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: You Have To Go To Massachusetts Court Tomorrow For That Assault Case (Part Two)

So, yesterday, you weighed your options and you decided to follow the advice of the Boston Police Department rather than ol’ Attorney Sam in dealing with the Clerk Magistrate’s Hearing. You just ambled in on your own, gave it your best shot, and walked out with a date to return to court for an arraignment.

Now what?

Well, by some unrealistic trick of time, your arraignment was set for tomorrow.

Wonderful. Nothing like a little pressure for the holidays, right?

Let’s also assume that you learned your lesson and that, on the way out of court yesterday, new summons in hand, you did not ask Officer Gotcha if you need to hire a lawyer by tomorrow and, if so, you did not follow his advice when he looked at you as if you had three heads and sneered, “Nah. They’ll give ya a free one. Don’t worry about it. Hey, by the way….never too late to make a statement you know.,,.!”

So…what happens at an arraignment? What if the judge believes your lying neighbor? Are you likely to be coming home afterwards? And…do they really give out free lawyers there?

The arraignment has been scheduled because, one way or another, probable cause was found and so a complaint against you for the assault and battery has issued. As mentioned yesterday, the matter will now be entered on your record and it will be a bit difficult, but maybe not impossible, to get it off at some point.

But that issue comes later. For now, you have a full-fledged criminal case to defend.

Court does not really start until 9:00am. However, on arraignment day, you need to get to court at 8:30am so that you can check in with the Department of Probation. There, a probation officer will interview. The interview is for two reasons. First of all, they want to run your record to see what heinous deeds you have done in the past and if there are any warrants out for your arrest. Second, if you are seeking a court-appointed lawyer, to see if you are indigent enough to get one.

“So they really do give out free lawyers at these things? Cool!”

Don’t get too excited. Because there is the possibility that you could be facing jail time in the case, you have the right to a defense attorney. If you are considered indigent enough to qualify, one will be appointed to you. These are seldom ever “free of cost”. Usually, there is a court-set fee imposed which you will either pay at some point, do community service, or go to jail on that alone. It is a lower fee than if you had retained your own attorney.

You will not be choosing your attorney, but there will have been one assigned to court that day to “pick up” such cases. As is the case in every profession, there are some very good attorneys who you might get and some not so fantastic ones. If you get the court appointed attorney, that attorney will be paid by the state (you only paid the clerk).

“Wait! Isn’t that a conflict of interest? Does that mean that the defense attorney is actually working with the DA and against me?”

No. it comes from different funding and there is a clear demarcation. Your attorney is for your defense and there is no reason to believe he/she is “in cahoots” with the Commonwealth.

When probation interviews you, they will ask background questions if you actually either have or are retaining your own private attorney. Otherwise, they will ask you financial questions to see if you qualify for court appointed counsel.

Finally, you and everybody else will go to what is generally Courtroom One and wait for your name to be called.

Usually, particularly in cases in which you are responding to a misdemeanor charge, have no prior record and are responding to a summons, your actual arraignment will go rather quickly. Your name will be called, the court will announce what you are charged with, a “not guilty plea” will be entered in your behalf and you will receive the next court date in which you need to appear. If you have your own attorney, you will not need to be assigned one. If you do not, you will be assigned one if you qualified.

“So, they don’t bother with bail anymore? Fantastic!”

Not so fast. They certainly still deal with the issue of bail.

As we gave discussed many times, the issue of bail usually deals with whether you are likely to come back to court. An exception to this is when the Commonwealth has decided that you are a threat to humanity and so must be put away immediately without benefit of bail for the time being while awaiting trial.

This is where your CORI comes in, as well as the facts of the case. If the allegations are pretty commonplace, and probation found that you no prior record, you are probably going home today without much issue, especially since you showed up on your own for both summonses. If, however, you have a bad record, or default warrants in your past, it is not so simple.

Let’s say it is your 14th arrest and, in each case, you have a history of not showing up at least three times? The facts do not matter all that much and bail is likely to be set because you have a tendency to not take court dates too seriously. Conversely, let’s assume that this is your first arrest. Wonderful! But your lousy neighbor ended up passing away because of that belt you gave him…the charge is now murder. Guess who is not going home so easily tonight?

No, the question of whether you had private or court appointed counsel does not really effect this issue…except in how good your lawyer is in arguing for your freedom. Again, the only way you get to choose your lawyer is to hire him/her yourself.

Now, taking the scenario where your neighbor died, that would have had to happen quite close in time to the arraignment. If he had died sooner, this matter would have not been handled by summonses. You would have been arrested by the investigating detectives. In that case, the matter would not be staying in district court, but be moved to superior court for yet another arraignment.

“another arraignment? What are you talking about?”

And that is where we will leave things until tomorrow. You see, once a matter is indicted, then it all starts over again and the stakes are even higher.

One seldom knows how far a case may go. This is yet another reason to get your own attorney involved as soon as possible when there is even a light scent of prosecution in the air.
If you are facing such a scenario and wish to discuss it with me, please feel free to contact me at 617-492-3000. In the meantime, we will complete this mini-series following what happens should the matter move up to superior court and the land of felonies.

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