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 State Police Drop Appeal For Traffic Violation, Ending Defense Attorney’s Confusion

Welcome to Boston, Massachusetts, where there dwells, according to MSNBC-TV commentator Keith Olbermann, his “Worst Person in the World.” (video available at http://blogofbile.com/tag/michael-galluccio/). He is State Trooper Michel G. (hereinafter, “PO Nobreak”). And he has one local attorney, other than me, scratching his head in disbelief.

PO Nobreak gained unwelcome fame late last year for making a woman who was in labor wait to get to the hospital while he cited her husband for driving in the breakdown lane. The story, first reported in The Boston Globe, ricocheted around the country and sparked outrage. But all that notoriety was not enough for the State Police.

Even after the new father, John D. (hereinafter, the “Scourge” ), appealed the $100 ticket and a Cambridge clerk magistrate tossed it out, the department refused to give up. A lawyer for the State Police challenged the clerk magistrate’s decision and appealed to restore the ticket late last month. A hearing was scheduled before a Cambridge District Court judge March 18.

The Scourge’s attorney said that in a dozen years, he’d never seen the State Police appeal a traffic ticket. He couldn’t quite believe they were going to pursue one against a the husband of a woman in labor.

“When I asked, ‘Are you sure the State Police want to be on record as appealing this?’ what he said reportedly said was, “I just wouldn’t have any credibility if I did not appeal this,'”

It is questionable whether PO Nobreak, a trooper since 1999 with apparently eight complaints against him for conduct on the job (although only one resulting in disciplinary action, has maintained his stellar credibility.

You see, while the State Police had previously maintained that the trooper was within his rights to ticket the Scourge for illegal use of the breakdown lane, things have changed. The Boston Globe contacted State Police Spokesman David Procopio to inquire about the situation. Within an hour and a half of being contacted by the Globe, the State Police dropped their case. State Police Colonel Mark F. Delaney “immediately ordered it to be rescinded,” Procopio said.

Procopio acknowledged that it is rare for State Police to appeal a clerk magistrate’s decision and said they do so only in a “low percentage” of cases. In this case, he said, “We respect the magistrate’s decision and it does not serve the interest of justice to pursue this beyond the decision.” He also said that state troopers are expected to make judgment calls all the time. “We understand that there may be a backlash to that,” said Procopio. “That goes with the territory and we understand that. That said, we make the calls based on public safety and the interest of justice — and not public opinion.”

Speaking of “public opinion”, how did the Globe find out about this case? Well, it seems that the Scourge contacted the Globe in December after initially writing it as a letter to the editor. According to the Scourge and his wife, they were trying to reach Mount Auburn Hospital in morning rush hour traffic Nov. 18 when Mrs. Scourge was in labor with their daughter. Her contractions were only about three minutes apart.

Two other troopers along their route had allowed them to drive in the breakdown lanes to reach the hospital, they said, but when they pulled up in the breakdown lane behind PO Nobreak — who was already giving someone else a ticket — he said no. He offered them an ambulance, which they thought would be useless in the traffic. Deciding that they did not have a true emergency, PO Nobreak then made them wait on the roadside while he finished writing someone else’s ticket, warned them they would be getting a citation in the mail, and seemed to cast doubt on Mrs. Scourge’s labor, asking to see her belly.

Procopio noted that PO Nobreak had the discretion to decide whether or not to write a ticket and the prosecutor had the discretion to decide whether or not to appeal. Likewise, the clerk magistrate had the leeway to decide whether to uphold the ticket or drop it based on the evidence presented from the ticket and testimony the Scourge gave in a hearing that lasted about five minutes.

Cambridge Clerk Magistrate Robert Moscow said both sides had a “reasonable argument” but he found the Scourge not responsible.

Attorney Sam’s Take:

First and foremost…my most usual warning…if the police stop you, do not engage. Quietly comply and take the matter up with counsel in court. In this case, the Scourge did the right thing. Had he started swinging at PO Nobreak, for example, after the trooper demanded to see his wife’s belly, this whole incident would have ended differently…and worse.

Second, in case you did not already know, driving in the breakdown lane is considered a Massachusetts traffic offense.

Usually.

However, just as Massachusetts assault victims are usually not prosecuted for bleeding on the sidewalk after a shooting for littering, circumstances are normally taken into account.

Had the police continued to press the appeal, the likely result would have been the same. Most rational people would have done what the other officers had done prior to the PO Nobreak confrontation, namely, letting the car go on to the hospital. An appeal of the clerk magistrate’s decision, when heard by a judge, would likely have been upheld.

This is likely one reason the Scourge’s attorney could not believe that PO Nobreak wanted to appeal.

Sometimes, public attention, swept up by the media, has the effect seen in this case. Usually, however, it is the opposite. Often, the fear is heard, “What if I let him go and he goes out and kills somebody?” Take it from a former prosecutor…that fear is usually of the resulting public outcry.

The full article of this story can be found at http://www.policeone.com/legal/articles/1786094-Police-drop-appeal-against-man-who-got-ticket-while-wife-was-in-labor/

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