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: FRANKLIN’S DEAN COLLEGE CAMPUS DEFENDANTS (PART 2)

This is a great time to be watching the criminal justice system!

Unfortunately, with a current changeover in my office and my son’s Bar Mitzvah occurring this week, it has been difficult to keep the Boston Criminal Lawyer Blog current on a daily basis. This should change next week. Meanwhile, campus criminal matters do seem to be dominating the headlines!

Today, the misadventures of Jerry Sandusky’s lawyer seem to be big news. We last left that paragon of legal strategy when he allowed his client to make a fool of himself on national tv…all while the lawyer watched from another location unable to save his client…assuming he even recognized his client was in trouble!

For today, though, we finish our two-parter about the Dean College matter. As you will recall, this appears to be one of the few campus assaults that is not actually a sexual assault. Nope, just your garden variety Massachusetts assault and battery matter….with many, many wrinkles.

When we left off, I was asking whether, other than the obvious, there were other potential criminal defendants in the picture.

The answer, by the way, was in the affirmative.

For example, believe it or not, there is the gentleman who is the complainant in the assault allegations.

Remember that the assault was allegedly done because the assailant believed his victim had stolen his sneakers. Stealing sneakers would be a Massachusetts larceny.

“But Sam, the assault victim and others say that he did not steal the sneakers.”

Yes, well, there are often criminal defendants who claim that they did not do what they are accused of doing. Sometimes, they even have witnesses who support them. However, as the Commonwealth so often points out, that is an issue for trial.

The arrest and prosecution generally continues.

Of course, there is another truth in the criminal justice system which we have recently discussed. Namely, whoever gets to law enforcement first generally becomes the “victim” and the opposing party becomes the “defendant”. Further, whoever is damaged worse often tends to be the “victim” as well.

The translation is that, most likely, such a larceny charge will not be coming.

Of course, if such a charge did come against the assault complainant, then he would likely have a co-defendant. His roommate. After all, the roommate told the police that said theft did not take place. If he were lying, then he could be looking at the felony charge of intimidation of a witness (lying to the police).

“Well, Sam, how does the video of the fight effect all this?”

Quite a bit, actually.

First of all, it would support the charges against the assault defendant and his cheering section. It also is so graphic that it garners sympathy to the potential larceny defendant (assault complainant) so that it makes it even less likely that he will be prosecuted.

The video will also aid the prosecution of the assault defendant in other ways.

First of all, there is little chance of a self-defense claim in this matter. The video seems to be completely clear as to who is the aggressor.

Second, assuming that it helps to prevent the larceny charges from coming, it will eliminate another way out for the assault defendant. If both gentlemen were facing criminal charges arising out of their mutual accusations, the matter would be handled as cross-complaints. In such incidents, the parties each refuse to testify as complainants, claiming their right against self-incrimination (Fifth Amendment). The result? Usually, both cases are dismissed.

Here, however, this result is highly unlikely because of the video tape. First of all, the assault complainant is not even necessary at trial…the video tells the tale. Further, since there will not be any charges against the assault complainant, there will be no reason for him to plead the Fifth Amendment privilege.

So…bottom line?

Slugger and his cheering section had better round up some experienced defense attorneys for when the whip comes down.

Because it will.

Hard.

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