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.

Woburn Assault Sentencing For Mark Kerrigan – How Did We Do? (Part 2 of 2)

There are alleged truths that we treasure about our criminal justice system. We hold these beliefts dear because they make us the “fairest” system in the world.

Among them are the following:

1. All accused are presumed innocent unless and until proven guilty beyond a reasonable doubt.

2.We believe that a jury verdict is the word of the people, our peers. Except in situations where we find that the judge made a legal error that deprived the defendant of a fair trial, we generally adopt the jury verdict as truth.

3.Our system is as compassionate as possible. While we also wish to punish, our other main objectives in passing down criminal sentences are consideration of the defendant’s past and hope for his/her rehabilitation, the effect of the case on the victims and the protection of the community.

Now, let’s apply these beliefs to the verdict and sentencing in Commonwealth of Massachusetts v. Mark Kerrigan, a Middlesex County homicide trial.

Attorney Sam’s Take On The Sentencing of Mark Kerrigan’s Massachusetts Assault and Battery Conviction

It is important that you read my previous blog (part 1 of 2) on this subject to follow the discussion, although I am sure you have heard about the case ad naseum.

Let’s see how we did here regarding the above three beliefs about our fair and compassionate system:

1. We have often discussed how this does and does not often play out in criminal justice reality. However, in this case, as discussed previously, the jury found Mr. Kerrigan not guilty of manslaughter. In fact, given the degree of assault and battery the convicted him of, they were clearly not convinced that he caused any serious injury to his father. The found him guilty of simple assault and battery, which is an offensive touching. This is a misdemeanor charge which carries the maximum possible sentence of 2 ½ years in jail.

Usually, in cases in which a defendant receives the maximum possible sentence, there are aggravating factors or the defendant has such a horrible criminal record that he is a threat to the general community.

In this case, any aggravating factors would be items which the jury clearly rejected as being his fault. Therefore, under our innocence presumption, he remains not guilty of them.

Surely, we would not expect a judge, in sentencing a criminal defendant, to hold said defendant responsible for that which the jury acquitted him. At least not in Massachusetts Superior Court. In fact, on the surface, there is little to indicate that the judge did this here. During her announcement of her considerations in deciding the appropriate sentence, she did not refer to the manslaughter or the causing of any serious injury.

2.I do not believe we did so well here. Judges generally pay great heed to the statements and wishes of victims during sentencing. There is a reason why the law grants them that opportunity. Normally, of course, the victims appear at the behest of the Commonwealth, usually chanting something like “Hang Him High”. In this case, the victims appeared on the side of Mr. Kerrigan. It would appear that their words rang hollow when it came to the sentence. Was it because they were offered up by the defense, not the prosecution? Clearly, their desires were totally ignored.

3.As the judge noted, Mr. Kerrigan has a long history of emotional and substance abuse problems.. While he has failed in the past, it is clear that he needs help and the judge even mentioned a hope that, one day, he will utilize that hope. However, she gave him a sentence that provides little possibility for that hope.

There will be no such treatment as he pines away in jail, dealing with the loss of his father and, perhaps bitterness, of being accused of causing his father’s death (again, of which the jury found him not guilty). While Mr. Kerrigan will be eligible for parole sooner than the two years, there is little reason to believe that he will be paroled any time soon. First of all, given the current state of fear on the part of the Parole Board, letting perceived violent offenders out is about as popular as sticking burning coals into one’s eye socket. Second, given the publicity of the case, the Parole Board will be even more cautious not to let him out…”after all”, as we often hear, “what if he gets out and kills somebody (else)?

Massachusetts probation is what we normally use to force someone to get the help they need. If they refuse, then we surrender them and send them back to jail. However, this opportunity has really been denied Mr. Kerrigan. 6 months, adjusting after 2 years in jail, is not about to change anything.

Therefore, any hope of rehabilitation is basically gone. That’s bad news for Mr. Kerrigan and family and for the rest of the community. You see, in the not so distant future, Mr. Kerrigan will be back out in the public. What will his condition be then? And remember…there will not be much probation supervision in his future to guide or watch him then.

“But Sam…he did not do too well on probation before”.

Maybe, but perhaps the tragedy with his father, spending months in jail and being accused of manslaughter shocked him into realizing he had a problem that had to be dealt with. At least, isn’t it worth a try?

No, I am afraid that the court really missed the mark this time. However, if the desire was to appear to be “tough on crime”, the judge succeeded completely.

Many people do not realize that a jury has no role in delivering a criminal sentence, except in death penalty cases (which, thankfully, Massachusetts does not have at this particular moment). Perhaps, if this were changed, it would not be so easy to ignore a jury’s verdict and what said verdict actually means.

“So, Sam…it’s all doom and gloom? No Justice in the Justice System? Are we all doomed?”

Not to this experienced criminal defense attorney.

There are problems in our system, but I still basically believe in it. I do think it is important, though, for the public to understand the reality of it. Until they do, there will be no real improvement where we badly need them. That is what these blogs are about.

But the biggest sign of hope? Most of the participants basically care. Most, although I may think they are misguided at times (and I am sure the feeling is mutual), actually believe that they are doing the right thing. There is no reason to think that the judge in this case did not really think about her sentence and try to deliver the sentence she thought was proper. Most importantly…we can talk about it. We can write about it. We can care about it.

Therefore, where necessary, we can change it.

But first, we have to know. We have to care. We have to realize that it effects each and every one of us at some time…not just some percieved “ them

If you would like to discuss a criminal matter with me, please feel free to call me at 617-492-3000 to arrange a free initial consultation..

Have a great, safe and law-abiding Memorial Day Weekend!

To view the article upon which this blog is based, please go to http://boston.cbslocal.com/2011/05/26/sentencing-day-for-mark-kerrigan/

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