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.

Murder Trial Finally Begins After North Of Boston Lawyer And Doctors Examine Client And Her Statements

As a defense lawyer, one occasionally handles cases that seemingly will not end. Through my years in Boston and environs, I have had more than my share.

This case was probably regarded as one of those cases.

62- year-old Kathleen H. (hereinafter, the “Defendant”) is finally going to trial. She is charged with setting a fire that killed five people ten years ago. The trial started this week in Lawrence Superior Court.

Prosecutors say that she set a fire at a Lynn home where her son’s ex-girlfriend lived because she wouldn’t let him see his two kids. The ex-girlfriend and the Defendant’s grandchildren survived, but members of another family that lived in the same building died. The deaths included Heriberto Feliciano, 34, his wife, Sonia Hernandez, 32; their daughters, Sonia, 12, and Maria, 13; and their niece, Glorimar Santiago,11, who was sleeping over. All died from smoke inhalation.

The Defendant is charged with five counts of second-degree murder as well as a single count of arson.

She has been held in jail for a decade while her lawyer fought to keep the jury from hearing an alleged confession she made after the February. 24, 1999, blaze, as well as to determine her competency to stand trial.

The Defendant’s lawyer said his client has been working in the kitchen at the state prison for women in Framingham.

Part of the delay was a long-fought motion to suppress the Defendant’s confession, claiming the woman made her statement involuntarily. The lawyer said he had to push for the statements to be suppressed – no matter how long it took. The case went to the Supreme Judicial Court twice.

He explained, “There were two competing constitutional rights at work here – her right to a speedy trial and her right to a fair trial by virtue of having unlawfully taken statements suppressed,” Ultimately, the jury at his client’s trial will be allowed to hear portions of her statements to police, including her claim she started the fire by pouring scented oil on the wooden stairway and lighting it with a cigarette. She allegedly said she hoped if her son’s girlfriend, Krystina Sutherland, had nowhere to live, she and the two children would return to her son, Charles Loayza, then 22.

The jurors will not, however, be allowed to hear a statement she allegedly made to a court officer after her arraignment: “My son, I hope he forgives me. I could have killed my grandchildren.”

Following her arrest, the Defendant was found incompetent to stand trial, mostly because she claimed her jail cell was haunted that she could see spirits. A later psychiatric evaluation determined she was able to understand the criminal charges with the assistance of an attorney.

And so she was deemed competent again.

The delay of the trial, Essex District Attorney Jonathan Blodgett said, was unavoidable. “We would have liked to have tried the case sooner, but we respect the process and the defendant’s rights,” he said.

Jury empanelment began in Lawrence yesterday and 7 of 16 jurors were impaneled. It is scheduled to resume today.

Attorney Sam’s Take:

In Massachusetts, it usually takes a year or two for murder cases to go to trial. However, there are exceptions and this, obviously, is one of them.

Often, a client wants to “get it over with”. However, it is important for an attorney to make absolutely sure that his or her client has as fair a trial as possible and that all rights that can be protected are protected.

The laws regarding voluntariness of statements by a defendant and competency to stand trial can be complicated…but they are critical in ensuring a fair trial. After all, how can a client participate in her own trial if she does not understand what is going on?

The process of determining competency, or determining the possibility of an insanity defense, can take a great deal of time. It means examinations by doctors as well as, at times, confinement to institutions. However, the process is necessary under certain circumstances.

Likewise, the issue of alleged confessions is an important one. I have suggested in previous blogs that, generally, it is not wise to make statements without an attorney present…if even then. There is a reason for the so-called “Miranda Rights”. It is easy for a person being investigated or arrested to feel like he must say “something” on his own behalf or else all is lost. Police officers are generally well trained and somewhat talented in the encouragement of this feeling. They make the suspect feel as if they are only searching for the truth and may even be on his side. Or they can make it feel like the suspect has no choice but to tell them what they want to hear.

The fact is that, usually, when the investigation gets to this stage, the search for truth on the part of the police is long-since passed. It is now time to gather evidence. Therefore, the “anything you say can be used against you” part of the Miranda Rights is absolutely correct. And, if at all possible, it will be used against the suspect down the road.

Another factor is that our laws are clear that police officers are allowed to lie and trick suspects into making statements. And so, often, the line between deception and coercion needs to be examined in order to determine the voluntariness of an alleged statement which could actually mean the difference between a guilty or not guilty finding.

The alleged confession in the Defendant’s case is obviously quite damning. What were the circumstances behind the statement? Was the statement really voluntary? These are questions that must be pursued by defense counsel regardless how long it takes.

The full articles of this story can be found at http://www.itemlive.com/articles/2009/01/13/updates/doc496d06e119105231312382.txt , http://news.bostonherald.com/news/regional/view.bg?articleid=1144419&format=text and http://news.bostonherald.com/news/regional/view/2009_01_12_Trial_set_for_Mass_woman_charged_in_fatal__99_fire/srvc=home&position=recent

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