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.

Boston District Attorney Decides Not To Press Charges For Detainie’s Death

Suffolk County District Attorney Daniel F. Conley has decided not to press charges against Boston Police officers in the case of David W., the 22-year-old Emmanuel College student (hereinafter, the “Deceased” who died after being arrested in June during Boston Celtics championship celebrations.

“As a result of a thorough, objective, and independent review of the facts, I have concluded that no criminal charges are warranted,” Conley said in a statement he delivered at an afternoon news conference yesterday. “The facts are clear and the medical evidence overwhelming that [the Deceased’s] death was the result of natural causes – specifically a serious, preexisting heart condition.”

The Deceased stopped breathing and his heart stopped beating while in police custody. He was taken to the hospital, but died 11 days after his June 18 arrest.

Conley, who reported his findings in a letter to Police Commissioner Edward Davis, said officers had struggled to subdue the Deceased, but the evidence was clear that officers did not use excessive force in arresting him.

Last month, the state medical examiner signed the Decedent’s death certificate, indicating his death was the result of a congenital heart defect.

The Decadents’ parents, who received a briefing on the investigation from Conley, said at a news conference this afternoon that they don’t believe that police are blameless in their son’s death. They also said they have not been given an adequate explanation of why he suddenly suffered an arrhythmia while in police custody and arrived at the hospital sometime later with significant brain damage because of a lack of oxygen.

“I think it’s a little unrealistic to ask us to believe that the police did everything right,” said the Decedent’s mother, wiping away tears as she sat beside her husband and their lawyers. “They’ve had all this time to piece together this great story that makes [the Decedent] look like he was guilty and he deserved this.”

Describing themselves as a working class family from Southwick, the family complained that they had to wait seven months to learn the results of the medical examiner’s report and Conley’s conclusions and that they still have not been provided with any of the documents supporting their findings. “We’re insulted that they treated us like we were insignificant,…We just wanted information. Now we have it and it just sounds like a lie.”

The Decedent’s father said that although his son had a preexisting heart condition, he led a very active lifestyle, was playing basketball hours before his encounter with police, and had never suffered an arrhythmia before. “I think it comes down to them saying it was a coincidence that David’s heart failed at that time,” he explained. “It doesn’t make sense to us. We’d like to see all the documents.”

Conley said that he would provide a copy of the entire investigative file to the family.

The Decedent’s fatal encounter with the police occurred when he was walking home with four friends after watching the Celtics’ NBA victory at a bar when they passed nine uniformed officers at the intersection of Fenway and Brookline Avenue, which was not one of the areas of the city that was filled with unruly revelers at the time. One of the Decedent’s friends, who spoke on the condition of anonymity, said that as he passed the officers, the Decedent said, “Wow, it seems like there’s a lot of crime on this corner.”

The friend said the clever retort to the remark was the Decedent, who was carrying a cup of beer, being slammed to the ground by officers, who ordered his friends to leave the area or face arrest.

Police have said the Decedent struggled with police. He was charged with public drinking and resisting arrest.

Conley said his investigation had found that the Decedent had tried to resist arrest by grabbing a nearby wrought-iron fence, and it took several officers to loosen his grasp and bring him to the ground, where he was handcuffed.

“They used a level and type of force appropriate to the resistance they encountered, and they complied with the Boston Police Department’s rules and procedures in doing so,” Conley said.

Of course, there had been one of him, and…..how many of them?

After the Decedent was handcuffed, Conley said, the officers tried to get him to his feet but he couldn’t stand. Believing he was drunk (apparently suddenly too drunk to stand despite the fact he had been walking just fine pre-pounce)– and unaware of his medical condition — police returned him to the ground, positioning him on his side in case he vomited, Conley said.

“Within one or two minutes, they noticed that he was not breathing and had no pulse and they immediately took action,” Conley said.

One officer who had been trained as an emergency medical technician began mouth-to-mouth resuscitation, another performed chest compressions, a third called for an ambulance and three more ran for an ambulance. Two off-duty firefighters responded and offered first aid before officers flagged down an ambulance.

The Decedent was taken to Beth Israel Deaconess Medical Center. He died June 29 after suffering a second arrhythmia.

Asked whether he was intimating that the Decedent would have died without any police interaction that day, Conley noted that the medical examiner ruled the death a natural one. He also said that Dr. James R. Stone, chief of the cardiovascular pathology service at Massachusetts General Hospital and a consultant for the medical examiner in this case, had issued an opinion finding that both arrhythmic events were the result of the Decedent’s abnormal heart — and that the second arrhythmia would have killed him even if the first had never occurred.

Police Commissioner Edward F. Davis said he believed police acted appropriately. He noted that they undergo extensive training, are encouraged to make arrests for public drinking, and are taught that handcuffing face-down is a safe means of restraining someone resisting arrest. However, police policies may still change as a result of the incident, he said. For instance, all nine officers who were present at the arrest immediately went to the hospital for stress treatment, leaving a superior officer who did not witness the incident to write a report on it.

“This whole event is being looked at very closely,” Davis said.

Apparently, no comment was made about the fact that charges for horriffic crimes like public drinking are often brought through a summons and not an actual arrest..at the officer’s descretion.

Attorney Sam’s Take:

I really have to wonder, since nine police officers were present at the arrest, presumably it taking the nine officers to “subdue” the Decedent, and those nine officers then had to be treated for stress because of the event…what kind of stress may have been felt by the lone Decedent and what effect that stress could have had on his heart.

It also strikes me as curious that these trained professionals in law enforcement would have thought that the kid, who had apparently been walking and talking without issue suddenly became “too drunk to stand” after what they describe of non-excessive force at arresting him. In my over 25 years in the criminal justice trenches, both sides of the aisle, I have not yet seen a case wherein a simple arrest increases the alcohol level in someone to the point of cancelling out their ability to stand.

But, hey, maybe I’ve just been sheltered..

There are a couple of points in this case that are worth nothing.

First of all, we have yet another example of one of my most urgent warnings…police do not enjoy having their authority questioned. Part of this is out of necessity. Particularly at a crime scene, they must feel like they are in complete control of the situation. In fact, for the sake of their own safety, as well as often the safety of the general public, they need to be in control of the situation.

Of course, was this really a “crime scene”? True, the would-be defendant was committing the capital crime of openly drinking a beer…but usually the police can handle that with even fewer than nine officers. And, of course, usually nobody dies.

The lesson, however, is still there. Mouthing off at officers is not a good idea. Whether or not they respond as they did in this case…and whether or not you have a heart ailment…doing so is unlikely to simply result in clever repartee.

It is also worth noting that the District Attorney was investigating whether criminalcharges should be brought against the officers. As the family already had lawyers present, it is pretty clear that a civil case for, among other things, wrongful death, is coming in the near future. This can be done independent of any ciminal investigation regarding allegations of homicide. The fact that the Decedent had a pre-existing ailment is unlikely to help the police very much. Under our law, you take your plaintiff as you find him. It is known as the “Eggshell theory”. And, in a civil action, the burden of proof is merely a preponderance of the evidence (in other words, more likely than not) as opposed to proof beyond a reasonable doubt.

In any case, in case you are wondering, mouthing off at officers and drinking in public is not punishable by death.

Ususally.

Have a good, safe and law-abiding weekend!
The full article of this story can be found at http://www.boston.com/news/local/breaking_news/2009/01/report_expected.html

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