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’s Take: “Robbery, Assault, Armed Career Criminal…What Did I Do?”

Yesterday, we discussed Darryl B., (hereinafter, again, the “Defendant”) and his legal difficulties resulting from a confrontation with local police in Allston, MA. Said difficulties resulted in the awarding of the Commonwealth bracelets of shame, involuntary Commonwealth housing and various criminal charges including Armed Robbery, Assault with a Dangerous Weapon and the like.

In brief, the Defendant is alleged to have robbed a polling place during Tuesday’s primary election with a gun. The police were notified and he fled. When the police caught up with him, the Defendant allegedly pointed the gun at them. Finally, deciding not to die, he put the gun down.

The Defendant has been charged with unlawful possession of a firearm, unlawful possession of ammunition, unlawful possession of a dangerous weapon, assault by means of a dangerous weapon, and being a Level III armed career criminal because of prior gun convictions for incidents in 2002 and 2004, Suffolk district attorney’s spokesman Jake Wark said.

Often, I find that clients are surprised when, after committing a few criminal acts , they are charged with more criminal charges than they had expected.

It would not be surprising to hear the Defendant protest, “Ok, I stole the money, but I did not hit or shoot anybody! What’s with all the charges?”

First of all, many people misunderstand the nature of assault charges. The crime of assault is to instill fear and threaten to use force. Actually committing the force, or touching, is the battery. As an example, If you and I are in an argument, and I pull back my fist as if to strike you, I have committed the assault. If I follow through and hit you, I have committed the battery.

In the Defendant’s case, he might have been able to be charged with more than one count of assault because he pointed the gun at the police, but he also may have pointed it at people when he allegedly robbed them.

The “dangerous weapon” mentioned in the charges is, of course, the gun. The same is true with the possession counts. The ammunition comes from what was found inside the gun.

Yes, the ammo gets its own charge.

It should be pointed out that prosecutors do regularly “over-charge” cases…at least, in my opinion and experience. This is done for a variety of reasons, not the least of which is to give the Commonwealth something to bargain with should there be a plea bargain.

Please do not take this to indicate that prosecutors bring charges that there is no arguable evidence for. That is not the case. However, said evidence can be quite weak and/or tangential to the case’s essence.

“Well, what about the different possession charges, Sam? Why the multiple charges? Isn’t that “Double Jeopardy or something?”

First of all, Double Jeopardy is something altogether different. It means that a defendant cannot be tried more than once (placed in jeopardy) for the same crime. the jeopardy considered does not attach until either a jury is sworn or a judge (in a judge trial) begins hearing evidence. There are exceptions to this, but we can discuss that at a later time.

Often, the same actions are elements of different crimes. For example, hitting somebody over the head with a bazooka is, obviously, a battery with a dangerous weapon (to wit: the bazooka). However, not having a license in the first place to have the bazooka, wins one the charge of unlawful possession of that bazooka.

In this case, it was apparently illegal for the Defendant to have the gun for a couple of reasons. First of all, he had no license. Second, because he had previous felony convictions for violent crimes, it was illegal for him to be in possession of the weapon..

“Well, wouldn’t that logically be the same thing? If it was illegal for him, because of his record, to have the gun, then he couldn’t legally get the license in the first place.”

Logically, that is correct. However, as I have indicated in the past, do not depend on logic when dealing with our system of justice. It has a logic all its own which does not always coincide with our view of logic in the real world.

This is one reason why you want to have an experienced criminal defense attorney guiding you in the process from as early on as possible. I can tell you from experience that clients are routinely shocked at the differences between the logic in which they have always believed and the logic which rules the criminal justice system.

It actually does not mean that either sense of logic is right or wrong. As I have discussed before, the logic is based upon the perception of reality of the beholder. In terms of the criminal justice system, that beholder often has a different perspective than those who stand accused.

Sometimes, from the rest of us as well.

In any event, if you are about to enter the jaws of the criminal justice system, or are midway through, and would like to discuss your journey with me, please feel free to call me to arrange a free initial consultation at 617-492-3000.

In the meantime, have a great, safe and law-abiding weekend!

For the original story upon which today’s blog is partially based, please go to http://mobile.boston.com/art/34/news/local/breaking_news/2010/09/_by_globe_staff_8

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