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.

Appeal Of An Infamous Rape Conviction In Boston’s Supreme Judicial Court

Paul Shanley, 78, (hereinafter, the “Defendant”) is a defrocked priest who was sentenced in 2005 to 12 to 15 years for raping a 6-year-old boy in a Boston suburb parish in the 1980s. Now, his attorneys are challenging the conviction.

Most of the testimony by the complainant against the Defendant was said to be based on previously repressed memories. The Defendant is now challenging the notion of repressed-recovered memories, or dissociative amnesia.

During the Defendant’s trial, the then 27-year-old, victim testified that he did not remember the abuse until 2002 when news reports of other men accusing the Defendant of sexual assault. He claimed that it was these accusations that triggered his own memories. The memories included the Defendant pulling him out of Sunday school over a six-year period to rape and grope him in the bathroom, the confessional and the pews.

Now, the Defendant’s lawyers assert that jurors never should have heard the victim’s tearful account because the psychiatric community itself cannot agree on whether repressed memories truly exist.

The judge in the Defendant’s trial accepted the theory of repressed-recovered memories, as did a superior court that heard his first appeal in November. Now, however, the case is being fought out before the Massachusetts Supreme Judicial Court

Attorney Sam’s Take:

Criminal appeals are easily misunderstood by the general public. In a way, I suppose, that makes sense because the issues involved in a criminal appeal are pretty legalese-based. They involve issues of law, not of fact.

The law assumes, for the most part, that the fact-finder, be it jury or judge, knew what they were doing with the evidence before them. This assumption is based upon the fact that the jury/judge was there for the live testimony and so was in the best position to assess the credibility of the evidence presented. The appeals court simply has a transcript of the proceedings.

The primary issues for appeal have more to do with the evidence itself. In other words, should the jury have been able to consider a certain piece of evidence; should the judge have prevented the defense from bringing in evidence they tried to present?

These are questions of law and they focus on the judge, who controls what evidence is and is not presented.

I find that many clients who come to me after losing a trial feel that the evidence against them was so weak, that the simply could not have lost unless the jury was either paid off or without any common sense. They want a new trial and assume that if you just show the court that the verdict was wrong, then they get one.

It is not so simple.

There is a way to challenge the verdict by asserting the weakness of evidence, but it is a pretty uphill battle. It must be a legal issue. Therefore, the argument is that, as a matter of law, the jury could simply have not found the defendant guilty by the evidence was before it. This is, basically second-guessing the jury, and so appeals courts are very reluctant to do it.

“But, Sam, what if the trial attorney was so incompetent that he blew the trial which should have been won?”

Again, it has to be a legal issue. The legal issue in that case is that the attorney was incompetent and so the defendant did not receive a fair trial. However, it, too, is a heavy burden to prove because the appeals court is not going to find an attorney incompetent for simply employing a strategy that did not work.

In the Defendant’s case, the main legal issue for the appeal is whether the jury should have been allowed to hear the alleged repressed memories. Generally, if an appeal is allowed, it means that the matter simply returns to the lower court for another trial.

Should the Supreme Judicial Court find that the jury in the Defendant’s matter should not have heard that evidence, the matter is likely to be dismissed as there may not be enough other evidence left by which the Commonwealth can meet its burden of proof.

Appealing a conviction is a complicated thing and, naturally, one would prefer to be in a position to prevent the conviction in the first place. Therefore, it is vital to find an attorney who is experienced in trial work when dealing with the trial. Obviously, it is just as important to have an attorney experienced in appeals when seeking to appeal such a finding.

Should you find yourself or someone you care about to be in the position of facing trial, or looking to appeal the unfortunate results of such a trial, and you wish to discuss the matter with me, please feel free to call me at (617) 206-1942.

For the full article upon which today’s blog is based, go to http://www.abcnews.go.com/Health/MindMoodNews/priest-challenges-repressed-memory-assault-victim/story?id=8552686

Note To Readers: Last Friday, there was no blog posted due to my court schedule, and so there was also no posting of the weekly “Attorney Sam’s Take”. We apologize and hope you had a great, safe and law-abiding weekend anyway!

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