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.

Massachusetts Police Officer Is On Trial For Assault and Battery With A Deadly Weapon

Sometimes the memories of Thanksgivings past are ones you might prefer to forget. Take a particular North Adams police officer who was testifying at a criminal trial-his own, side by side with his criminal defense attorney.

The events at issue took place last Thanksgiving.

Officer Joshua M. (hereinafter, the “Defendant”) is on trial for two counts of assault and battery with a deadly weapon, one count of assault and battery, one count of witness intimidation, and one count of filing a false police report about the incident, which involved treatment of a Pittsfield prisoner. The defense is that because said prisoner was covered with his own excrement from the middle of his back down to the back of his knees, the Defendant felt he had fewer options in trying to restrain the drunk and combative man.

The Defendant testified that he didn’t pat down the Matthew T. (hereinafter, the “Prisoner”) at the North Church Street scene where the Prisoner had caused a disturbance by kicking doors and defecating on a welcome mat. He further explained that his training indicated that he should avoid touching bodily fluids to prevent exposure to potentially infectious diseases.

This became even more difficult. During the drive to police headquarters as well as in the booking area. the Prisoner became combative, consistently resisting efforts to check in his personal property, get his fingerprints and take his booking picture, the former officer said.

“And there were less hands-on options to use at that point because of possible bio-hazardous filth all over his back,” the Defendant testified.

As a video of part of the events was played in court, the Prisoner could be heard repeatedly criticizing, “That’s not cool, that’s not cool,” in response to the efforts to restrain him, and at one point screaming repeatedly.

During cross examination, the prosecutor tried to establish that the Defendant had already formed an opinion of the Prisoner from previous contact and rumors circulated in the law enforcement community. He also tried to show that the Defendant was reacting to animosity exhibited by the Prisoner.

In a contentious exchange, the prosecutor asked the Defendant about alleged omissions from his incident report.

“There is nothing in that report about striking him in the head three times, is there sir,”

“No sir,” the Defendant replied.

“Nothing in the report about you calling him a stupid piece of [expletive], is there sir?”

“No sir.”

“Is there anything in the report about you pulling his hair to take his picture, is there sir?”

“No sir.”

“As an officer for eight years, you know that you will encounter people at their worst and you have to be at your best. Is it your testimony that you were at your best that night,”

“Yes sir,”

The Defendant has waived his right to a jury trial, opting instead to allow Berkshire Superior Court Judge John Agostini to make the final judgment in the case. Final arguments are scheduled for Monday afternoon.

Attorney Sam’s Take:

Well, this must be a switch for both the prosecutor and defendant. Similar questions are often asked of officers by defense attorneys to show police abuse amidst objections and attempts to rehabilitate by prosecutors.

In this case, the Defendant seems to think that the matter against him is so absurd that he has waived his right to have a jury hear it. Or, then again, perhaps he is afraid of a jury hearing the evidence because of their potential life experiences. Perhaps the strategy is that a judge who is used to seeing the police as the good guys and the defendants inherently bad might be a better bet.

Kind of the reverse of most criminal defense strategy.

Obviously, police officers are allowed a certain amount of leeway as to how they handle prisoners. After all, they need to be. Most people are unhappy about being arrested and not at their best. They tend to make the situation worse by fighting, arguing with or trying to flee from the arresting officers. We have discussed this many times over the past year.

On the other hand, that leeway is not without limits. Further, appearing to falsify reports is definitely frowned upon.

“Come on, Sam, you have often complained about inaccurate police reports”.

This is true. Perhaps a truer cross-examination transcript would read:

“So, you admit that your police report is not complete?”

“Of course I do.”

“Why ‘of course’?”

“Come on, Mr. Prosecutor. The reports are never complete. Heck, they are usually not even accurate. you know that. Don’t you remember last week, when we had that drug case, when we were discussing…”

“No further questions.”

The fact is, though, there seems a limit in how much of this is tolerated. In other words, when it is the officer who is the defendant, it becomes a problem for the prosecution. In this case, it is seen as intentional and criminal.

This type of criminal case may not be typical, but it does happen. In fact, when I was a prosecutor, we had an entire section of the District Attorney’s Office dedicated to investigations and prosecutions of police officers.

When law enforcement officials are the defendants, the rules of evidence remain the same. In other words, assault allegations are assault allegations. When facing this type of case, you need an experienced criminal defense attorney no matter who or what you are.

If you wish to consult me, please feel free to do so. Simply email me through our site or call me at (617) 206-1942.

For the full article upon which today’s blog is based, go to
http://www.berkshireeagle.com/ci_13862314

NOTE TO READERS: Because of the Thanksgiving holiday, there will be no blog posted Thursday or Friday. Pleae enjoy a safe, good and law-abiding holiday and weekend. And speaking of Thanksgiving….I sincerely thank YOU for reading.

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