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.

Criminal Defense- When A Client Is Charged With Disorderly Conduct

As we close the lid on this three-part Attorney Sam’s Take posting on Disorderly Conduct, we look at where I come in. Along with other criminal defense attorneys, I stand ready to represent a client facing such charges. When is the best time to contact me? Immediately. In fact, particularly if the police approach is merely signalling an upcoming or ongoing investigation, before you even engage in a discussion with the officer. Unfortunately, in most cases, I am summoned after the confrontation has taken place, sometimes leaving the addition of a Disorderly Conduct charge to whatever issues existed before the confrontation.

First of all, understand that, while it is the police officer who locks one up, or seeks a complaint against you, it is the prosecuting attorney, the assistant district attorney, who carries your prosecution from there. Prosecutors vary in terms of experience, of course, but most are well-trained and have the resources of the Commonwealth behind them for advice, investigation and tactics. Back in that “perfect world” I mentioned yesterday, the prosecutor always follows his or her oath…to “do justice”.

As I also mentioned, this is not that perfect world.

Like the police officer, the prosecutor did not wake up in the morning and engage in a search to find innocent people to keep in jail. Most prosecutors earnestly do their job. However, they have their own biases and these biases usually include a belief that the arresting officer’s word is gold and, if you were arrested, you are guilty. Tempered with those beliefs, of course, is the fear that I have mentioned many times that, if simply released with no attention, you may go out and kill somebody”, thereby landing them and their boss, who sits in a political position, in the papers the next day and, potentially without a job.

An experienced defense attorney, particularly one who has also has spent time as a prosecutor, can help in the approach to the prosecutor as well as the officer. You want an attorney who understands the concerns of the prosecution and knows how to best address them in your favor.

Make no mistake. The public withdrawal of the criminal charges in Professor Gates’ case is unusual. His type of arrest, if not the exact fact pattern, happens all the time. These cases do not usually end with a statement by law enforcement that “Hey, neither of us were at our best…let’s just forget the whole misunderstanding happened.” In most cases, if there is a dismissal, it is usually with conditions or part of a continuance that may end in eventual dismissal but includes some sort of acknowledgement of guilt as in the Continuance Without A Finding we have spoken about in the past. Of course, many of these cases include the charge of Resisting Arrest, which makes it even more difficult to get dismissed.

Once you are charged and arraigned, the case goes on your criminal record…regardless of the result. It will plague you thereafter unless and until you can get your record sealed.

An experienced defense attorney may actually be able to turn back the clock. In many cases, you have a right to have a Clerk Magistrate’s hearing prior to t issuance of a criminal complaint. If that had not been done, your attorney might be able to get the complaint dismissed “prior to arraignment”, thereby removing it from your record, and sent back for a clerk’s hearing. There, you may be able to end the case before a new complaint issues thereby keeping your criminal record clean..

The bottom line is that when a police officer approaches you in the “field”, it is a mistake to attempt to outwit, outrun, outfight or out-argue them. You will not win. The harder you push it, your only reward will be more charges. The police officer will remain dedicated to “controlling the scene” and, despite any responsibility we attribute to them to be understanding or able to admit a mistake, such an expectation wil be in vain..

The best bet is to quietly and politely comply. It is your best chance to avoid an arrest. It is your only chance not to make matters worse for yourself. Wait until you can contact an experienced criminal defense attorney to advise and represent you. That attorney can advise as to the bringing of a grievance against the officer, but, more importantly, how to go about attempting to save your record and keep you out of jail.

As you can see by my profile, I have been a participant in the criminal justice system for 25 years. That experience includes that of a prosecutor in cases ranging from disorderly conduct and drunk driving to rape and murder. If you have a criminal matter, please feel free to contact me at (617) 206-1942 to see how I can help.

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