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.

Massachusetts Homicide And/Or Assault Charges May Issue Against MBTA Drivers – Attorney Sam’s Take

Happy President’s Day! I see that the Commonwealth has been celebrating the long weekend by making all presidents, both past and present, grateful that they no longer need to ride public transportation.

Let’s first turn to Lynn first. There, an MBTA bus driver has been suspended after allegedly having a bit of an issue with a passing vehicle. According to an MBTA spokesman, the driver is said to have thrown a coffee into the passing vehicle.

Apparently, the incident took place when the bus was pulling out of a bus stop. It was then allegedly cut off by a pick-up truck. Being mature Massachusetts drivers, the two exchanged heated words. Then, showing a real outbreak of responsibility, the bus driver is reported to thrown a cup of coffee into the truck, striking a passenger.

The truck driver reported the incident to police, and the bus driver was pulled over in Peabody.

The bus driver has been suspended and is now awaiting a court summons.

As unfortunate as the truck driver was, at least he is still alive. You see, another gentleman was actually struck and killed by a red line train in Cambridge this weekend.

Red Line trains were delayed for a few hours after the incident, replaced by busses.

Finally, service was restored.

The man who had come into contact with the train was not.

Whether there will be any criminal charges, such as some kind of vehicular assault or homicide remains to be seen.

As an experienced Boston criminal defense attorney practicing criminal law, I can tell you that when these types of cases happen, and the news hits the local prosecutor’s office, time skips a beat.

“Do we send someone out there?” “Is this a criminal case?” “Is anybody dead?” and “What is the media saying about it?” are the questions that come pounding into decision-makers’ heads, whether they be the actual DA or simply a supervisor.

Of course, different offices have their own procedures and priorities. Unfortunately, the last question is one which gets top priority now matter which office, or which state, you are talking about.

In these two instances, criminal charges will certainly come to at least one of the drivers.

This would be the coffee-wielding bus driver
There are a number of possible other charges, but assault and battery with a dangerous weapon (to wit: the coffee) will almost certainly be leading the pack. The main question is whether the summons coming his way is for an arraignment or a clerk magistrate’s hearing.

The difference between the two is an important one. Once criminal charges have been filed, a complaint is issued and the defendant must show up for an arraignment. At the arraignment, the defendant is informed what charges he or she is facing, pleads “not guilty” (usually) and is evaluated for whether or not an attorney is appointed and whether or not bail is appropriate.

At this point, the matter goes onto the defendant’s criminal record.

A clerk magistrate’s hearing is a step before an arraignment and may cancel the need for it. Here, a criminal clerk sits down with the parties (neither of whom are actually required by law to be there) and decides whether probable cause exists for the complaint to issue. If so, the complaint will issue and the next stop is arraignment.

In most cases, probable cause is easily found. It is a pretty low standard. However, there are cases wherein probable cause may exist, but a magistrate may be convinced not to issue the criminal. In most cases, this is done because some kind of an understanding has been reached between the parties.

“Hey…that sounds like a good result for a criminal case, Sam.”

It is.

“How do you get it?”

Usually, although most police officers will tell you that you don’t “need” one, having an experienced criminal defense attorney on the case at the hearing, if not beforehand, will enable you to fully take advantage of the opportunity to work the matter out at the clerk’s hearing.

My suggestion is that this would usually be the most important step to take in preparation for the hearing.

If you want to talk to me about a case, feel free to call me at 617-493-3000.

In the meantime, have a great, safe and law-abiding President’s Day!

To view the original stories, please go to : http://www.boston.com/news/local/breaking_news/2011/02/mbta_bus_driver.html and http://www.boston.com/news/local/breaking_news/2011/02/emergency_shuts.html

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