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.

Youtube Video And Victim’s Appearence Help Defendant And His Lawyer To Decide Against Boston-Area Trial

Last March, Pittsfield Police encountered a scene which one might expect in the city of Boston, but not way out in Pittsfield. But crime does not really respect such boundaries. In this case, law enforcement met unsuccessful shooter, Sammy S., 30, (hereinafter, the “Defendant”). The resulting charges? Attempted Murder. Last Wednesday, standing beside his attorney, the Defendant pleaded guilty rather than face what would have been a fairly interesting trial.

The change in defense strategy could have been encouraged by the fact that the reluctant complainant actually did show up to testify and that his testimony was going to be supported by an amateur video taken shortly after the shooting.

You see, the Defendant’s target, (hereinafter, the “Victim”) is still alive because the Defendant, who shot him multiple times at close range, failed to properly chamber a round when he took aim at the Victim’ head, according to a veteran Pittsfield police detective. Thus, when the Defendant actually put the gun to his head and pulled the trigger…nothing happened.

“[The Defendant] didn’t jack the round,” police say, applying the common parlance used to describe the process of firing a handgun. The Defendant allegedly then corrected the problem, but “the moment” had been lost. He proceeded to fire four shots at the Victim, but hit him in the torso and elbow. The Victim survived. The Defendant ended up arrested.

For some reason, though, the Victim initially refused to testify against the Defendant, which greatly frustrated police. However, they eventually persuaded him to cooperate, although the police still describe him as “reluctant” .

The shooting became a brief Internet sensation when a video of it surfaced on www.Youtube.com – the popular online video site – showing the wounded and bleeding victim being driven to the hospital by friends.

The video was apparently produced by Rob H., a Pepperell resident and friend of the Victim’s older brother. The footage featured images of the Victim during a panicked drive to the Berkshire Medical Center emergency room. Viewers of the video could hear the Victim describe blood running down his back, the discomfort of his clothing, and the terror of seeing a gun in his face.

The Victim’s older brother, was heard saying, “I can’t fight a bullet.” He was later seen trying to clean blood from his car as he recounted the night’s events, using strong racial language.

Posted within hours after the shooting, the videos – comprised of two, one-minute clips – vaulted to the 70th spot on YouTube, but were taken down within a day. Pittsfield police made copies of the videos, which they planned to use as evidence had the Defendant gone to trial.

The Defendant, who also has a criminal record in New York, was arrested by Pittsfield police the day after the shooting. Upon pleading guilty to the charges of Assault With Intent To Murder before his case went to trial, the Defendant was sentenced by the Court to serve e between 7 to 10 years in prison.

Attorney Sam’s Take:

This case illustrates a couple of interesting truths about today’s Criminal Justice System.

First of all, a crime victim does not get to control what happens in a criminal case. The parties of a criminal matter are the government (in this case, the Commonwealth) and the Defendant. Many people are surprised that, after they report being a victim, they cannot simply later call the prosecutor and say “never mind”. Crime victims can be forced to testify except in special circumstances. This is particularly true in domestic violence cases when the complainant changes their mind the next day and wants to turn the clock back. It does not work that way and prosecutors tend to be unwilling to simply dismiss the charges.

In the case of domestic violence cases, there are specific reasons for this. First of all, in days gone by, police would not treat these cases seriously and so, eventually, the spouse often ended up dead. There is also a syndrome called “Battered Spouse Syndrome”, which indicates that the victim of such violence actually blame themselves and so wish to drop charges, putting themselves even more into harm’s way.

However, a dogmatic adherence to the principle of never listening to a complainant is no real answer either as I have seen many cases in which the complainant later says that they simply called the police because they were angry, exaggerated what had happened, and law enforcement will still not drop the case.

Massachusetts still recognizes a spousal privilege which states that a spouse cannot be forced to testify against a spouse except in few specific circumstances. This is one of the exceptions, obviously, to the Commonwealth usually forcing a complainant to testify. Another is should the complainant have a Fifth Amendment concern that, should he or she testify, self-incrimination could occur.

Especially in cases in which a complainant is reluctant, or can actually refuse, to testify, the Commonwealth often relies upon extrinsic evidence as well. For example, there are evidentiary rules through which a complainant ‘s prior statement, although hearsay, can be revealed before the jury. It is quite possible that this was part of the thinking of attempting to use the Youtube video. Besides, giving the jury a taste of the “horror” of the scene is always a favorite tactic of the government.

We do not know why the Victim in this case initially would not testify. Very likely out of fear. The Commonwealth does not recognize that as a valid reason because the prosecution represents the general population, not the one complaining witness. Therefore, it is not unusual for the prosecution to make it clear to the complainant that he/she will be forced up onto the stand because of the overall responsibility of the prosecution to protect the community.

We could debate whether this really fulfills that function….but not today.

The full article of this story can be found at http://www.berkshireeagle.com/ci_11549313

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