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 Criminal Attorney/Defendant “Not Guilty” Of Assault…Again

He is a famous Boston Defense Attorney…but not necessarily for his legal work. Mainly, it is his role of client that has brought Attorney Gary Z, 37, (hereinafter, the “Defendant”) to his present notoriety. Well, there was also that 2001 People Magazine that named him as one of the “hottest” bachelors around…!

But I digress.

The Defendant, a former prosecutor in Suffolk County, has been spending alot of time, both in and out of state, at the table on the other side of the room for the past few years. These matters included things like rape allegations brought by three different complainants.

All three complainants lost; the Defendant was acquitted twice; the third case was dismissed.

Most recently, the Defendant was on trial at the Boston Municipal Court for charges of Massachusetts assault and battery . He was accused of assaulting Boston police Sgt. David O’Connor along with the accompanying charges of disorderly conduct and resisting arrest. The allegations resulted from a June 18th Celtics game which erupted in what has been called “NBA Championship Fendemonium”.

O’Connor alleges the Defendant slugged him and fled when the officer caught him urinating in public. The Defendant, however, maintains it was he who was the victim of a vicious downtown beatdown by a half-dozen cops.

“I never put my hands on that police officer,” he said. In fact, the Defendant testified, the Sgt. apparently mistook him thumbing through the cash in his wallet near a building at State and Congress streets for publicly urinating, and that while fleeing what he feared were muggers, a half-dozen cops in riot gear maintaining crowd control savagely beat him with 3-foot-long batons.

O’Connor testified no such beating occurred, but that it was the Defendant who slugged him trying to escape arrest.

Who did the jury believe?

Well, a time-crunch drama took place that was worthy of a television series…although not the series in which the Defendant was once sought after to appear in, “The Bachelor“.

The evidence was in. Final arguments had been concluded. The Honorable Judge Annette Forde had charged the jury on the law.

While the jurors deliberated, the Defendant began to have conflicting thoughts about his likelihood for a clean sweep of criminal justice.

He decided the odds were not in his favor. As he was on the verge of admitting that prosecutors had the goods for a jury to find him guilty, the courtroom telephone rang.

It was the jury; they had arrived at a verdict.

The admission was halted.

The result? A clean sweep. Not guilty.

Nonplussed by his attempted admission, the Defendant told the press, “I would think most people want to believe police are telling the truth. In this case, they weren’t”

Jake Wark, spokesman for Suffolk District Attorney Daniel Conley, said, “We’re disappointed with the verdict, but satisfied we put in an ethical, honest case to the jury.”

Attorney Michael Natola, with whom the Defendant helped exonerate accused mass murderer Kathleen Hilton in February, said, “[the Defendant]’s got a horseshoe up his (expletive), but I think he just burned off his ninth life.”

Attorney Sam’s Take:

First, let me clear up the disposition which was about to take place as the jury deliberated.

Generally, the parties are able to reach agreement to a matter, even during trial, until the jury has delivered its verdict. However, it is often too late to do so once it is known that the jury has reached a decision.

In Massachusetts, there is a conclusion which is one step below actually pleading guilty. It is called a Continuance Without A Finding. In order to get a CWOF, the defendant “admits to sufficient facts”. In other words, he admits that there are facts by which the jury could find him guilty. This is not the same thing as pleading guilty. “Guilty” means a criminal conviction; “Admission” means a CWOF.

From the defense point of view, a CWOF is good to get if it looks like the alternative is a conviction. It is not, however, without its risks.

When a case results in a CWOF, it is continued (delayed) for a period of time (usually around a year) with there being no finding of guilt. In order to get the CWOF, however, the defendant has admitted that there are sufficient facts to find him guilty. After this probationary period, if there are no problems, the matter is dismissed. However, if there are any problems, the matter can turn immediately into a guilty finding.

Also, certain agencies treat a CWOF like a guilty. For example, the Department of Immigration is known to deport people on the basis of the CWOF.

So, what are some of the “problems” that could result in a CWOF actually turning into a guilty finding?

Well, if there were conditions placed on the defendant, and those conditions are breached, that is such a problem. As with any other probationary term, a new arrest, or criminal complaint, is such a problem. This means that if the Defendant had gotten a CWOF (which, it would seem, what he was trying to do before the jury called), and he got arrested for something unrelated during the probationary period, the CWOF would likely turn into a guilty finding and he would be resentenced. This would be separate and apart from his defense of the new matter. The result of the new matter would not matter – the mere arrest was the violation of the CWOF, just like in any other type of Massachusetts probation violation.

Given the Defendant’s track record…it was best that he not get the CWOF. It might have simply just delayed the inevitable conviction.

The full articles of this story can be found at : http://www.bostonherald.com/news/regional/view.bg?articleid=1163132 and http://www.bostonherald.com/news/regional/view.bg?articleid=1163071

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