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 Continues To Discuss Recent SJC Ruling In Murder Appeal And Criminal Investigations (Part Two)

Yesterday, we discussed the mechanics of this matter. Basically, we addressed the difference between a criminal appeal and a motion for a new trial as well as why it may have made sense for the defense attorney, prosecutor and SJC to take the action that they did. I should point out, by the way, that although this is a murder case, it does not change the procedures we discussed yesterday.

The case involved the December. 13, 2005, killings of four men in a basement in the Boston area. It had been dubbed the city’s worst shooting in 10 years.

The Defendant was convicted by a jury of killing Jason Bachiller, 21; Jihad Chankhour, 22; Edwin “E.J.” Duncan, 21; and Christopher Vieira, 19. Prosecutors said that he shot the men because he wanted a 9mm Glock pistol Vieira legally owned. According to them, and, it would appear, the jury, the Defendant took the gun from Vieira, shot him, then turned the gun on the three others as they tried to run away.

The Defendant was convicted and sentenced to consecutive life sentences. As discussed on Monday’s blog, the Commonwealth does not have a death penalty, so that is as tough as sentences get.

As with most criminal convictions after trial, the Defendant has appealed the convictions. In the meantime, new evidence has popped up which has brought this case to the attention of the media.

A gentleman by the name of Robert T. (hereinafter, the “Accessory”), who was apparently at the shooting, had admitted he watched as the Defendant shot the men. However, he has allegedly told a fellow inmate that it had been he who was the actual shooter.

Armed with this newly discovered evidence, the Defendant now sought a new trial.

Attorney Sam’s Take:

“Well, that should be it then, right Sam? Someone else confessed, so, at the very least, the Defendant should get a new trial or be set free?”

It is not nearly that simple.

You see, the Commonwealth looks at such after-trial statements with a great deal of suspicion. The courts, also, do not readily throw out convictions on the word of someone who may or may not be telling the truth.

“Why would someone lie about committing murder?”

Well, it is important to remember that the Accessory did not give the Commonwealth a confession to the crime. First we need to get over the hump that it is another gentleman, Craig S. (hereinafter, the “Witness”) who claims that said confession was made. True, inmates talk, and sometimes, brag, but the first question that the Commonwealth and court must resolve is who is this witness?

Let’s look at the history of this matter. The Witness was not a heretofore unknown to the prosecution.

According to the Commonwealth, the Witness is currently serving two consecutive life sentences of his own. He is also said to have lied to investigators about what he knew in order to be transferred from a maximum-security prison to a medium-security one.

In fact, the Commonwealth claims that the release of the Witness’ statement took so long because investigators needed to look into the statements and wait to see if more witnesses would come forward. Also, if the Witness was telling the truth, they had to allow more time for the Accessory to make additional incriminating statements.

In this humble defense attorney’s opinion, of course, this is garbage. Yes, they should do their investigation, but the evidence still should have been given over to the defense immediately.

By the way, there is also reason for the Witness to not speak to the Commonwealth. Anybody out there hear what happens to people determined to be “snitches” in state prison?

Still, the Prosecutors said there were also delays because they needed to coordinate schedules with the Accessory’s lawyer before they could interview him. Again, in the meantime, what was had could still have been delivered to the defense with an explanation that they, the good old prosecution, was investigating. Who knows…maybe the defense would have wanted to conduct their own investigation…

Still, I digress with unimportant issues such as fundamental fairness.

Prosecutors further say they learned that after the Witness was convicted in 2007 of murder, he tried to convince detectives he had information on seven other murders but would not cooperate unless guaranteed a reduced sentence. The Commonwealth further claims that detectives and prosecutors decided not to “work with” the Witness because they deemed him unreliable and untrustworthy based on his extensive criminal history and the fact that he was giving inaccurate and incomplete information,” the prosecutor says..

The Defendant’s attorney, however has pointed out, “Prosecutors use jailhouse snitches all the time when they’re seeking prosecution of somebody,…In each case, they have a profile not dissimilar to [the Witness]. It would be very curious if the district attorney took the standard they’re applying to [the Witness] and applied it to every jailhouse snitch they put on the stand to try to get a conviction.”

She is right. Therein lies the real fundamental unfairness in this situation and, indeed, the criminal justice system.

Generally, particularly when felony crimes are investigated, it is the prosecution (which includes the police) who “investigates” what happened, often, leaving their suspects in the dark in the name of “safety”. However, as we have seen time and time again, the investigators are far from unbiased truth seekers. They are usually advocates who have already decided what they believe the “truth” to be. Therefore, whatever is consistent with their theory is reliable. Whatever does not fit is not reliable.

That would be fine…if the defense was on an equal footing.

But it isn’t.

After the investigation, the defendant is given a chance to give a statement to hang himself, the already formed and committed evidence which the prosecution has found “reliable” and, if fortune shines, the crumbs of whatever else may be out there.

In the meantime, witnesses have been threatened, pressured and/or rewarded for giving a story which they had better stick to unless they want to wear the Commonwealth bracelets of shame.

Too late, in many cases, to do a complete fresh and timely investigation for the defense…yet why should they have the ability to investigate? After all, it is only the defendant who stands to lose his or her freedom.

“Besides”, the Commonwealth says with open arms, “Trust us. We are your government!”

I have been around the criminal justice system for over a quarter century.

Both sides of the aisle.

Don’t.

If you have been accused of a crime, you are already behind those who seek to take away your liberty in the name of what they call “Justice”. You need someone who can see clearly through the dust that the prosecution has left in their trailblazing sprint for the “Truth”.

Get someone who has the experience and talent to be able to do so and give you the best chance to turn things around. If you would like to investigate me as that potential someone, please feel free to set up a free initial consultation with me by calling (617) 206-1942.

TOMORROW’s Attorney Sam’s Take…Law And Order: Criminal Intent and what do we really mean by “truth” anyway in the criminal justice system?

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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