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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: May 2, 2013

WAKEFIELD MAN FACES MULTIPLE CHARGES OF CHILD SEXUAL ASSAULT IN MIDDLESEX AND ESSEX COUNTIES

Yesterday both Salem and Boston were buzzing with high profile matters. First, let’s discuss Salem and then, later today, Boston.

Salem’s figure of interest was John Burbine, 49, of Wakefield (hereinafter, the “Defendant”). The Defendant stands charged with Massachusetts sexual assault.

Prior to yesterday’s court date, the Defendant was facing criminal charges in Middlesex County for allegedly sexually abusing children at his wife's day care is facing new allegations in Essex County. Said children, approximately 13 of them, ranged in ages from 8 days to 3 years of age. These assaults are alleged to have happened over a two-year period, beginning in August of 2010.

They are said to have occurred at the Defendant’s wife’s day-care business which was allegedly not duly licensed.

The Defendant’s criminal justice woes did not begin with the Middlesex case, however. In 1989, he was apparently convicted of assaulting a child.

In fact, his wife is currently charged with recklessly endangering children, and the Commonwealth contents that she knew about his prior conviction and allegations that he sexually assaulted young boys in 2005 and 2009. The latter two allegations, by the way, were never prosecuted.

Meanwhile, the Defendant was before the court in Salem yesterday on similar charges, although this time with only one complainant.

An Essex grand jury returned an indictment charging the Defendant with rape of a child and indecent assault and battery on a child under 14, prosecutors said. The allegation are that the assaults took place between 1990 and 1994 in Saugus, beginning when the complainant was 5.

The complainant is said to have come forward after the publicity that followed the 100-count indictment of the Defendant in Middlesex County.
The Defendant has pleaded not guilty to all the charges and is held on $1 million bail.


Attorney Sam’s Take On Seemingly Hopeless Sex Assault Charges


An additional allegation by the Commonwealth is that the Defendant had video-taped a number of the alleged assaults. The Commonwealth indicates that it discovered the footage on the Defendant’s home computer.

“Oiy, bad to worse! Clearly, Sam, this is a hopeless case for the defense.”

In my experience, there is seldom a case that is totally hopeless. The question is often how creative and skilled the attorney is. No, I do not mean that the attorney will simply make up some way to bamboozle the court and the jury. However, there are often questions that the Commonwealth, in its zeal, does not fail to investigate. There are also rules that the police are supposed to follow or else evidence is suppressed.

For example, the alleged videos on the computer bring about one such question regarding suppression. How were those videos seized? Was there a warrant?

If they were seized under footsteps of police officers trampling over the Defendant’s Constitutional rights, then the videos may well be suppressed. If suppressed, as far as the trial is concerned, they no longer exist.

How did this first case come to light? Surely, there had to be some evidence that led to the seizure of the video-tapes. It is also hard to imagine that either the toddlers or infants gave a reliable statement.

This likely leaves us with the parents.

“What motive could the parents have?”

You would be surprised. What if medical staff questioned injuries they found on one of the children and confronted the parents? What if otherwise answering truthfully would have gotten the parents in some sort of trouble with either police or the Department of Children and Families?

After all, once there is any suspicion, DCF usually comes around and all kinds of pressure are brought to bear on parents unless they “take action” as DCF sees fit.

“Yeah, but the Middlesex case does not involve just one kid. It involves several.”

True. But what happened with one child could happen with several. Further, once the Commonwealth smells child sexual assault, an investigation is usually, and rightly, conducted. You would be surprised what one can find if they are looking for it already.

Which brings us the Essex County case.

Often, once there is a high profile case like the Middlesex matter, there is the scent of prosecutorial blood in the air.

The complainant in the Essex County case admits that he came forward because of the publicity of the Middlesex County case. This, in itself, brings about all kinds of questions of credibility.

You do not need me to remind you that a complainant in these types of matters can be sued civilly as well as prosecuted criminally for the allegations. A conviction is often very powerful evidence in such a civil lawsuit.

I am reminded of the case of the late Michael Jackson. Many of you know that I was a regular legal expert on FOX News during Mr. Jackson’s trial. The defense in that case was that the family of the complainant was after money.

Especially given Mr. Jackson's image and his antics during the trial, everyone was sure of Mr. Jackson's guilt.

Mr. Jackson was found to be not guilty.

Just saying…!

I will be back later with the Boston story.

For the original story upon which this blog was based, please go to http://bostonherald.com/news_opinion/local_coverage/2013/05/mass_child_abuse_suspect_faces_more_charges and
http://www.bostonglobe.com/metro/2013/04/30/john-burbine-facing-more-child-sex-abuse-charges-this-time-essex-county/pvxGdpq8Nag0R3RovjsUPP/story.html