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.

South Boston’s Whitey Bulger, Casey Anthony And Innocence

Blasphomy! Yet, I heard it myself on WBZ radio this morning!

Yesterday, the Casey Anthony jury in Florida shocked the nation, if not the world, by delivering a verdict of “Not Guilty” after her widely watched trial. Not guilty of killer her two-year-old daughter, Caylee. Not guilty of all the homicide counts. Guilty only of lying to investigators.

This may have surprised people…but that was not the unspeakable things to which I refer above.

The public is roaring “foul!” How could a jury listen to all the evidence as well as the law the judge told them and find the defendant not guilty of killing her daughter? After all, everybody else, who, incidently, did not have the jury’s vantage point, were convinced of her guilt! And they should know better, after all. They were mostly convinced of her guilt long before the jury was even sworn! Who are these Johnny-come-lately jurors to contridict general concensus?

Nope. Still not the misbegotten statements about which I speak.

The forbidden sentiments I heard on the radio were spoken by the prosecutor involved as well as an alternate juror in the case.

The DA said that he believed that the jury followed the evidence and the law! The alternate juror said he agreed with the verdict!

How dare they? People are comparing the verdict to the O.J. Simpson fiasco. Once again, according to uninvolved and comparatively uninformed public, the jury got it wrong. How dare the alternate juror and prosecutor suggest anything different?

To make matters worse, as everyone will tell you, the defendant may be set free after serving a mere 3 years in custody awaiting trial! How can that be the result simply because a silly little jury found her not guilty of homicide?

To add insult to injury, the defense attorney lashed out at the media after the verdict, saying, ” I hope that this is a lesson to those of you having indulged in media assassination for three years, bias, prejudice and incompetent talking heads saying what would be and how to be”.

Many believe that this criticism was aimed toward legal scholars like Nancy Grace in her television show.

Incidently, do you remember the last time there was a public outcry over a finding of “gulity“? How about the first time? Can you even think of more than one instance when that occurred?:

Attorney Sam’s Take On The Assumption Of Guilt

“Sam, weren’t you going to continue writing about Whitey Bulger and prosecutorial advantage in the courtroom today? Is there some connection between the cases, other than Whitey’s being arraigned in federal court today for alleged Massachusetts murders, about which we are unaware?”

There sure is. Those two cases and just about any other criminal matter.

I have mentioned many times that, while our system tells us that there is a “presumption of innocence”, the reality is that there is an “assumption of guilt” experienced by most criminal defendants. Unfortunately, this assumption plays a part in most, if not all, prosecutions.

I have aluded to the fact that the prosecution begins a criminal matter with a “leg up” on the defense. The government knows the specifics of its allegations and what evidence (including its strengths and weaknesses) exists. This is the setting as the defendant first goes before a judge to be advised of the pending charges.

“But, Sam, if the defendant is guilty, he/she actually knows the specifics of the crime long before the prosecution!”

Yes, but remember…we are supposed to presume the defendant innocent. You know, as in maybe he/she didn’t do it.

At this court date, the arraignment, the defendant faces the possibility of going to jail right away and wait behind bars for the government to make a showing of guilt. We also inform any defendant with any money that he or she must hire their own attorney.

Trust me, experienced criminal defense attorneys can be expensive. Now, the defendant, who may be in or out of custody is somehow supposed to come up with that money, as well as, perhaps bail money, to defend against the charges he was unaware that the government was even investigating. In the mean time, the prosecutors continue to prepare the case.

Soon, the defendant hopes, he/she will have an attorney who can start begging the government for its scraps of evidence…sometimes having to make a “good faith” showing that such evidence exists. Being not even aware of the defendant’s existence on the planet at the time the criminal investigation was initiated, counsel often cannot possibly make such a showing.

“Again, Sam…is that really so unfair? After all, the victims of the crime did not have time to plan how to react to the crime. Most likely, the crime cost the victim a great deal of strife and/or money”.

Yes, that is unfortunate. It is one of the reason we call what was done to them a crime. Surely, though, we do not aspire to the path of the perpetrator of the crime. At this point, the defendant is supposed to be presumed innocent. Therefore, to blame him/her for the event plaguing the complainant is unimaginable in our system, isn’t it?

Unimaginable or not, it is what we do. We do it because the defendant is actually assumed guilty. This is why it is ok that the defense has to start late in its investigation…and given limited access to evidence. It is why it is ok for a defendant to be in custody while the matter is pending.

It is why there are probation surrenders where probationers are sent to jail solely because they have been charged with a new crime. Whether or not the probationer is later found to be not guilty of the new charge is irrelevant.

It is also why it is ok for grandstanding prosecutors to argue that a defendant, no matter how reviled, should not be entitled to a court appointed lawyer when the government has taken his money.

You may be interested to know that The Constitution does not have an exception in its Amendments to indicate, “The foregoing, of course, does not apply if you think the accused is a really, really bad and probably guilty “.

In my experience, jurys try to follow the evidence and the law. They try to hold up what they are told about the govnerment’s burden of proof. Sometimes, they have to be courageous…such as the jury in the Anthony case. They may know that the defendant has already been convicted in the outside world’s view. However, they dare to do their job as they are told they must do it…despite the potential backlash.

We praise our judicial system and like to believe it is as fair as possible, despite its flaws. Yet, when a jury returns an unpopular verdict…we suddenly disavow it. Talking bubble-heads like Nancy Grace make a very nice living claiming that she somehow knows that the jury erred.

Of course, this outcry does not happen when a verdict is guilty. I wonder why that is.

Could it be that that’s because we assume that all criminal defendants are actually legally guilty?

Does that make sense to you?

Guess it’s a good think the framers did not put the above-mentioned “bad guy” exception into the Constitution, then, huh?

To view the article upon which this blog is based, please go to http://www.bostonherald.com/news/national/south/view.bg?articleid=1349783&srvc=rss

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