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.

Children Found At Risk As Boston-Area Day Care Owners Are Arrested In Connection With Assault Incident In their Charge

Now, I know what you are thinking. You see “Boston-area” and “Day Care Center” and you think of things like the infamous Fells Acres case and expect to find yet another story involving allegations of sexual assault being battled by a myriad of criminal defense attorneys.

Often, you would be correct. Today you would be wrong.

One of the constant messages of the Boston Criminal Lawyer Blog is that one never knows where criminal allegations may come from next. In this case, there are criminal allegations…but not of the sexual nature. In fact, not even of the intentional nature.

According to a local paper, the owners of a Fall River day care center were arrested last Friday. The police say that they failed to get medical help for two children who had been bitten by a third child (hereinafter, the “Biter”) under their care. Apparently, Ashraf W., 40 and his wife, Mervat H., 35, the owners of the center and now collectively the “Defendants” are each charged with wanton or reckless endangering of a child.

Specifically, the allegations amount to permitting substantial injury to a child and permitting injury to a child. No, they are not charged with actually committing the assault as that was apparently the doing of another child.

According to the Commonwealth, the injuries were sustained at the day care center, which is underneath the Defendants” home.

Of course, we are not talking about the garden variety injuries either.

One of the victims, a 2-year-old girl, was hospitalized in Rhode Island with a severe injury to her left eyelid and may have to undergo plastic surgery. The police say that she had been bitten by the Biter 12 times.

A 1-year-old boy had also been bitten on the temple by the Biter during the incident, but was not hospitalized.

Now, you may have visions of the Defendants callously ignoring the cries of the young children, left bleeding from their faces from the Biter. However, this is not the case according to law enforcement. Apparently, it was the Defendants themselves, for example, who contacted the girl’s grandmother at 2 p.m. on Monday after they had discovered her injuries. According to the Herald News, however, they told the grandmother that the injuries were “not that bad.”

The grandmother, apparently unalarmed and, to date, uncharged by the Commonwealth, did not rush to pick the girl up. Instead, when the girl was dropped off at her grandmother’s home seven hours later (which is when the woman got off from work), she saw the injuries and transported her granddaughter to St. Anne’s Hospital.

According to the police, the Defendants never contacted the mother of the 1-year-old boy victim of the Biter.

Attorney Sam’s Take:

As you may have noticed from past postings, I very seldom use the word “victim”, but usually say “complainant”. This is because I do not assume all the facts must necessarily be as the prosecution contends they are…call it an occupational hazard or, simply, actual experience. However, it is difficult to refer to 1 and 2 year old children, bleeding from bite marks on their faces as anything but “victims”.

As a society, I find that we like to have clear-cut “bad guys” to blame whenever possible when disquieting events such as this occur. This is why there is often a certain amount of “scape-goating” and rushing to judgment that this blog has so often pointed out.

In the instant case, the Biter is the apparent cause of the biting. However, it is difficult to jump up and down and really put the blame at the feet of such a young assailant. Rest assured, if the Biter had been older, that problem would not be before us.

Since we cannot hold the Biter truly responsible, and we have such an ugly scene, who can we drag into the criminal courts to answer for it? One might make the argument that the grandmother was negligent, at least in terms of the girl victim, because she did not leave work and rush to the child’s side. Of course, she is probably doing a fair job of blaming herself as it is and, after all, she was allegedly told that the wounds were not that serious.

Clearly, it was the Defendants who had been responsible for the childrens’ safety and wellbeing while the kids were in their care. It also goes without saying that, according to the news, they failed at that duty on this particular day. Not only was the supervision such that the Biter was able to cause all the damage that he/she apparently did, but they did not immediately call for medical attention, minimized the injuries to the grandmother and did not even call the boy’s parent (although, it would appear that the injuries sustained by him were significantly less than those suffered by the girl).

In days gone by, one would read this story and actually be able to smell the upcoming lawsuits. Today, we may be sure that the lawsuits are coming…but will have to wait their turn.

This is because today, civil personal injury lawsuits alone are not deemed sufficient in these types of cases. Today, we bring the weight of the Criminal Justice System down on the accused wrongdoers…even if the wrong-doing is actually “negligence”.

Until today’s justice system, “negligence” has been a cornerstone to the Civil Justice System.

This is not to say that it had previously been only purely intentional acts which graced the halls of criminal justice. No, reckless and wanton acts, sometimes referred to as “depraved indifference” to human life have long been a part of the system. For example, you shoot a gun into some house without a care of who a bullet hits and you kill someone…it is a homicide. If you are in the middle of an automobile chase with the police or are driving drunk and you cause the destruction of property, that destruction is, of course, a criminal act.

However, we are unaware of any facts that would make the Defendants acts in this case “reckless” to that same level. Usually, there is some kind of intentional act which sets the stage for the harm caused. In this case, it would appear to be simple negligence both in the supervision as well as the action after learning about the Biter’s misdeeds.

We could debate whether this trend of the blend between civil justice and criminal justice is a good or bad thing.

But not here. Not today.

This blog concerns criminal law issues and what they mean to you. The golden question, therefore, is what does this case mean to you?

A lot, actually.

It signals you once again that you cannot simply sit back and relax if there appear to be allegations or even the suspicion of wrong-doing on your part. The old adage of, “Ah, let ’em sue me” is not only foolhardy in terms of civil litigation, but, now, quite dangerous in terms of criminal justice. Maybe they will sue you…maybe they won’t.

But maybe they’ll rely upon law enforcement to do it for them. After all, state or federal prosecutors carry much more clout than litigators. Litigators cannot end your future hopes and dreams by destroying your record. Also, litigators cannot simply throw you in jail.

Litigators also often cost money; prosecutors do not.

“Sam, are you really saying the prosecutors and police officers simply see themselves as litigators of choice to be used by aggrieved parties who simply do not want to pay for a lawyer?”, you may ask.

For the vast majority, the answer is “of course not”. However, we are talking about allegations of wrongdoing and, often, horrible results here. The line between what is criminal and what is simply someone’s fault has become much thinner than you might imagine. Further, when there are cases which really pull at the human heartstrings, people get angry and want real punishment. Period. A long term lawsuit is not what the public usually feels it wants.

While it is the prosecutor’s job to “do justice” and sort out what is civil and what is criminal…prosecutors tend to be human beings too. These human beings have their own prejudices and emotions. Often these emotions include anger and fear.

Fear?”

“Oh, most definitely fear. Fear that tomorrow’s paper may have a nice little picture of them or their boss reflecting how they have made a decision not to prosecute a certain matter and calling them “soft on crime”. Fear that the allegation is that they did not penalize a defendant enough.

And, of course, that fear I hear almost every day and keep repeating back to you. The fear of, “What if I cut him loose and he goes out and kills someone?”

My point?

You’d better be afraid too…or, at least, wary. If circumstances, or your own actions, have put you in a position where criminal allegations could potentially be brought, you want to consult an experienced criminal defense attorney to advise you, look into the matter and, potentially, defend you.

After all, it may be their allegations….but it is your life.

NOTE TO READERS: As you may have noticed, some changes are being made to this site this summer. This includes this daily blog moving to a 4-day format instead of the a 5-day format. Fridays will normally be the day which will not have the new posting. Unfortunately, court schedules being what they sometimes are, as well as the priority I must place on my clients’ needs, days are sometimes missed, as was the case yesterday. However, I will continue to do my utmost to bring you an informative and, I hope, entertaining posting 4 days a week. As always, if you have a question or comment regarding the Blog or your own legal concern, please feel free to contact us as indicated at my profile which you can find here.

In the meantime, thanks for reading!

For the full article concerning today’s posting of the Boston Criminal Defense Lawyer Blog, go to http://www.thebostonchannel.com/news/19885992/detail.html

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