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.

Dilemma Of A Boston Criminal Defense Attorney In A Murder Trial

There were a few fireworks yesterday in Middlesex Superior Court in Woburn, Massachusetts. Attorneys argued over the topics of the defense attorney’s proposed summation. The Judge agreed with the Commonwealth and overruled the objections voiced by the defense.

The setting was Commonwealth v. John Odgren. The charge is Murder in the First Degree. We discussed this matter at the onset of the trial. Young Mr. Odgren, 19, (hereinafter, the “Defendant”) now awaits a jury’s verdict in his stabbing of another youth to death in school.

The Defendant admitted to the stabbing. However, the defense is that he was not criminally responsible for the homicide because he was insane.

The debate was what the jury could be told about the result should they return a verdict that he was not guilty by reason of said insanity. The defense attorney wanted to be able to argue to the jury that, if they returned such a verdict, that the Defendant would not simply be freed to go out and kill again. This, of course, is a common misunderstanding of the law, and one that can cost a mentally handicapped person liberty-by way of state prison- for the rest of said person’s life.

However, although the attorney argued vociferously that jurors often reject insanity defenses solely because of a false belief that the defendant would be released after a verdict is rendered, the court remained firm.

The attorney also asked that the court instruct jurors beyond the typical jury charge and explain that prosecutors generally seek to have a defendant committed. Typically, a judge would order the defendant to be evaluated at a state mental health hospital, and a doctor would ask that he be held. The defendant can petition a judge for release on an annual basis. Further, that such defendants are held for much longer than required for a conviction of manslaughter or second-degree murder.

The Commonwealth opposed the request, saying that there is no certainty of what will happen if a not-guilty verdict is reached and that the jury should not hear about any hypothetical situation.

Prosecutors are seeking a conviction of first-degree murder.

The court initially took the matter under advisement.

Attorney Sam’s Take
“Hey, Sam, I read that the defense attorney was outraged and really challenged the judge. Is that wise to do during a jury trial?”

As is usually the answer when it comes to the law…it depends. Generally, one does not want to alienate the judge. After all, in a jury trial, even though the judge is not the fact-finder, the judge does make evidentiary rulings which effect what the jury hears. Further, jurors tend to look up to judges and so if they detect that the judge does not trust or like a particular advocate, it can be devastating to the case. It is, though, important to note legal arguments such as we are discussing today, take place out of the presence of the jury.

However, a defense attorney has to weigh the potential damage of alienating the judge with doing his or her job for the client. After all, particularly in a murder case, the rest of the client’s life is on the line and the one thing that stands between life-time incarceration and something less horrific is the defense attorney.

There are times when a lawyer has to continue the fight even though it angers the court. Sometimes, even though it might bring the risk of sanctions against the attorney himself.

The issue in this particular argument is an interesting one. Generally, at least in Massachusetts, the jury is not allowed to consider what might happen to a defendant if they find a certain way. Sentencing, after all, is usually up to the judge. The jury only decides on the issue of guilt. In fact, judges routinely advise the jurors that they are not to think of sentencing and that this is solely the province of the judge.

On the other hand, if we wish to consult reality and bring that into the courtroom, then the attorney is right. Long gone are the days that people do not have opinions and beliefs about the criminal justice system and the ways it does and does not work. A fear that a jury, merely afraid that the unbalanced killer is going back on the streets if they acquit him is natural and likely.

Laws and procedures are changed all the time by crusading lawyers who insist on things like reality even in the face of judicial anger. It is what appeals are made of.

And, yes, it helps keep us all safe from dangers that most of us have the luxury of not being aware of…until the finger of accusation finds us.

And so I must add a new adjective to experienced and talented when describing the type of criminal defense attorney one should seek.

You also want one who cares and will fight for you.

If you have any question as to whether I am one of those, I invite you to be a regular reader to my blog. In the meantime, if you wish to consult me in a matter, please feel free to call me at 617-492-3000.

For the original stories upon which today and Monday’s blogs are based, please turn to : http://www.boston.com/news/local/massachusetts/articles/2010/04/23/judge_in_odgren_case_asked_to_explain_insanity_verdict_details/ and http://boston.com/community/blogs/crime_punishment/2010/04/reatment_not_punishment_for_od.html

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