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) 492 3000.

There are a number of areas in which attorneys and their clients  come to disagreements. After all, in most cases, being the party in a criminal or civil law suit, particularly as a defendant, is a high stress endeavor.

Over the years, we have discussed a number of these areas such as lack of communication, the thought that the attorney is not knowledgeable  or simply has the bedside manner of a venomous snake.

We have also discussed the fact that some folks have a different view of reality than the rest of us. Sometimes communication can improve this.

Sometimes not.

Many clients present with challenges which pre-date the issues in an ongoing legal action. Take veterans, for example. Many vets have had to survive living through whist can only be regarded as Hell. How do they do it?

I was discussing’s this with a colleague, Attorney Sarah J. Briones a lawyer whom I greatly respect earlier today. She observed that sometimes, in order to survive, military personnel have to learn to shut out certain aspects of what the rest of us might consider reality. This is not to say they are insane or anything like that, but the perspective they have had to adopt in order to survive might not work during events like lawsuits, prosecutions or divorce.

Unfortunately, this is part of the price they pay in their service to the country and the rest of us. More unfortunate is that, while we pay some lip service of appreciation to them, we fail to understand and take into account this different perspective. We fail to help them truly adjust.

the results re often unfortunate.

Once that happens, they find themselves in an arena in which even people who never had the military experience fail to truly understand. I have said before that, as attorneys, it is part of our job to help the clients through their little path through criminal law odyssey.

I thought that it might help to address what types of expectations folks seem to  have of their newly acquired experienced attorney.

Attorney Sam’s Take On Expectations Of Lawyers

When you hire a physician, you expect a certain degree of expertise. However, most folks realize that, good as the doctor might be, he or she is probably not a wizard or witch. There are limits as to what the doctor can do.

The same is true with attorneys, no matter how experienced he or she is. There are various rules, procedures and laws which govern a great deal of what we do. Many of these may be seen as unfair by you. Fair or unfair, however, they must be dealt with as realities.

Because they are realities.

“But, Sam, we hire you to work around those rules. For example, I am sure you have represented clients who were guilty as charged before. They pay you to try to ‘get them off’.

Yes, but the surrounding details of the procedure do not change. In other words, I cannot say, “Judge, my client is not guilty. We don’t need a trial. He told me he is not guilty. That’s good enough. Dismiss the case.”

“No, but you try to suppress evidence and such.”

 

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Well, 28-year-old Miles Anderson (hereinafter, the “Defendant”) is in criminal court type trouble.

Police in New Hampshire say that he has been accused of breaking into a home, taking off his clothes, and assaulting a sleeping child.

Law enforcement says that the Defendant entered the Concord home shortly after 4 a.m. Monday. He made his way into the child’s bedroom and disrobed. Police say he then assaulted the child, who was able to run away and alert family members.

Another man who lives in the house was able to restrain the Defendant while other household members called the police.

According to Boston.com, the Defendant was arrested on charges of burglary, indecent exposure, and simple assault

Attorney Sam’s Take On What You Think This Means

Most folks will look at these facts and assume that the Defendant forced himself into a home, found a child sleeping and sexually assaulted her.

This would be inconsistent with the charges that are now pending. I should advise you that this is a New Hampshire case. Although the criminal laws tend to be similar, I offer this proviso that I am writing about this as if it were a Massachusetts case.

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I heard a story this weekend that I just had to pass on to you. It illustrates something we have been talking about in an unusual way.

The police were called to an apartment. The report was that there had been a murder. Sure enough, when the police got to the apartment, there was a dead body.

In the kitchen.

Also in the kitchen was a gentleman (hereinafter, “Cookie”) who was cooking macaroni and cheese apparently nonplussed by the dead body on the floor.

The officers asked Cookie who had called the police. Cookie said that he had.

“Well, who is the guy on the floor?”

“Don’t know.”

“You don’t know the dead body lying in your kitchen is?”

Nope. Never seen him before.”

About a minute or so went by as the officers wondered what to do next. Meanwhile, Cookie continued to cook.

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Yesterday, we discussed an item posted on Boston.com , about a driver who was busy videotaping his car hit 100-miles-an-hour when he was stopped by law enforcement. The unnamed driver, hereinafter, the “Defendant”, was apparently not arrested although he did give a full confession.

The story made me a little curious and so I tried to find an update to it, since the event actually took place in 2013. I was unable to find an update. I was also not able to find his name.

This reminded me of another issue that often surprises people. The question of when a criminal defendant’s name is or is not released to the public.

Let’s look at that question.

Attorney Sam’s Take On Public Disclosure Of Criminal Defendant’s Identities, Addresses And Allegations

In the United States, there is great freedom of the press. On the other hand, a criminal defendant also has a great many rights…at least theoretically.

After all, a criminal defendant, unless and until convicted, is assumed innocent.

On the other hand, as I have opined in the past, the defendant may be presumed innocent…but he is assumed guilty by most folks both in and out of the system.

“So how does it play out?”

In most cases, the media gets to print out the news of the case. This means printing the name, age and address at the very least. Routinely, the local papers print this information when anyone is arrested. Sometimes even if the case does not result in an actual arrest.

Many cases are similarly reported when the case is arraigned. Clerks and law enforcement regularly give this information to the press. In fact, they often know about an arraignment or some other court date before even the Parties know.

One exception to this is juveniles. Juvenile defendants’ are not published in the paper.  It may be that the driver in the story was a juvenile.

Sometimes, the media will figure that a particular case is of particular interest. In such situations, reporters, and sometimes cameras, will show up in and out of the courtroom to film and report on what is going on. In such cases, this will follow the case until completion.

Usually, I find that there is particular interest in the beginning of a case as well as when the case ends…especially if it ends with a conviction.

“But, Sam, can’t that effect how the case is handled?”

 

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Interestingly, Boston.com Has on the front page of its website this little story.  The story is actually from 2013 according to the byline, but it is really too good a story to pass up.

In my last two postings, we spoke about defendants who make statements to law enforcement. This is a tale about a gent who, not only apparently made a full confession to the officers, but went so far as to make sure they had enough evidence to convict him of any Massachusetts motor vehicle crimes.

Must be one of those “law and order” types…kinda sorta.

Norwood police say that they stopped the unnamed gentleman (hereinafter, the “Defendant”) during a particular driving spree. The spree included driving more than 100 miles per hour in a 45-mile-per-hour zone on busy Route 1 on a Friday night.

The Defendant was pulled over at around 10 p.m. . He is said to have told police that he knew he was being pulled over for speeding and that he was going “at least a buck’’ (a/k/a100 miles per hour).

He apparently also explained that he was using one hand to drive and one hand to capture video of his speedometer to show how fast his car could go to potential buyers

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About 14000 years ago, I was a prosecutor in Brooklyn, New York. The last bureau in which I worked was the Homicide Bureau.

The first case that I brought to trial was a drug-deal-gone-sour matter in which the defendant was alleged to have stabbed the deceased. While there was no physical evidence or eye witnesses that pointed to him,  and he had no prior record, there was but one particular piece of evidence against him.

He made a statement.

To him, it must have seemed a good idea at the time. He thought he was exonerating himself, or at least, making the killing accidental. You see, he had used a very small knife during the incident. Who could know that such a little thing could actually kill a man?

Well, I suppose we all do….now.

The defense brought a motion to suppress the statement. The motion failed.

The jury trial ended with a relatively quick conviction.

Attorney Sam’s Take On The Reality Of Statements

As I mentioned yesterday, the issue of making statements is an interesting one. Many people still do not understand it. I often have clients who tell me that the police did not inform them of their Miranda Rights, and so the case must be “thrown out”.

Sorry, it is not that simple.

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Here is a piece of the basic advice that perhaps I don’t stress enough. Maybe it is my fault that a certain Gentleman from Springfield is in so much trouble.

Arquelio Cajigas, 45 years of age and hereinafter the “Defendant”, is currently being held on $250,000 bail after pleading not guilty to various charges including heroin possession and illegal possession of a gun.

Well, that’s not too and given the fact that the prosecutors asked for $500,000 bail saying that he is a “career drug dealer.”

The Defendant’s bail request was apparently for $25,000 bail, saying his client is of limited means and cooperated fully in the police investigation.

In fact, said “cooperation” did not support the argument of limited means. In fact, the Defendant apparently told law enforcement that he lives in a shelter.

According to the Boston Herald, the police say that they found approximately $35,000 and a 9 mm handgun Tuesday in one of the apartments. At another apartment, detectives say they found 816 grams of uncut heroin, enough for 80,000 bags with a street value of $400,000 to $800,000.

These values tend to be unsupportive of a poverty argument.

It is not clear at this point what links the Defendant to these two apartments. However, the allegations as they are give us fodder to discuss the point to which I allude as well as a couple other tidbits of information.

Attorney Sam’s Take On Drugs, Guns And Statements To Law Enforcement

I have explained many times that it is usually unwise for a suspect to make statements to the police as he or she is facing arrest. I have explained the reasons for this several times and, I am sure, will do so again.

Not today, though.

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In MA, any driver who has been granted a hardship license or is eligible for license reinstatement after an OUI is required to have an ignition interlock device (IID) installed in their vehicle. An IID is connected to your car’s ignition. To start the engine, you must first blow into the device, “passing” a breath test. If the IID registers any alcohol on your breath, the car will not start. The driver must also blow into the device periodically while operating the vehicle.

Many states now require IIDs under certain circumstances. In MA, you must have an IID installed in your vehicle if you are eligible for a hardship license after two or more convictions for OUI, and if you are eligible for reinstatement after two or more OUI convictions. In both cases, the IID must remain in your vehicle for at least two years. A MA OUI defense attorney can help you protect your rights if you’ve been charged with OUI.

Are IIDs Always Accurate?

An IID works much like a breathalyzer, which measures a person’s blood alcohol concentration (BAC) if stopped for OUI. IIDs work using either semi-conductors or fuel cell technology, although there is quite a bit of controversy over the accuracy of those that use semi-conductors. That being said, all IIDs can produce false positives.

Once the negative breath test is registered, the vehicle’s engine will start. However, the driver will be required to periodically pull over to perform another breath test in order to keep the vehicle moving. This is to prevent drivers from starting the vehicle sober and then opening a beer – or several – as they drive. If these periodic tests (called rolling tests) are not performed, your vehicle’s engine will shut off.

What is My IID Recording?

The IID also records information about your driving habits and test results. The IID will record anytime:

  • you have a measurable BAC,
  • you attempt to start the car without taking the test,
  • you refuse to take the rolling test,
  • you fail the rolling test, or
  • you tamper with or disconnect the IID,

as well as:

  • the distance your vehicle has traveled, and
  • the number of times you stopped or started your vehicle.

The Cost of an IID

Although total cost varies, installation and maintenance may set you back by up to $2,000 annually. Here is a general breakdown:

  • Installation: a minimum of $100
  • Monthly maintenance fee: up to $80
  • Monthly rental fee: up to $100

There are also additional fees for things such as obtaining restricted license classification and removing that classification once you have completed the program.

Participation in the IID program can be time consuming as well. You will need to schedule regular appointments during which the recorded information will be retrieved and the system will be recalibrated. And if your IID malfunctions or “locks up,” you will need to take it in for maintenance. A Boston OUI defense attorney can help you determine how to proceed if you’ve been charged with OUI. Continue reading

Yesterday, we began discussing the case of Florian Roshi, 34 from Weymouth and hereinafter the “Defendant”. We covered how he got into alittle trouble with the criminal laws about children and OUI.

As described in the Boston herald, he is alleged to have, with a young child in the car, driven his truck while under the influence of drugs, gotten into an accident in which the small child was thrown from the vehicle and left the scene for awhile. He did come back, though. A bystander was helping the child, the police say they found various drugs in the truck and he was arrested.

I also explained that his children were now involuntary guests with the Department of Children and Families (DCF). In fact, a spokeswoman for DCF has confirmed that the agency “took emergency custody of … all children living in his home” upon being notified of the Defendant’s situation.  She declined to comment on any prior involvement with the family, citing privacy laws. The prosecutor at the Arraignment, however, apparently not as concerned for privacy rights, announced that the 4-year-old “has, in the past — recent past — been the focus of a DCF investigation.”

To add insult to injury, the Registry of Motor Vehicles has revoked the Defendant’s license indefinitely. Apparently, he had a 12-page record of vehicular offenses which date back to 2001 and includes three surchargeable accidents last year.

So, contrary to what I said yesterday, it is a “Commonwealth tripple whammy.”

Attorney Sam’s Take On Such Massachusetts “Whammys”

It is not unusual for drivers to have children. Therefore, it should not be a surprise that, when things like this happen, it can trigger problems in various arenas.

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…And another gent is learning about what I have begun to think of as the “Commonwealth Double Whammy”.

According to the Boston Herald,  Florian Roshi, 34 from Weymouth and hereinafter the “Defendant”, is now facing criminal charges and his three children are in the custody of the Department of Children and Families (“DCF”).

The Defendant is facing charges of Operating Under The Influence of Drugs and Child Endangerment. As reported, it sounds like he is in a lot of trouble.

The Commonwealth alleges that the Defendant was driving a truck while under the influence. They say the truck careened off the road and scraped along a guardrail.  Showing questionable judgment, the Defendant made statements. He allegedly told police that he “swerved and heard glass break. When officers asked what took so long to stop, he did not have an answer.”

The prosecutor told the judge at the Defendant’s Arraignment that a 4-year-old “went through the front passenger window of the truck”.

The child restraint seat in the back “was not anchored or secured to the vehicle in any manner. It was merely placed in the rear of the vehicle,” the prosecutor said. Apparently, the 4-year-old suffered “significant road rash” on his face and was expected to undergo an MRI at Children’s Hospital.

Authorities say that the Defendant abandoned the vehicle and child in the breakdown lane of Route 3. He is then said to have walked a quarter-mile back with his uninjured 8-year-old child to where his 4-year-old lay injured.  According to law enforcement, the child was being comforted in the arms of a good Samaritan while his father “had an emotion neutral look on his face” and “a glazed over look in his eyes.”

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