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.

Boston AG Is Accused Of Mishandling Grand Jury Investigation And Bail Issues In Rape Case

The game of politics is afoot again in the Boston area! This means that, as the race for the late Senator Kennedy’s seat comes to the wire, it is time for whatever mud can be thrown upon one’s opponent . Often, the accusations involve the criminal justice system. That’s where I come in. Today we look at accusations involving a 2005 rape case and Attorney General Martha Coakley.

In October, 2005, 31 year-old Somerville Police Officer Keith W. (hereinafter, the “Defendant”) was said to have raped his 23-month-old niece with a hot object, most likely a curling iron. The case was presented to a Middlesex grand jury which was overseen by Coakley. That grand jury did not take action against the Defendant. Thereafter, the child’s mother filed applications for criminal complaints in the case and it was then that the grand jury indicted the Defendant.

When the Defendant was before the court, the prosecution recommended that the Defendant not be held on bail, but released on personal recognizance. He remained free until December 2007, when he was found guilty.

Now, political opponents, both old and new, are taking the pulpit to decry Coakley’s handling of the case and making the typical cry of “too soft on crime”.

In a recent interview, Coakley said her office acted appropriately at every turn, adding that her office fielded 900 complaints of sexual and physical child abuse each year. She asserted that it was not unusual for prosecutors to require more than one grand jury before obtaining indictments, especially in cases such as the Defendant’s, in which there is only circumstantial evidence and the victim is deemed too young to testify.

Coakley pointed out that the Defendant had no prior convictions, had deep roots in his community, and had appeared voluntarily at his arraignment after a 10-month investigation, leaving her office with scant reason to ask for cash bail and little reason to believe that a judge would order it.

Nonetheless, the arguments against Coakley in the matter range from the fact that the Defendant had gotten into trouble at his job to the claim that, days before the trial, the Defendant, was treated for a substance abuse problem and had threatened to kill himself by holding a gun to his head, “evincing great emotional stress and the strong possibility that [he] would harm himself or others.”

“Why was he able to be two years out of jail? Why is that?” said one family member. “We ask that question all the time.”

A reasonable question posed by people who have suffered and absolutely deserve a proper answer. Let’s give it to them.

Attorney Sam’s Take:

This is not a political blog which is endorsing anyone in this, or any other, race. It is a blog about the realities of the criminal justice system. I try to deal with misconceptions about the system and make it as clear as possible. Often, politicians have other goals regarding such clarity.

As we have often discussed, the purpose for bail is to ensure that the defendant will return to court for trial. In more recent years, we have also invented what we call a “Dangerousness Hearing” to determine if the Defendant is a threat to the community.

As these two issues are considered by prosecutors and the court, there is one underlying presumption that is supposed to be maintained. It is fundamental. The defendant is presumed innocent. Period. Otherwise, we may as well forgo the arraignments, discovery practice and all other delays. Just go to punishment. We pride ourselves that we do not do that in this country and criticize other countries who do.

The crime for which the Defendant was convicted is heinous to say the least. However, the goal is to have him stay around and face trial. He did. We also do not want him to be victimizing other people while awaiting trial. He didn’t. No, threatening suicide at an extremely stressful time in which the day of Judgment is just about upon him does not qualify. By the way, you may note that allegedly took place long after any bail hearings and so really could not be considered at arraignment unless the prosecution was actively engaged in time travel.

So, looking back, it would appear that, according to the law and the principles to which we say we adhere…the bail decision was correct.

Further, opponents against Coakley have an easy political target (despite its disassociation with criminal justice reality) for a couple of reasons. First of all, grand jury proceedings are secret. In fact, it was not until recent years that defense attorneys could share the minutes of the proceedings with their clients. Coakley is limited in defending herself because the delays in investigations within the grand jury cannot really be presented.

The other basic reason, of course, is that it plays upon the fear of the populace. “Soft on crime” today is similar to the cry of “Communist!” in the McCarthy Era. As we have also discussed in this blog, people do not get criticized for being “too tough” on crime, only the opposite. Not so many years ago, such politicalization of the system forced a judge to resign from the superior court bench. It is also a fear that surrounds every police officer, prosecutor and judge as they make decisions which affect people’s lives forever.

It is a fear that has gotten to the point that it brings the gift of miscarriages of justice every day.

So, what does this have to do with you?

As we have also discussed many times, people are often shocked when first presented with involuntary invitations to participate in the criminal justice system. All the previously held beliefs about how the system works, that the bad guys are punished and the innocent immediately go free are found to be fantasy. Suddenly, when it is their or a loved one’s turn, the damage that the above-mentioned fear has done to the system becomes the reality.

And, yes, it could happen to you.

So, two messages today. First of all, do not be so quick to cheer on arguments about the criminal justice system that feel good at first but really break down in the light of reality. Second, if you are facing such a situation, you want to have a criminal defense attorney who is aware of this problem and knows how to best combat it. If you wish to discuss it with me, please feel free to contact me at 617-492-3000.

To read the original story upon which today’s blog was based, please visit the website http://www.boston.com/news/politics/2008/articles/2010/01/06/some_saw_coakley_as_lax_on_05_rape_case/

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