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.

Attorney Sam’s Take: Arrested In Boston For Disorderly Conduct (Part Two)

As a Boston-area criminal defense attorney who has worked on both sides of the aisle, I have been doing a lot of talking lately about Disorderly Conduct arrests in the Commonwealth. I have been interviewed by media outlets out of state, such as the L.A. Times as well as national outlets such as Time Magazine. In the meantime, the arrest of Professor Gates has been assigned by most to the pile of questionable racial incidents.

To me, however, to write it off as simply a “racial incident” misses the point which is faced by people every day in the criminal justice system. The primary difference between Professor Gates and most other cases is that he is a man of stature who can command national attention. Most people do not. As a result, when they become offensive to a police officer, there is no media pressure causing prosecutors to drop charges or a thick blue line of officers holding press conferences to demand apologizes from local and national public figures.

This is why this blog regularly warns you to avoid confrontations with the police and, if you are being approached, do not to try to engage in a battle of “one upmanship” with the officer, be it physical, strategic or verbal. The bottom line is that you will lose such a match, at least for the day. The officer carries the cuffs…you only get to wear them. The officer has the badge and the gun. Those items will outweigh your brilliant arguments and speedy escape attempts every time.

“But Sam”, you ask me, “What are we supposed to do? Just stand there and take it?”

The answer is “yes”…unless and until there is a realistic movement to address the real problem.

But understand something. The police officer most likely did not wake up that morning eager to harass innocent citizens during the upcoming shift. Most officers are doing their best doing a dangerous job. In most cases, it is a necessary survival tactic for the officer to make sure that control of a potential crime scene is not lost. True, one would hope that officers would keep the concept of “nuance” in mind.

And sometimes, they actually do.

When is that most likely to happen?

When the person they have approached does not engage in a way that suggests a threat that the officer could lose control of the situation.

You see, when an officer approaches an individual, there are two different perspectives at work. By acknowledging the officer’s perspective, you actually help yourself.

“Come on, Sam, what difference could that possibly make?”

Well, in cases such as Professor Gates’, it can mean the difference between being arrested or not. There was clearly no reason for there to be an arrest other than the over-reaction, to say the least, of charging Disorderly Conduct. The fact that no burglary was taking place had become rather obvious pretty quickly. Had the professor been a regular reader of this blog and took its message to heart, the officer’s visit would likely have been quite short and much less eventful. The accusation of racism could have been made following the regular procedure by registering a grievance the next day.

The chances were, after all, quite slim that the officer was simply going to shrug his shoulders and say, “Geez…you know what? You’re right. This whole thing was racism. I am ashamed. The neighbor should be ashamed. I…I guess I’ve got some soul searching to do…!””

I have handled many cases wherein a suspect’s ability to defuse a stop has made a difference between the possible results.

“Well, Sam, if there was no arrest, then how did the ‘suspect’ show up at your door?”

Because sometimes, there is police action anyway. Take a traffic stop, for example. A person is pulled over and it turns out that he or she does not have a valid license. The way the driver handles the situation can make many differences. For example, sometimes, an officer will not even press charges, but give the driver a “break”. Sometimes, even if the officer brings a charge, he only sets it up for a Clerk Magistrate’s Hearing instead of an actual arraignment, thereby setting the stage for a criminal complaint to never being issued.

In both these scenarios, there is no actual arrest. The decision is in the officer’s rather wide descretion.

Domestic Violence cases are now treated differently because, according to police procedure, someone now must be locked up after an officer arrives at the scene. However, how quickly that person can be released, ie bail conditions, is often determined by how “disorderly” they were at the scene. A glaring example, of course, is whether the defendant was charged with other things, such as “Resisting Arrest”, “Assault and Battery on a Police Officer” and, naturally, “:Disorderly Conduct”.

“But, look, Sam , we trust these people with the badge and the gun. They are given the training. They are the ones who know they are about to approach us. Shouldn’t they be the ones to diffuse the situation or understand our fear and not engage in the one-upmanship since they are the professionals?”

The answer is “Yes, of course they should.” And they probably would…in a perfect world.

25 years in the criminal justice trenches has taught me that this is not that perfect world.

Because of unfolding events as well as the importance that people understand the mechanisms behind these types of cases, this Attorney Sam’s Take series on Disorderly Conduct will continue to a third posting. Tomorrow, we will look at where the prosecutors and defense attorneys stand in all this.

NOTE TO READER: Despite plans to the contrary, there was no daily blog posting of the Boston Criminal Lawyer Blog. What would have appeared there on Friday, appears before you here, today.

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