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.

Massachusetts Jury Being Selected In High School Murder Case

Last week, the Boston Criminal Lawyer Blog spent the week discussing the issue of bullying and the over-reactive indictments paraded before a hungry audience by a local district attorney.

Today, we return to high school. This time it is another high school though. The academic institution involved this time is the Lincoln-Sudbury Regional High School. Yesterday, jury selection began in Woburn for the trial of John O., (hereinafter, the “Defendant”) who stands accused of stabbing a 15-year-old youth to death at the school. The Defendant was 16-years-old at the time.

The stabbing took place inside a high school bathroom in 2007.

The defense is not the typical “It wasn’t me” or, “It was self-defense”.

The defense is apparently that of diminished capacity. The Defendant was apparently a special education student who had been diagnosed with Asperger’s Syndrome, a mild form of autism, and attention deficit disorder. More specifically, the defense says that his mental status left him unable to conform to the societal rules of behavior, especially when considering committing violent acts.

The Commonwealth, however, plans to rely on the Defendant’s own words and his alleged fascination with video games and horror fiction. It plans to paint a picture of a ruthless teen who was in full control of himself at the time.

The victim was a slightly-built freshman, who did not know the Defendant until their chance meeting in the school bathroom.

Jury selection began yesterday. So far, only four jurors have been seated.

The court also made certain rulings in Motions in Limine yesterday as well. The judge announced that she would allow evidence that the Defendant watched a violent, cartoonish Internet video before going to school the day of the homicide. The video depicts a cartoonish character killing 90 other cartoonish characters.

The judge also ruled that she would not allow jurors to hear that the Defendant had brought a fake gun and a jack knife to school on different occasions.

Attorney Sam’s Take:

Jury selection in cases like this can sometimes take a couple of days. The same is true in cases of sexual assault. It is not that the process is so different, but potential jurors often find it difficult to sit through such cases. As a result, there is a virtual parade of people raising their hands when questions like “is there any reasons why you feel you cannot be fair and impartial in this matter?” come up.

Otherwise, jury selection is usually pretty quick in the Commonwealth. A couple of hours quick! This is unfortunate because jury selection is important. In some forums, and other states, this process can take days and the attorneys are able to be more involved in the process.

Many people assume that the first thing to do when a trial starts is jury selection. Actually, before jury selection is a hearing on various motions that the parties bring called “motions in limine”. Latin again. This is the time for various trial motions. Often, clients wonder why certain motions have not been brought before the court earlier in the process. These motions which determine evidentiary issues as well as issues involving how the trial should be run are heard at this time.

No, not everything is up for grabs. For example, the defense attorney cannot bring a motion to force the prosecutor to speak gibberish through the trial and the prosecutor cannot request that he/she trade places with the judge. Usually, these motions will determine the ground rules of the trial, though, such as if a particular piece of evidence which is arguably inadmissible should not come in.

The tests are different from motions to suppress evidence which would have been heard previous to this time. In those motions, the defense is claiming that certain evidence should be suppressed because the defendant’s Constitutional rights were violated in an impermissible way. In motions in limine, if that same piece of evidence is being discussed, it is because the motion to dismiss was denied and that the defense is now arguing something along the lines of it’s being so prejudicial and non-probative that allowing it to come in will deprive the defendant of a fair trial.

For example, in the case above, there may have been a motion to suppress the fake gun and jack knife that the Defendant allegedly brought to school. Perhaps the argument was that these items were discovered during an unlawful search of the Defendant. Assuming that was the case, that motion failed. However, the defense has now apparently moved that it still should not be mentioned to the jury because it is unfairly prejudicial. If so, that motion was successful.

A defense of diminished capacity is a difficult one and an expert is generally necessary to have a chance with it. It is along the lines of what used to be called an “insanity defense”. However, these days, simple insanity may not be necessary. These types of defenses have worked in the past claiming that the defendant was unable to control himself or that she was unable to determine right from wrong due to a variety of things…including the consumption of Twinkies.

If you are going to trial, you want an attorney who is not only an experienced defense attorney, but also one who is experienced in trying cases. Usually, but not always, a long-time criminal attorney will have a great deal of trial experience as well.

Of course, you want one who also has a presence and is talented at trying cases.

In fact, choosing an attorney for a matter likely to go to trial is an important topic and one that I think we have not really deal with in the past. I will therefore spend our Friday blog on that topic.

In the meantime, in case you are wondering, I have been trying criminal cases since I was a Student prosecutor in Quincy District Court in 1984.

Wondering if I am any good? Why don’t you give me a call at 617-492-3000 and find out?

For the original story upon which today’s blog is based, please turn to : http://www.boston.com/news/local/breaking_news/2010/04/odgren_odgren_o.html and http://www.metrowestdailynews.com/highlight/x998208464/Three-jurors-chosen-so-far-in-Odgren-case

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