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: The Kerrigan Case – Boston’s Latest Confrontation Between Homicide Prosecution And Human Emotion

The Kerrigan family may have you alittle confused. The Boston Medical Examiner’s office says that the father (hereinafter, the “Deceased”) died because of an assault by the brother (hereinafter, the “Defendant”). The rest of the family is praising what a fantastic role model the Deceased was, but are standing by the Defendant. The District Attorney is trying to figure out what is the right move in the case.

Meanwhile, the superstar of the family, daughter of the Deceased and sister of the Defendant, former-Olympic but now-media star is publically vowing to fight the ruling that concluded her beloved father was murdered during a brawl with his son. In fact, in a long letter sent to friends that illustrated her adoration for the Deceased, Kerrigan yesterday defended the Defendant and called the state medical examiner’s ruling regarding the death “unjustified.”

The Defendant, meanwhile, remains at Bridgewater State Hospital, has pleaded not guilty to assault and battery on an elderly person,and wonders about his fate. Lord only knows what type of turmoil he is in.

” ‘Turmoil’? But he is the Defendant! You mean he is afraid of what the punishment will be?”

No, actually, I meant what I wrote. Do you think there is very much the system can do to him that is not dwarfed by what he must be going through inside?

I have written many times about how media coverage and, indeed, fear of it often rules the criminal justice system. There is something else that plays a huge part in it and always has. Basic human emotion.

I think that people sometimes forget that the participants in the system, including yours truly, are also human beings. All human beings have foibles and emotions. Even judges, prosecutors and defense attorneys.

Also plagued with being human are criminal defendants, victims and families that are involved in the system.

Can you imagine it? You love your father. He is the “go to guy” upon whom the family relies. You also love your brother, who is greatly troubled. He has been in jail, and has undisputed psychological problems. In fact, so deep is the love for this brother, that the family allows him to stay at the house in an effort to help him get back on his feet. One day, there is an argument about something so simple as use of the telephone. The argument, as many do, turns physical.

And someone dies.

We, on the outside, have the benefit of clarity of mind and can coolly pronounce guilt. After all, grabbing someone in an argument, thus escalating it to domestic violence, is illegal. Case closed, right? Assault and battery. And then the apparent victim dies as a result of the fight. Homicide, right?

Perhaps. But, meanwhile, there is a human element here. And, by the way, the Deceased is not the only victim here. So is the family.

I would submit that so is the Defendant. Is there really reason to believe that he actually meant to kill the Deceased? Was he really in control of himself when the argument with the man who had taken him in simply would not let him use the telephone?

The Kerrigan family, including the Defendant, are caught in a nightmare. Emotionally, it is a no-win situation. However, the Defendant is still here; the Deceased is not. And…speaking of the Deceased…what would the man who had taken his son into his home despite the obvious risks have wanted? In the past, he seemed to want help for his son. Does Prison provide such help?

Please do not misunderstand. I am not saying the criminal justice system, and, indeed society as a whole, should determine these things based on emotion. We shouldn’t.

I am just saying we should not ignore that element either.

…And, by the way, I think an experienced criminal defense attorney would know both what I am talking about and how to accomplish it in the courtroom. After all, part of our job is to remind people that the Defendant is not simply a cold-blooded reptile sitting next to his “mouth-piece”.

He/she is, after all, human.

If you or a loved one are facing such a nightmare and wish to discuss it with me, please feel free to contact me at 617-492-3000.

If you wish to view the article upon which today’s blog is based, please go to http://www.bostonherald.com/news/regional/view.bg?articleid=1232258

Have a great, safe and law-abiding Weekend and Valentine’s Day!

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