the judge of the facts and the appeals courts give great deference to trial juries. This makes sense, of course, because the jury saw, as well as heard, the evidence. The jurors were in the best position to judge things like credibility. The closest a defendant can come to claiming that the verdict was wrong as a basis of an appeal is to say that there was no way, as a matter of law, that a reasonable jury could have found the defendant guilty.

This, of course, is a very high standard and so is not generally a chosen issue for appeal.

“Sam, you say “a chosen issue” as opposed to “the chosen issue”. Can there be more than one issue raised on one appeal?

Yes. You can basically raise as many issues as you want. However, there are tactical decisions in choosing which issues and how many. For example, there is a limit in the length of the brief. This, of course, can be changed in a given case by submitting a motion for permission to hand in a longer brief. In doing so, of course, the court, when reading the brief, is likely to wonder if all this extra length was necessary.

“Why should I care if the court is second-guessing my attorney’s need to hand in a longer brief?”

Because more is not always better. More often means an inability to clearly articulate a proper argument...sometimes because an effective argument on a certain subject does not exist. As with the trial level, credibility remains an important issue. If your attorney has blown your credibility from the start, it does not bode well for the rest of the appeal process.


“Does the appeal go before the trial judge?”

No. A Motion For A New Trial would, but an actual appeal goes before the Massachusetts Court of Appeals. It may then go further to the Supreme Judicial Court.

“On your last blog, you mentioned that there were some potential grounds for appeal that were already apparent. What were they?”

Understand that the thrust of a criminal appeal is not that the jury erred, but that either the prosecution or the judge erred. Or, of course, a combination of the two.

As I also mentioned in the last blog, unusual circumstances often give rise to claims that the defendant was deprived of his right to a fair trial, which is the bottom line to a criminal appeal.

One thing that was unusual in this case was the two times that the court had to dismiss a juror. Any time something happens with a jury, there is an opening to inquire whether the episode served to prejudice the defendant. In this case, a few issues come to mind right off the bat.

First of all, there was the excusing of the first juror. As you will remember, this was because the juror violated the court’s rules by doing some independent research in the case. This was worsened by the fact that said juror shared some of his findings with his fellow jurors.

As a result, the juror was excused and an alternate juror took his place; the deliberations had to start all over again. The judge had to decide whether this so damaged the proceedings that a mistrial should be declared. He decided that it did not. I would expect that this, in itself, will be one argument on appeal. However, it does not end there.

A second juror had to be excused. This meant that the jury had to start over from scratch once again. Could this have angered the jury? Did some of them remember some of what the first excused juror had told them? Could this second interruption have violated the defendant’s rights?

You should remember this is in the backdrop of the fact that the first trial ended in a mistrial...the jury in that case could not reach a decision as to this defendant.

Finally, you have two statements by the judge which I think might have been unfortunate. The first was what he told the jurors on Monday. He told them that he had considered making them deliberate on the previous Saturday, but decided against it because of the holiday season. He did, however, warn them that they would be deliberating later during the week. An argument could be made that this was tantamount to blaming them for all the delays in deliberating, which would be unfair and likely anger the jurors. Further, it could have put additional pressure on the jury to rush their deliberations along.

They delivered their verdict that very day.

And then...there was last Friday’s tragedy in Connecticut. Clearly, the jurors were aware of the horrible crime and, as the rest of us were, moved by it. At the sentencing, the court referenced the Connecticut shootings and likened it to the Mattapan Massacre in terms of the young child that had been killed. What did that reveal in terms of the court’s thoughts and attitudes that were demonstrated to the jury? What does it tell us as to how this new story permeated the jury’s thoughts during their last day of deliberations?

In short, could it have further compromised a jury that was already having problems in a case during which a previous jury could not reach a verdict (as to this defendant)?

There are times and states in which deliberating jurors are completely sequestered from the outside world. Should that have been done in this case?

As I mentioned last time, I was not involved in this case and I did not attend the trial; I had my own battles in the trenches to address. However, off the top, I would expect that these factors around the deliberations to be amongst the issues brought before the appeals court.