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.

Prosecuting Attorneys Seek To Continue Holding Suspects Arrested For Illegal Gun Possession In Jail Without Bail Pending Trial

Monday saw the dawning of a new week. Boston-area newspapers, however, are discussing what is really an old problem. The subject of illegal possession of firearms is once again in focus. Let’s take a story from the town of Lawrence, for example. Police say that a 20 year old gentleman, Emmanuel M. (hereinafter, the “Defendant”) will now be needing the help of a criminal defense attorney due to his arrest early Saturday for firing a gun in the middle of West Street.

When police were dispatched to a pizza shop near Cross Street and Broadway shortly after midnight, they say they noticed the Defendant pull out a black handgun and begin to run.

Well, kinda run.

After tripping several times as he dodged police cruisers – bouncing off one – the Defendant is said to have thrown his gun over a 3-foot high fence on Holly St. as he was wrestled to the ground by Officer Carleton Trombly.

Officer Christopher Bussey assisted Trombly in arresting the Defendant. Police said they believe that the Defendant had been drinking as they smelled the odor of alcohol on his breath and found a 1-liter bottle of vodka in his backpack that was half full. The police also say they recovered a .22-caliber handgun with a spent casing in the chamber
The Defendant was charged with unlawful possession of a firearm, carrying a firearm without a license, discharging a firearm within 150 feet of a highway, resisting arrest and underage possession of alcohol
.
Unlicensed possession of a firearm is illegal, we all know that. If convicted of possession of a firearm, one can go to jail. However, to some, this is not satisfactory.
Recently, the Supreme Judicial Court ruled that possession of a gun, in itself, is not a proper basis for holding someone pending trial without bail. Previously, prosecutors had been looking to include such possession as a grounds for a dangerousness hearing which would enable them to hold a defendant in custody without bail while waiting for their trial.

There are those who are trying to take action and challenge this ruling.
For example, Governor Duval Patrick has filed a bill to address the state Supreme Judicial Court’s 4-1 decision. Last week, the Governor indicated that his proposal will help to prevent “gun violence”, giving law enforcement the “critical tools they need, and sends a very strong message that illegal gun use will not be tolerated,”

Not surprisingly, many prosecutors agree with the Governor.

Take, for example, the case of Bristol District Attorney Sutter. He welcomed the governor’s stance. “We enthusiastically support the governor’s legislation, especially the section which would clearly include illegal firearms crimes inserted into the dangerousness statute,” he said.

Not a big surprise. It was Sutter’s policy of requesting dangerousness hearings in gun possession cases, asking that suspects be held without bail for up to 90 days while the prosecution prepares for trial.

Governor Patrick’s bill makes this procedure available to prosecutors for charges that involve illegal possession, use, or trafficking of guns.

It does not end there, though. It also makes it a felony to possess a gun while committing certain crimes that might otherwise be misdemeanors.

It also removes a requirement that prosecutors prove a gun is operable to be considered a firearm, a change that will bring state law in line with federal regulations.

Attorney Sam’s Take:

It should be noted that the SJC’s ruling did not indicate that gun possession was not to be considered at all in dangerousness hearings. Dangerousness Hearings are to determine whether a criminal defendant is a threat to the community while awaiting trial. Therefore, it is something to consider, such as the use, if any, of that firearm and any other evidence that reflects the defendant to be a danger.

It should also be noted that, even at the dangerousness hearing, a defendant is supposed to be presumed innocent of the charges pending against him or her. There has not yet been a trial, after all. Therefore, does it make sense that a person being charged with gun possession, absent evidence of using it, with no prior record or claims of violence against him should be in danger of being held without bail awaiting a trial which is necessary to determine whether he is even guilty as charged?

But then, I have not been elected to make the laws…I just defend my clients and argue about the laws.

So, arguments aside, what does this have to do with you?

It informs you that gun possession is becoming one of the those “hot topics” about which law enforcement, the media and the courts are becoming more and more concerned with. There are many in our society who, although they know it is illegal, carry around a gun because they feel it is necessary for their protection.

If you feel you need a gun…do it the legal way and get a license. If you want to carry it out of your home, you will need a license for that as well. However, it is becoming apparent that side-stepping these requirements will have a better chance of landing you behind bars for longer…and much sooner than before.

By the way, “I need the gun because in my line of business, namely, drug trafficking, many of my rivals have guns…” is not a valid defense.

The full articles of this story can be found at
http://www.eagletribune.com/punews/local_story_131025156.html , http://www.bostonherald.com/news/opinion/editorials/view/2009_05_11_Patchwork_package/srvc=home&position=also and http://www.thesunchronicle.com/articles/2009/05/08/news/4904090.txt

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