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.

On Massachusetts Probation, Child Rape Suspect Is Arrested For Second Sexual Assault While Out On Bail

Okay, here is the unfortunate truth of the matter – safeguarding Constitutional rights does not always bring happy results. Sometimes the cost is tragic. Most of the professionals involved in the criminal justice understand that. Massachusetts Kingston Police Chief Joseph Rebello is not one of those professionals apparently. I am guessing he is not a big fan of criminal defense attorneys either.

Nor is he likely to enjoy today’s blog.

The man at the heart of the story is Joseph G., a 26 year-old construction worker, of Kingston (hereinafter, the “Defendant”). He was arraigned last week on charges that he sexually assaulted a girlfriend’s 3-year-old daughter in Kingston. It was his second such charge. In fact, he had been charged this summer with raping another child.

The most recent matter came into being while the Defendant was free on bail.

In the first case, the Defendant stands accused of breaking into the house of a distant relative and raping a 6-year-old girl. He was freed on $10,000 bail. That girl’s mother attended the recent arraignment. “I don’t understand why he is still out,” she said, referring to the bail granted after the first arrest. “I think the courts should make sure he goes away and is not allowed to be around kids.”

Perfectly understandable, of course. After all, this is a victim’s mother and not a professional participant in the criminal justice system.

Chief Rebello, of course, does not have this excuse. One would imagine that he has had a great deal of experience in these matters and was taught something about things such as the purposes and rights to reasonable bail. For some reason, though, he found it necessary to come out “swinging” with a statement to the press that would belie that assumption.

“I always wonder why we let people out who are charged with such crimes,” Police Chief Rebello said angrily to reporters outside the courtroom. “Obviously, someone who has this type of background is no one that can be rehabilitated, and letting him loose in society only means we are going to have further victims.”

Wonder no more, Chief. Today we answer that question for you.

Putting aside for the moment the Chief’s assumed medical/psychological expertise, we must charitably assume that he was speaking rhetorically. After all, the man does understand why “we” let people out when charged with “such crimes”, doesn’t he? If not, perhaps he should read this blog more often since we cover the issue so often.

The Defendant has pleaded “not guilty”. Some of us old-fashioned types tend to accept that as a challenge to the prosecution that they will have to prove the man guilty beyond a reasonable doubt before it is so “obvious” that he is guilty and cannot be rehabilitated. In fact, his lawyer has already announced that she has “some evidence of a highly exculpatory nature” that she hopes to present soon.

In the meantime, the court has ordered the Defendant held without bail pending a dangerousness hearing. She also revoked the cash bail his family had posted for the earlier charges and said that officials are taking steps against him for violating the terms of probation from a drunken driving conviction.

TheDangerousness Hearing is still pending as witness issues, which we will revisit later this week, are addressed.

Attorney Sam’s Take

“Ok, Sam, we get it. The Defendant is charged with serious crimes, so he should be let out of jail. It doesn’t matter that he did it twice. Right?”

Well, no. It does matter that he is charged with serious crimes and it certainly matters that he is accused of doing committi ng them twice.

Normally, the issues for bail are based upon one question…is the Defendant likely to return to court? If there is reason to believe he will not, then the bail gets higher. In this case, the Defendant is facing at least two felony charges, each one carrying with it a possible life sentence.

However, under Massachusetts law, the Defendant may also be held without bail if he is found to be a threat to the community. This, obviously, is the Commonwealth’s argument.

This is not to say that the Defendant cannot be held on very high bail even without the dangerousness argument. The fact he is facing two extremely serious crimes doubles his incentive to flee. Therefore, the court could find that bail should be raised dramatically in both cases.

The court also has another “easy out” for the next 60 days. A defendant who is arrested while out on bail may be held for that long just for committing the offense of being arrested.

“But Sam, you always say it is easy to get arrested in Massachusetts…all you have to do is anger the wrong person. Is that Constitutional?”

Not in my opinion, but Massachusetts law differs from my opinion in this area.

In any event, the short answer to the good police chief is that we tend to think that the mere arrest for a serious crime does not automatically provide proof beyond a reasonable doubt of guilt. This is why such defendants are not held without bail automatically.

Does this mean that defendants, while out on bail, may commit another crime? Sometimes.

Of course, that has not been proven in this case yet, has it? Neither matter has seen the front of a jury panel.

If you find yourself, or a loved one, charged with a serious crime, you will appreciate and, indeed, depend, on things like the presumption of innocence. You will also want a criminal defense attorney who believes in such things and will fight for them.

Might I suggest you get one of them.

Should you desire to discuss such a case with me, please feel free to call me at (617) 206-1942.

For the original story upon which this blog was based, please go to http://www.boston.com/news/local/massachusetts/articles/2009/12/15/kingston_man_out_on_bail_accused_of_2d_child_rape/ and http://www.patriotledger.com/homepage/x1599181297/Dangerousness-hearing-postponed-for-alleged-child-rapist

Contact Information