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.

Massachusetts Criminal Attorney Defeats Drugs And Gun Prosecution

“Why?”, you demand. I can hear you through the computer screen. Each day for about a month and a half, I have posted this daily blog suggesting that, if you find yourself on the nasty end of an investigation or criminal charge, you should consult an experienced defense lawyer as soon as possible.

“Lawyers are expensive”, you tell your computer. “I’m pretty bright…I bet I can talk my own way out of such problems. Besides, I don’t think I did anything wrong…much.” Perhaps you are the more action-oriented type who has already planned out your escape route and how best to out-drive, out-run or out-fight the police officers who might approach you at an…awkward moment.

“Besides”, you say, “I don’t like lawyers”.

Well, who does? But that’s not the point.

Ok, after many blogs about what not to do…let’s look at a case that shows how having a lawyer involved might actually help.

Kenny M., 30, of Lynn, (hereinafter, the “Defendant”) had a case pending in Salem Superior Court. He had been indicted on charges involving the trafficking and possession of drugs and guns…a frequent coupling that tends to make people nervous. He was arrested this past April.

This past Monday, the case had to be dismissed.

The case involved the trafficking of over 100 grams of cocaine. The Defendant had been a felon at the time of his arrest, so he also faced charges of being a felon in possession of a firearm as well as possession of the firearm in the commission of a felony. Pretty heavy charges. Worth a lot of years in state prison.

How did it get dismissed? Was it because of some “self-help” defense such as explaining away the trafficking as a mere misunderstanding? Was it the Defendant’s puppy-dog look and golden words of apology that convinced law enforcement to give him a break? Maybe he resisted arrest and got away? Beat up the police officers? Grabbed the warrant the police presented and ate it so that there was no more warrant?

Nope. It was the experienced defense attorney, in this case Robert M. Linnehan, Jr. plying his trade regarding an important issue of law.

The Defendant had been arrested on the morning of April 19 when police seized 122 grams of cocaine and a .22 semi-automatic Smith & Wesson firearm concealed behind a wall. They had a search warrant which they presented to the Defendant. He, apparently, did not interfere.

They searched. They found the contraband. They arrested him.

One little problem, it turns out. They got the warrant for the wrong apartment. The warrant was for the second floor apartment; the Defendant lived on the third.

The Defendant’s lawyer brought a motion to suppress the evidence seized. Suppressing the evidence would mean that the Commonwealth could not use it at trial. No gun. No drugs. No case.

The court ruled in favor of the motion to suppress, holding that the police had no right to search the third floor apartment as the warrant was defective.

The Commonwealth told the court on Monday that it had decided not to appeal the court’s ruling. “Without the evidence, we have no case”, explained the prosecutor. Therefore, the assistant district attorney moved to dismiss the case in the interests of Justice.

The court allowed that motion too.

SAMUEL’S TAKE:

How many of you out there, if in the Defendant’s shoes, would have thought, “Well, I am a felon. Nobody is going to find in my favor. They are going to find the gun and drugs and there is nothing I can do about it – it’s over…unless I…”? I have met with many clients who thought this way. Often these thoughts are shared with me in the little attorney conference rooms in various Commonwealth Homes For The Liberty-Impaired, especially when they decide to try the “self help” approach by fighting with the police and committing additional crimes, etc.

We do not know if the Defendant made any incriminating statements. The good news for him is that, even if he had, they still would not have been enough to save the day for the prosecutor. Again, if the Commonwealth cannot use the gun or the drugs, it cannot prove its case and the statement alone would not have sufficed.

However, what if the Defendant, feeling the situation hopeless, tried the more aggressive approach and committed more crimes? These actions may have saved the day for the Commonwealth. No, they would not have corrected the search warrant, but the additional crimes could have been independently provable. There is a legal doctrine called “Fruit Of The Poisonous Tree” which would be invoked by the attorney, claiming that, but for the bad search, the other crimes would not have taken place.

Maybe. A harder sell.

Why do I keep saying an “experienced” attorney? Couldn’t anybody still breathing after law school handle a criminal case?

Well, the reason should be obvious, but I will spell it out anyway. A less experienced, or less careful, attorney might not have even noticed the error, let alone realizing its significance, and simply assumed the warrant was good. I have seen many cases where Ol’ Betsy, the family lawyer, who once did a pretty good job helping Cousin Joey on a drunk driving case, is contacted to take on the case as a “favor”. Although she is absolutely brilliant in some other area of the law…she does not know criminal law all that much. And so some detail is overlooked. Often, the decision is reconsidered, almost a year later, a few weeks before trial. That’s when they contact somebody like me to undo the damage done and try to save the day.

Clearly, the Defendant’s matter is an example of the lawyer doing his work well before trial and after the arrest. I have spoken in the past about how such a lawyer can be crucial even before the arrest. There are things that can be done prior to any charges that might prevent the charges in the first place, or, at least, aid you in your defense in the case when it gets to court.

So, the message is the same and I hope I answered the question of “why”.

As for not liking attorneys…that’s ok; you will when you need us.

Besides, our mothers thought we were kind of cute.

The full article of this story can be found at
http://www.itemlive.com/articles/2008/10/21/news/news08.txt

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