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.

Love, Drugs, Sex, And Violence Outside Of Boston – Defense Attorney’s Needed

Lack of good judgment, while not a crime in itself, easily causes arrests. Here are two stories from the Boston area which illustrate this point and show how bad judgment can be expensive in the way of time, money, stress and the overall need for a defense attorney.

Beverly Police have charged two men are charged with the rape of a woman after a party and a night of drinking and smoking marijuana over last weekend. Another man known only by his first name (hereinafter, “Unknown Defendant”) could also face charges – if he is ever identified.

Terrence C, 17, of Beverly and Derek B, 18, (hereinafter “Defendants 1”), of East Bostonare the two identified defendants.

The rape reportedly happened on December 19th at a Cabot Street apartment and was reported to police just after midnight on Sunday morning, December 21st when the victim showed up at the Beverly Hospital emergency room. Beverly Police arrested the two men about 9 a.m. on Sunday.

The complainant, who is 18 years old, told police that it all began at a house party on Friday when the victim and the men went to one man’s apartment because he was under house arrest with a bracelet and had to be home, according to the police report.

Apparently, being under house arrest with a bracelet on is not a sign to be wary to today’s youth.

When they arrived, the complainant told police she gave Unknown Defendant $30 in cash to buy her Mike’s Hard Lemonade and grape vodka. When they returned to the apartment they all smoked marijuana and drank together, the complainant told police.

Just another typical Friday night in the ol’ north shore!

Then, she went upstairs to the forced-homebound youth’s bedroom where she said she was in and out of consciousness but remembers him raping her and telling him to stop.

Next, she says she did what any victim of a heinous crime of violence would do – she went back downstairs and smoked more marijuana. She then returned upstairs with the other lad, who she said then raped her. After that event, she says she went back downstairs and later returned upstairs with the Unknown Defendant. She says that he told her that he just wanted to cuddle. But, she indicates that he was not a man of his word. She told the police that she passed out and found him on top of her.

Naturally, she then fell back asleep. She woke up later between Defendants 1.

Two days later, Defendants 1 were in custody.

Defendants 1’s attorneys say both clients deny the charges and say she leveled the accusations to avoid getting in trouble.

Bail was set at $1,000 cash, and both were ordered not to have direct or indirect contact with the victim
Elsewhere, in Pittsfield, Massachusetts, other denials were taking place in court. Douglas S., 31 (hereinafter, “Defendant 2”) appeared before the Berkshire Superior Court on Monday to deny committing multiple drug and weapons offenses at his arraignment.

Defendant 2 pleaded not guilty to single counts of possession and intent to distribute cocaine, oxycodone and marijuana. He also pleaded not guilty to numerous firearms charges, including being an armed career felon ( a charge brought because his criminal record includes prior violent crimes).
But what today’s daily blog is more interested in is what happened outside the District Court in this case last month.

As officers guided Defendant 2 from a police cruiser to the courthouse, his 26-year-old wife, Jena, approached and insisted on embracing her husband, according to case records. The officers purportedly told her that she could not do so and warned her not to touch her husband.

She didn’t listen.

And so a physical altercation resulted and she ended up being arrested for assault and battery on a police officer, disorderly conduct and resisting arrest.
Several other law enforcement officials, including police and Massachusetts Trial Court officers, helped subdue Defendant 2 and his wife.

Defendant 2’s adventures are not likely to happen again outside the District Court; he has since been indicted, which led him up to Superior Court this Monday.

Samuel’s take:

Love can be a many splendid thing. Sex is not so bad either. However, there is a time and a place for each. For example, you’ve really got to have willing participants and not do it in front of law enforcement.

The case of Defendants 1 and their mysterious counter-part is a familiar one to me. No, I have not been involved personally in such a debacle, but I have handled many a case with similar facts. Was the complainant really conscious? Was she raped? Does she even know? If she was raped, did the defendants know that they were raping her?

Questions abound in this case and it seems like the Commonwealth is going to have a difficult time proving guilt beyond a reasonable doubt in this one.

However, there are already lessons available for us in both of these cases.
First of all, although I am not a drug or alcohol counselor, I submit to you that the whole scene in the first story, from the beginning, was a disaster waiting to happen. Let me pose a scenario to you – let’s say that the complainant was really stoned but clearly did not want o have sex and communicated same to all three gentlemen during their respective…turns. However, they, somehow not quite as stoned, thought that since she was so incapacitated, she was unlikely to either remember or care if they had their way…especially since she was barely conscious in the first place.

Rape?

Let’s change the scenario and focus on the Unknown Defendant. Let’s say he, indeed, wanted to cuddle. However, in mid-cuddle, he got rather turned on. In fact, they started kissing and touching..and then she said she wanted to go to sleep now. He, feeling extremely turned on, wanted to go further and, while she was dozing, had sex with her.

Rape?

One more – let’s say the defendants were all quite wasted and so did not really mean to rape her…they thought she wanted to have sex.

Rape?

The answers to all three of these questions are “yes”. While there are many subsections and complexities to many of our laws regarding sex crimes, sex with someone without their consent is rape. Period.

There is no “She was too stoned to make herself clear” defense in the Commonwealth. Likewise, “I was too wasted to know what I was doing” does not help either. Voluntary intoxication is not a defense in these cases.

We do not, and should not, blame the victim in our society. However, I think it is an easy assumption that the complainant was not exactly the picture of good judgment that evening. Further, her version of events in itself presents some credibility problems right off.

Speaking of bad judgment, let’s turn to Defendant 2 and his lovely wife.

Sometimes you just want a hug. I understand that. I also understand that it must be emotionally devastating seeing a loved one moved about bound in the Commonwealth’s bracelets of shame. However, when that loved one is in custody, and those in who’s custody he is in tell you “hands off”…the best course is to listen to them.

They are in charge of the person who is in their lawful custody.

As I have mentioned many times in these daily blogs…do not fight with the police. Do not try to run, fly, trick, or out-talk the police. You will not win.

Quietly comply and, if you feel wronged, contact an experienced criminal defense attorney as soon as possible.

These cases illustrate how bad judgment, sometimes with the aid of a little chemical help, can lead to disaster. If you find yourself in such a situation, do not make it worse. Contact an experienced criminal lawyer who can advise you of your rights and help you to preserve them.

You may be wondering why I did not mention the infamous Hey, I Bet I Can Make This Situation Worse Club in this blog. The Club is closed for membership for the holidays.

In honor of Christmas, there will be no daily blog tomorrow – you get a day off. However, we will be back up and writing on Friday.

Have a great and law-abiding holiday!

Samuel Goldberg is the senior criminal defense attorney at the firm of Altman & Altman, LLP. A former prosecutor in New York, he has worked as a Boston defense attorney over 18 years. 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

The full articles of this story can be found at http://www.dailynewstribune.com/state/x16585087/2-face-rape-charges-after-night-of-booze-and-pot and http://www.berkshireeagle.com/ci_11294908

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