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: Truth, Witnesses And The Murder Of A Boston Pizza Delivery Man

SPECIAL SATURDAY EDITION

This has been a bad stretch for the Boston area in terms of homicides. Police believe they have solved the 43rd murder this year as compared to 38 killings last year at this time. The pizza delivery killing was the fifth murder in Boston in the last week.

By way of update on the pizza delivery murder,Boston police have arrested three people in connection with the slaying of 58-year-old Richel N., (hereinafter, the “Deceased”), the Domino’s pizza delivery man who was stabbed to death while making a delivery in Hyde Park early Thursday morning. According to authorities, he was lured to a vacant house, where two men and a woman allegedly robbed and stabbed him.

After the Deceased was stabbed, the three allegedly drove off in his Subaru Legacy, which was recovered Thursday at church parking lot on River Street. Police sources said investigators found “a lot of evidence” in the vehicle and detectives worked around the clock to make the arrests.

Two days ago, the news featured another piece of evidence which may well have helped in the investigation. Maria C., a Hyde Park woman, (hereinafter, the “Witness”) indicated that she feared that she unknowingly aided the Deceased’s killers. She indicated that at around the time the call to Dominoes was apparently made, she lent her cell phone to a woman. While the Witness states that she did not hear who the woman spoke with, she fears that the call was to the Deceased’s shop.

The Witness said she had just arrived home from church and looked out her window when she saw the woman outside, asking for help to use her phone. The Witness sent her son out to hand the woman her phone, at about 11 p.m. She did not hear the conversation, and she describes the woman as heavyset and speaking with a hint of Creole “.

Now, taking a side-step here, I turn to the question I have been telling you I would address. We speak a lot about “truth”. The criminal justice system is (allegedly) all about “truth”.

The oath witnesses take begins, “Do you swear to tell the truth, the whole truth and nothing but the truth…” People actually believe that, in court, we are trying to seek out the “truth”. Some even believe that “truth” is all that investigating officers seek.

And yet, me and my kind (criminal defense attorneys) seem to suggest that “truth” is not what everybody is seeking.

So, first of all, let’s define it. What do we mean by “truth?”

I would substitute another word of “truth” if you don’t mind. Let’s call it “reality”. In court, as the saying goes, we are trying to find out what really happened. What are the facts? In other words, what is the “reality”?

I have instructed law students and less experienced trial attorneys for many years. I was part of the adjunct faculty at the Boston University School of Law. Here is what I teach my students and what I have found to be the case, at least in court, over the years:

There is no “reality” .

“Whhhaaaatttttt?!?!?!”, you may exclaim. “Sam has finally lost his mind!”

Not at all. “Reality” does not exist because it is dramatically affected by the perception of the audience who is perceiving it. Nowhere is this more true than with fact-finders at trial.
You see, until we create a true time-machine, we will never know what factually took place. In fact, even if we did, in cases where state of mind are involved, even that would not reveal what we generally mean by “reality”.

Let me give you an example. I walk into my apartment and see that Karl Klepto, my roommate, has a book on his shelf entitled The Law According To Goldberg. I have been missing my copy of said work of art for weeks. I open the cover and see a design that I often write on the first page to mark my books. Clearly, this is my book. I take it and bring it into my room.

Karl sees it there and is incensed that I took his copy of such a literary gem.

From my perspective, I took back a book that was clearly mine. Karl claims that it is his book. He says he was given it by Terry Trashpicker who had told him he found it in the library trash where, incidently, he claimed, it belonged.

Let’s take the matter to court, shall we?

I testify about the book and the marking and that I had had some difficulty finding it, but I believe the last place I put it was “somewhere in my room”. Karl testifies as I stated above.

Unfortunately, disgusted with the whole mess, Terry has left the state.

Who is telling the truth? What is the truth? Maybe everybody is telling the truth. Maybe nobody is telling the truth. Still, the jury has to figure out something because, in this case, the issue presented to the jury, is “who’s book is it?”.

The jury goes back to deliberate.

Juror 1 says, “They both seemed like they believed they were telling the truth…so I guess the question is whether we follow the “Finders Keepers” Statute.

“Not so”, says Juror 5. “Did you notice that every time Karl talked about being given the book, his nose twitched? He was lying about how he got the book.”

“But Terry had told him that the book was in the trash”, exclaims Juror 3.

“Who even knows if Terry even exists?”, screams back Juror 1.

And so it goes. Let’s go back to a potential police interview with Witness in the pizza murder case.

“You say you did not know the person you lent your phone to?”

“No. She just seemed to need a phone…”

“Sort of like an emergency urge for pizza? Does that sound believable to you?”

“But I did not know who she wanted to call.”

“No, but you voluntarily contacted the authorities suggesting that it might have been your phone that was used to lure the victim to the location.”

“I did that because of the time and place involved. I was just trying to help the investigation.”

“Really? Or, were you afraid that the other three left you in the lurch and, knowing that we might check phone records, start planning your own defense and become a Commonwealth witness instead of a defendant?”

“Look, I was just minding my own business, having just returned home from church…”

“Oh, that is wonderful! Church! In other words, a church-going woman like yourself would always tell the truth, right? Tell me, do you always go to church around 11 at night?”

And so it goes. Believe me. I have seen police/prosecutor interrogations. This is not an exaggeration.

Let’s take this one to trial. If the Witness testifies on the part of the Commonwealth, the above interrogation is likely to be similar to the cross- examination by defense counsel. If she is a defendant, and testifies, it will be the cross of the prosecutor.

Where is the truth? The jury has to figure this all out. And they will figure it all out with the help of their perceptions of the Witness as well as whatever baggage they bring with them into the courtroom.

Weeding out much of said baggage is what jury selection is all about. However, for the most part, jury selection in the Commonwealth is woefully short and reveals fairly little.

And so the jury, like the investigating officer on the street, will determine “Reality”.

It is indisputable that various people will interpret various happenings in different ways. It is the observations plus the perceptions of the interpreter that makes up what we call “reality” in the criminal justice system.

To ignore this, as a trial lawyer, is to be naïve and ineffective .

Might I suggest that if you find yourself embroiled in the system, that you find an attorney who understands how this works in the courtroom to represent you?

If you would like that to be me, please feel free to call me at 617-492-3000 to schedule a free initial consultation?

In the meantime, enjoy the rest of the Labor Day Weekend, having a great, safe and law-abiding time!

Tuesday’s Blog: Students Return To School – A Return To Bullying

For the original stories upon which this blog is (partially) based, please go to http://www.boston.com/news/local/breaking_news/2010/09/police_arrest_t_2.html and http://mobile.boston.com/art/35/news/local/breaking_news/2010/09/boston_police_s_17

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