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.

A Boston Criminal Attorney Discusses SJC’s Ruling In Murder Appeal Motion (Part One)

The Massachusetts Supreme Judicial Court (“SJC”), the Commonwealth’s highest court , situated in Boston, has rejected a motion by Calvin C., convicted in the 2005 Bourneside murders,(hereinafter, the “Defendant”) to stay his appeal so that he could seek a new trial based on evidence he said showed he was framed.

The Defendant is currently serving four consecutive life terms for killing four men in Dorchester.

The claim, as represented by the Defendant’s lawyer before the SJC, is that the Suffolk district attorney’s office had for over a year withheld information that potentially cast doubt on his guilt. This is known as “exculpatory evidence” which the prosecution is to deliver to the defense immediately upon discovering it.

On August 13th, prosecutors apparently provided the Defendant’s a February 2009 affidavit from an inmate asserting that another gentleman, who pleaded guilty to acting as an accessory to the murders, confessed that he was the real killer. Said gentleman was sentenced to 13 years in prison.

On Friday, the Supreme Judicial Court denied the Defendant’s motion for the stay on his appeal without offering an explanation or calling for a hearing. The Defendant had previously appealed the 2008 conviction, arguing that the trial judge in the case wrongly dismissed the one juror who believed the Defendant was not guilty of the murders. The Court of Appeals is still considering that appeal
Suffolk District Attorney Daniel F. Conley’s office said the decision was a victory for prosecutors, who acted “appropriately”.

Let’s hope he means that they acted appropriately in 2010…not during the withholding when it counted the most…! After all, he is the chief law enforcement politician in Suffolk County and his duty is, of course, to do justice and play by the rules.

But, there I go again, digressing to point out minutia.

“There was no foundation in the facts, in the evidence, or in the law to support the defendant’s motion,” Conley said in a statement. “In contrast, the evidence presented against [the Defendant]at trial was credible and overwhelming.”

That would be lawyer-speak for “No harm, no foul. He was going down anyway.”

“When there is newly discovered evidence, I think it is incumbent upon either party to bring it to the attention of the courts,” the Defendant’s attorney said. “It is our argument that [prosecutors] took a precious long time in bringing this information to light. We did not want to do likewise.”

Attorney Sam’s Take:

This story brings to light a few issues and so it is worth spending two days on.

First of all, it is important to understand the difference between an appeal and a motion for a new trial.

Unless it is waived, any defendant has the right to appeal his or her conviction. Such waiver would only happen as a result of a plea bargain of some kind. The appeal is based primarily on legal issues. In normal language, an appeal claims that the judge made a mistake which deprived the defendant of a fair trial. Generally, the appeals court gives great deference to the trial court and the jury because they were actually there at the trial to see and hear the witnesses. An appeal based on a claim that the jury was simply mistaken almost always is a sure-fire loser.

Generally, a criminal defendant has the right to one appeal. Depending on the issues, it may, if unsuccessful, travel up the appellate ladder through the SJC and even the United States Supreme Court.

A motion for a new trial is different. First of all, it does not have all the procedural limitations as does an appeal and need not be based solely on legal grounds. The issue in such a motion is whether or not justice was done. It can be brought at any time and issues like newly discovered evidence is a prime reason why such a motion would be brought.

While the appeal goes to appellate courts, the motion for a new trial goes to the trial court. In fact, it goes to the trial judge if possible.

From the defense standpoint, it makes sense to try to have the motion for a new trial heard before the appeal if said appeal has not yet been heard. There are various strategic issues and there are also issues of logic. Should the motion for a new trial be denied, it can be added into the appeal. If it is allowed, then there is no reason to waste time on the appeal.

To “stay” a proceeding is to basically put it on pause.

Actually, DA Connelly’s “no harm, no foul” approach is not really wrong and it would appear to have made points with the SJC. The Court likely weighed the chances of success of the proposed motion for a new trial. Assuming that the Commonwealth is correct, that there was a great deal of INculpatory evidence, and that the new evidence likely would not have made a difference, then the motion for a new trial may well fail.

If such is the case, the SJC could have decided that it made no sense to delay the appeal.

Tomorrow, we will address other issues that this case brings up for discussion.

In the meantime, if you have a criminal matter which you would like to discuss with me, be it an appeal, motion for a new trial or a matter headed for trial, please feel free to set up a free initial consultation with me by calling (617) 206-1942.

To read the original story upon which today’s blog is based, please go to http://mobile.boston.com/art/30/news/local/massachusetts/articles/2010/08/31/sjc_rejects_convicted_killers_stay_of_appeal_motion/

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