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.

Murder Suspect Is Jailed Without Bail Pending Probation Surrender As Boston-Area Media Focuses On His Prior Criminal Record

Sunday’s Boston Herald, along with several other local newspapers, focused on a particular aspect of a recent Framingham murder case. In the Herald, the headline read, “Suspect in Framingham stabbing has long police record”. While said record is normally inadmissible in court (except under certain circumstance) it is, for now, a noteworthy part of the story as far as the public is concerned. It is yet another illustration of what the Boston Criminal Lawyer Blog has long been warning Massachusetts readers, particularly the young among us. Namely, the errors one makes in the past, even while a juvenile, can greatly affect our future in terms of criminal justice.

The man accused of the homicide in this case is 19-year-old Dan G. (hereinafter, the “Defendant”). He is charged with Murder in the First Degree in connection with a fatal stabbing in Framingham which is said to have occurred on June 14th. While one would imagine the circumstances surrounding the attack would be the focal point of the public’s interest in the matter, said facts now seem to have taken a back seat to the Defendant’s criminal history. Yes, this would include his juvenile history which, of course, is usually considered “sealed” and inadmissible against him.

The Defendant is currently being held without bail. Part of the reason for this may well be his present circumstances. After all, Murder 1 is considered the most serious of crimes and, in fact, carries a sentence of Life without the possibility of parole in the Commonwealth. Further, the Defendant’s own statement, not surprisingly, does not help his situation. He is reported as saying that he does not remember stabbing the victim, but does recall standing over him holding a bloody knife.

The Defendant’s familiarity with knives, remembered by him or not, has now become of interest to the public. That familiarity, of course, is intimately entwined with his prior criminal record. For example, on April 7th, he is said to have used a knife to threaten a group of teenagers he claims were about to fight one of his friends. While you might see that as self-defense, or the defense of another, the Commonwealth did not see it that way. Law enforcement, no great fan of knife-waving “vigilante” protectors, arrested the Defendant and charged him with assault with a dangerous weapon.

It likely did not help that the friend the Defendant had been trying to protect went public with the notion that the Defendant was “intimidating”, which is why he had enlisted his aid in the first place.

During the Defendant’s booking in that case, the police noticed that the Defendant had a previously inflicted knife wound himself. This provided more fuel to the fire of suspicion regarding the Defendant’s past…which is now being used in his present circumstances as well.

But, that is, of course, not all.

The Commonwealth has also announced its belief that the Defendant is a “gang member’ as he is said to be an admitted member of “Folk Nation”. According to the FBI, Folk Nation is a national conglomerate made up of smaller street gangs that share information and offer protection to each other.

In any event, the Defendant pleaded guilty on May 28th to not only the charges of the ABDW of April 7th, but also another pending case in which he was also found with a knife. It was a matter in which he is said to have disturbed a school assembly and then resisted arrest. In return for his plea of guilty in both cases, he was given a suspended sentence. In other words, he would be on probation and, failing that, he would have to serve the previously suspended sentence.

Of course, innuendo about juvenile crimes, membership to national gangs and previously suffered knife wounds aside, that probationary term is more than likely now about to have an abrupt ending. In light of the recent murder case, the Department of Probation is seeking to show that the Defendant has violated probation and so should be incarcerated. The Defendant’s probation surrender hearing is currently scheduled for July 28th. Should the court find that the Defendant had indeed violated probation (which would be rather hard to do given that the very arrest in the homicide case is such a violation) the sentence of 1 ½ years in jail would be imposed.

Of course, in the meantime, the Defendant is likely to be held without bail pending the murder case anyway, so I would predict a rather swift resolution to the probation surrender.

Attorney Sam’s Take:

Rest assured, the Defendant is in enough trouble given the present charges alone.

The arrest for murder, whether or not he is eventually convicted, is considered a violation of probation according to the laws of the Commonwealth. Further, simply being charged with pre-meditated murder could not be more definitional of being “in trouble”.

However, exacerbating that situation are the surrounding facts and innuendo of the Defendant’s past. Had this murder charge occurred later in time, he would likely be facing the same problem…except, perhaps, for the probation surrender. Simply put, the past is never forgotten nor forgiven by the Criminal Justice System.

I am often faced with clients’ misunderstanding of this reality. While investigating the size of the odds piled against them, I ask about any prior criminal cases.

I am usually told that there are none.

“Ok, so you have never been arrested?”, I ask as a follow-up.

“Oh, sure I have. But those cases have been taken care of.”

“What do you mean?”

“I pleaded guilty and served the sentence already.”

Many people seem to think that if prior cases have been resolved, they no longer exist to pop up again in the future. This belief is incorrect.

“But, Sam”, you ask, “Surely that is the case with a juvenile record, isn’t it?”

Nope. The Commonwealth still has access to those records as well. Therefore, the mistakes you made as a youth, in terms of criminal justice, are still alive and kicking in terms of being used against you in the future.

Notice that there do not seem to be allegations in this case that the Defendant committed the murder because of a gang affiliation, in connection with protecting his friend in the past, as part of disrupting a school assembly or even because of his being stabbed in the past. Therefore, there can be no other relevance of his past to this case other than the argument of “Where there is smoke, there is fire“.

This “Fire” element of criminal justice is but one reason that any involvement with law enforcement cannot be treated by the accused as anything other than deadly serious. Any prior perceived criminal activity can come back to haunt in many areas, not the least of which, are future suspicion and criminal charges.

Now, there are safeguards in the system to presumably protect against the unduly prejudicial use of these prior cases. For example, at trial, said prior cases are not admissible to show a propensity to commit crimes. In other words, the Commonwealth may not seek to introduce a prior record to support the argument, “Well, folks, he did it before, he probably did it again”. That would not be consistent with our laws regarding the presumption of innocence.

Of course, as I have long argued, that presumption exists more during a criminal trial than before it. Until then, there tends to be more of an assumption of guilt…and the touting of a prior criminal record, or past knife wounds or who one associates with is considered fair game.

Unfortunately, though, trial juries tend to be made up of those same people who, while in the general public, are treated to publicity of a person’s prior record, whether it contains fact or innuendo. These are the same people who are asked to be fair, open-minded and to forget anything they learned in terms of pre-trial publicity while sitting in Judgment.

Tell me, what does your mind picture when I tell you to absolutely not think of pink elephants?

NOTE TO READERS: Regretfully, due primarily to a rather intense court schedule, I was unable to post this otherwise daily criminal law blog. As such, the second part of “A Boston Criminal Defense Lawyer Discusses Student Arrests And The Resulting Effects On A Student’s Future” will be posted in our weekly “Attorney Sam’s Take” Discussion this coming Thursday.

For the full articles concerning today’s posting of the Boston Criminal Defense Lawyer Blog, go to http://www.metrowestdailynews.com/news/x413663331/Framingham-stabbing-suspect-has-extensive-rap-sheet and http://www.bostonherald.com/news/regional/view/2009_06_21_Suspect_in_Framingham_stabbing_has_long_police_record/srvc=home&position=recent

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