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: Wrongfully Convicted In Massachusetts? Reality Check In Murder And Assault Cases

The website Boston.Com has a story that is probably meant to give us a feeling of justice. It concerns one Kenneth Waters. Mr. Waters spent more than 18 years in prison after being convicted of murder. There, he passed through all of the “safeguards” that we have put in place, namely appeals, as the world around him passed him by. Finally, he got DNA that was at the scene tested. Between that and other newly discovered evidence, he was exonerated. The town of Ayer, who had brought the charges and investigated the crime in the first place had now agreed to pay $3.4 million to settle the civil rights lawsuit on Mr. Water’s behalf, Attorney Barry Scheck of the Innocence Project announced yesterday.

Of course, it is not likely to do Mr. Waters too much good; he is dead.

The lawsuit was filed by Mr. Water’s estate. The investigation which finally led to the truth in the murder for which Mr. Waters was convicted was not conducted by the town, state or even federal authorities.

It was led by his sister who, after he brother, in whom she believed, was wrongfully convicted, went to law school, and became a lawyer and started the “good fight” of freeing her brother.

People do not like to believe that innocent people are sometimes found guilty. In fact, many people find it nearly impossible to accept that a person would actually plead guilty if they are not, in fact, guilty.

Let me pose a question to you. You are walking the streets of Boston when you suddenly find a bunch of police officers surrounding you, guns drawn. A learned reader of this daily blog, you know that you are going to “go quietly”, even though you cannot imagine what they are arresting you for.

They are arresting you for assault and battery with a dangerous weapon, a felony.

You see, someone who must have looked like you just took a hammer and beat the daylights out of an elderly man walking in the area three blocks away. The victim, shaken and wounded did not know his assailant, but thinks he could identify him.

So, the police cuff you and lean you against the police cruiser, surrounded by police officers with guns pointed in your general vicinity (after all, you are a very dangerous person). Other officers pick up the wounded and shaken victim and drive him by your location. They gesture to the scene of you, cuffed and against the police car, surrounded by officers with their guns drawn and ask him if you are the guy who had assaulted him.

He looks out the window at the scene that might as well have a neon sign over your head reading “This Is The Guy”, notices that some of your features look like the stranger who had assaulted him (which we knew, because it is why you were stopped in the first place) and answers in the affirmative.

You are brought to court. Let’s assume that you are not held without bail as a threat to humanity. Let’s further assume that bail is not posted so high that you cannot make it. In other words, let’s assume that you are not held in custody while awaiting trial. It is, by the way, somewhat of a big assumption because the media are likely to follow the story given the vicious attack on the elderly gentleman and so the criminal justice mantra of “What if I let him go and he goes out and kills someone” is likely to be recited numerous times in the courtroom.

So, you are out of custody. However, most people around you figure you must have done it, because why else would the victim pick you out? You hire a lawyer and pay him thousands of dollars to represent you. You miss work each month to show up in court. From the beginning, the prosecutor has expressed that the only resolution that is acceptable is that you be incarcerated for a time. Because you do not have a bad record, they might be willing to settle for 1 ½ years in the house of correction. If you go to trial and lose, they will ask for 5 years in state prison.

You prepare for trial.

On the eve of trial, your lawyer is finally able to convince the Commonwealth to offer you 2 years of probation with anger management therapy.

What would you do? So far, you have seen that the system views you as a threat even though you know you have not done anything wrong. If you roll the dice, you could be sentenced to years in prison. Before now, they were only offering jail time. Suddenly, you have one and only one chance to absolutely walk out of court today and actually go home.

Believe it or not, many people take the guaranteed walk home.

I have seen it, as have any attorneys who have an experience in the criminal justice system. In other words, innocent people do plead guilty.

Years later, is there a way to fight the conviction, regain your nerve and try to take back that guilty plea? It is an uphill battle, but if you can make the requisite showing that you did not know what you were doing, or you were coerced, perhaps you can withdraw it. Other than that, you are pretty much out of luck.

How about if you went the other way? You went to trial. Let’s even assume that there were no little “additions” to the memory of the officers involved. There was simply the testimony of your arrest and that wonderfully reliable identification made by the victim. The hammer, by the way, was never found and so could not be tested.

The sympathetic elderly witness comes in, looking only for justice. He is asked to look around the courtroom and see if he can, by chance, identify the person who attacked him. He looks right to the seat in which he has seen The Defendant sit in all those courtroom movies and television programs. There sits you, who he actually does recognize, because you are the one he picked out at the time of your arrest…as he was wounded and shaken. He tells the jury it was you.

You are convicted. See you in around 5 years.

You appeal your conviction. However, although you know you are guilty, you learn that the appeal does not really concern itself with that…only with mistakes in law that the judge made during the trial. Lucky for you, your judge is a legal scholar.

No successful appeal for you.

You finally get out of custody in 5 years. Now, you are ready to attack that conviction.

How? What are you doing to do?

Well, unless you are able to find some compelling new evidence that exonerates you, you are not likely to. In my example, there is no question of DNA or fingerprints to test again.

This scenario happens and, except in the most unlikely of cases, there is nothing you can do.

Let’s turn it around. Let’s say you were found “not guilty” but, because of the nature of the charges, you were held on high bail until the trial. You spent close to a year behind bars only to be told you are not guilty. Surely there is something you can do there, right?

Well, unless you can make a very convincing showing that the police acted in bad faith or that the victim was actually lying, the answer is basically “no”.

This is the scary reality. So, when groups like the Innocence Project become involved to push that new evidence, such as DNA, be tested (which the Commonwealth usually fights, by the way), they are to be applauded.

Of course, for Mr. Waters, who died within months of being released from prison, it is a bit of a hollow victory.

Wouldn’t it be better to simply put some real thought behind putting some real safeguards up in the system to avoid the travesty from happening in the first place?

In the meantime, is it any wonder that I keep urging you to get experienced counsel immediately should you be under investigation or arrested for a crime? The playing ground is not level. Further, once you lose, in most cases, you lose. Period.

Now, have a good, healthy and law-abiding weekend!

For the full article concerning today’s posting of the Boston Criminal Defense Lawyer Blog, go to http://www.boston.com/news/local/massachusetts/articles/2009/07/15/ayer_settles_wrongful_imprisonment_lawsuit_for_34m/

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