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.

Roxbury Man Faces Jury Again In Boston Murder Trial

The scene is Suffolk Superior Court in Boston, Massachusetts. It is a Boston murder trial.

Shawn “Shanks” Daughtry of Roxbury is the 32-year-old gentleman hereinafter referred to as the “Defendant”. He is accused of shooting two people on September 20, 2007. One of them died. The other was the deceased’s mother.

Today, said mother, Sandra Duncan, is on the witness stand, weeping. She tells the jury of her 29-year-old son’s final words to her as he lay dying on the front porch of their home.

“He said, ‘Ma, who did this to me?’ ” she tells the jury. “He said it three times.”

This is not the first jury before whom she has testified. This is a re-trial. The Defendant is being re-tried for the first-degree murder of Urel Duncan. In the first trial, last May, the jury was deadlocked; it could not unanimously find the Defendant guilty or not guilty.

According to the Commonwealth, the Roxbury shooting was motivated by a feud with people associated with the Academy Homes housing development. In fact, the shooting took place outside the Duncan home in the development.

As it turns out, however, neither Urel nor his mother were involved with gangs. She says that she was in her bedroom when she heard what sounded like firecrackers.

“I saw my daughter crawling on her knees and saying, ‘Ma, (Urel) got shot,’ ” she said. “I see Urel lying back on the steps … blood coming out of his head.”

Urel died the next day.

The trial continues.

Attorney Sam’s Take On Sympathy And Jury Verdicts

As will happen in the DiMasi trial in Boston’s federal court next week, the judge tells the jury the law they are to follow when they deliberate. This is done after the attorneys give their closing arguments and before the jury goes out to decide upon a verdict. The judge delivers these instructions in what we lawyers call a “charge”.

During the jury charge, the judge tells the jury a myriad of things that they are not to consider when making its decision. One of these things is sympathy. At the same time, the judge will tell the jurors that they are to use their common sense and their “every day experiences”. On the other hand, they are to decide the case based on the evidence they have heard and nothing else.

Generally, jurors get somewhat confused during the instructions. However, in my experience, they do try to follow the charge.

Evidence like the sight of the mother crying and describing her son’s dying words is designed to gain sympathy from the jurors, regardless of its relevance. Make no mistake. Trial attorneys, including assistant district attorneys, are advocates and they want to win.

The image of that mother, however much the jury is told to forget it, will remain with the jurors as they deliberate. And, rules or instructions aside, that is what it is designed to do. One of the things that prosecutors regularly play on is the grief suffered by the witnesses it calls “victims”. It is a weapon that the defense seldom has at its disposal.

I am not involved in the Defendant’s case (or else I would not be blogging on it). However, I am willing to bet that the defense is not that the killing of Urel Duncan was a good thing. Therefore, the sympathy sought by the prosecution is truly irrelevant.

Apparently, a prior jury saw through similar theatrics in the previous trial. When a jury is deadlocked, it means that they could not come up with a unanimous decision. In a criminal case, all jurors must agree of a verdict in order for a verdict to be rendered. Under the law, if even one juror disagrees with all the others, and the jurors cannot work it out, the jury is deadlocked and the trial is called a “mistrial”.

Therefore, we know that some of the jurors last time were convinced of the Defendant’s guilt beyond a reasonable doubt and others were not.

What will happen this time is unknown. However, you can be sure that if there are experienced criminal trial attorneys on both sides, that many issues, permissible and non, will be considered by the jurors.

“Sam…are you saying that the jury will not decide the case on the evidence and the law as the judge gives it?”

Well, that is what they are instructed to do by the court. But what will the jury base its decision on?

Check out tomorrow’s blog to find out.

In the meantime, if you are being charged with a crime and would like to challenge the prosecution to a trial, make sure you have an experienced defense attorney on your side. If you would like to see if I fit the bill for you, please free to call me at 617-492-3000 to arrange a free initial consultation..

To view the article upon which this blog is based, please go to http://www.bostonherald.com/news/regional/view.bg?articleid=1344033&srvc=rss

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