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.

Police Flier In Gang Murder Investigation Assumes Guilt

It has often occurred to me during my years as a Boston area criminal defense attorney that, once one abolishes the presumption of innocence, many efforts on the part of law enforcement become much easier.

It’s called being for “law and order” as opposed to “soft on crime” and is generally encouraged by society. Of course, it is antithetical to the United States Constitution and other laws of our country (not to mention the spirit behind them), but that’s simply a nasty nuance.

Who looks at nuances anyway?

Anyway, I have often indicated in these blogs that, while we still give lip service to the presumption of innocence, we generally accept the existing assumption of guilt.

Police Commissioner Edward F. Davis has announced that the Boston Police Department is now pursuing a new approach in finding alleged gang members. In this case, the department has released photographs of 10 unidentified young men because Commissioner Davis believes that the photographed gentlemen should be “shamed” for allegedly belonging to a gang that he contends bears responsibility for the death of a 14-year-old boy.

“We are doing this because we believe the community can play a role in making the individuals who are responsible for the execution of a 14-year-old boy outcasts in their own neighborhood,” Davis said in a telephone interview.

The Police Department distributed the unusual flier, which features what appeared to be mug shots of the 10 males, in the Dorchester neighborhood and to media outlets . The flier does not give the names of the individuals or the gang to which they allegedly belong. This decision had nothing to do with protecting those presumed innocent youths, of course. Davis said it was because he does not want to validate the gang by disclosing its name. He also declined to say whether the individuals have criminal records.

Apparently, there was no such reluctance in labeling this kids publically based upon…apparently…mere suspicion. After all, these kids have not been arrested, much less convicted for the crime.

The flier is believed to be the first of its kind printed by the Boston police, according to Elaine Driscoll, a spokeswoman for the department. Further, the individuals do not face charges in connection with the slaying, and Davis said the flier is not a wanted poster.

Don’t get the wrong idea though. Davis does say that the individuals are “absolutely high on our list of targets” for possible “legal action.”

The flier also asks people to contact the police if they know the whereabouts of the youths.

Attorney Sam’s Take:

“Sam…what’s the big deal? We have always had ‘wanted posters’!”

Yes, but this is not a wanted poster. Commissioner Davis is clear about that. Further, wanted posters are generally for individuals who already have warrants out for their arrests. When they are found, they are arrested. An exception is when someone is wanted for questioning in some police investigation.

Of course…this is not that either.

This little community love note does not indicate those posted are wanted merely for the seeking of information. It does not even indicate that they are wanted by law enforcement at all. It merely tells the community at large that Commissioner Davis (apparently a newly appointed judge in Commishland) has made findings of fact and, apparently, law that the youths are guilty. The sentence passed is “shaming”.

I have to admit that, despite my 25 years in the criminal justice system, I have not come across this particular sentence. I do know, though, that it was part of the sentences that used to be imposed centuries ago. For example, this was one of the reasons stockades were used.

Of course, such sentences have been done away with. At least, they are no longer carried out in the United States…Commishland may have its own penal code.

At any rate, the good Commissioner apparently has left it to the community’s imagination what the “shaming” should be. Given the various reports we hear about gang violence in the area, I must wonder if this is such a good idea. Here, “shaming” could be deadly.

Likewise, despite the fact that the Commissioner has not named the gangs allegedly involved, he may also be putting the youths in danger in another way. Perhaps they do not want to draw attention to themselves. Perhaps these youths will now be seen as a liability to said gangs. Perhaps, so labeled, opposing gangs, now seeing who was allegedly involved in the murder, might take the cue from the Commissioner to “fire away”.

All this about a bunch of youths that law enforcement does not even have enough evidence against to bring charges, much less convict anyone of them.

Wonderful when you can sidestep Constitutional safeguards.

Think it cannot happen to you? Guess again. If you are being drawn into a police investigation, or are actually facing charges, you want to have experienced defense counsel to advise and represent you. Should you be interested in inquiring if you want that to be me, please feel free to call me at 617-492-3000.

To view the story upon which today’s blog is based, please go to http://www.cbsnews.com/8301-504083_162-20005021-504083.html

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