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 STATE TROOPER SHOOTS 66-YEAR-OLD NORTON MA WOMAN

Hello and happy new year. Yes, the (attempted) daily Boston Criminal Lawyer Blog is back!

I hope you had a great holiday season. For some, however, it did not end so smoothly. Let’s look to Norton, Massachusetts, for one such tale. It’s results may surprise you.

At approximately 5pm on Saturday, New Year’s Eve, a 66-year-old woman was walking her two dogs. In the same southeast MA location, an off-duty state trooper was hunting deer.

The trooper mistook the dogs for deer.

So he shot the woman. She was hit in the torso.

The trooper called 911 after realizing the error; he had mistaken the trails of the two dogs for that of one deer.

While we know the woman was brought to a Rhode Island hospital, no further information about her has been released. The state police apparently performed an investigation which lasted about one day, when they announced the shooting was an accident. The trooper’s information has also been withheld because he faces no Criminal charges.

Attorney Sam’s Take On Accidental Shooting Investigations

Do you think that you would receive such a swift benefit of the doubt if you were in the the trooper’s predicament?

Last month, we discussed how what used to be considered accidents and civil matters are now being prosecuted as crimes. Not here though. It was already released that criminal charges are not expected.

“Why does that strike you as ‘interesting’, Sam? Surely you do not believe that the officer intentionally shot the woman.”


Well, let’s look at the definition of “intentional” that prosecutors employ when deciding to take a matter to court. Usually, it is whether the accused intended to perform the actual act that ended up resulting in the unfortunate result. For example, in a vehicular homicide matter, it is understood that the driver did not necessarily mean to even hit someone, let alone kill them. However, the acts that led up to the collision were intentional. For example, if the driver is drunk, then drinking and driving were the intentional act. The same if the driver was driving in such a way so as to endanger others.

If someone fires a gun up in the air, or into what they believe is an abandoned building, and the bullet kills someone, it is a Massachusetts homicide.

In this case, the firing of the gun was the intentional act.

The fact the result was an accident, in itself, that the trooper did not mean to hit the woman does not, in itself, mean that no crime was committed. After all, there are at least the possibilities of some kind of criminal negligence as we have been discussing.

At least, that is the way it goes in typical scenarios.

But, then again, these are not typical circumstances, are they?

First of all, the shooter was engaged in a lawful activity. That is, I am assuming that he was licensed to hunt deer and the shooting took place at an area wherein it was lawful to do so. We know that he had a license to carry because he is a state trooper.

Let’s look at that factor for a moment, because I would suggest that it is the crux of the issue. We give law enforcement officers the benefit of the doubt in various ways. This is partially because they are trained in all the various skills that a successful officer needs to master. Among these areas is the proper use of firearms, special powers of observation (about which they will regale you when they take the stand in a criminal case) and aim.

To paraphrase the Spider-man movies, with great privilege should come great responsibility.

Anybody other than me troubled by this trooper’s performance in these areas?

The trooper apparently mistook the two dogs for one deer because of the foot trails they had left behind. Interesting. No mention of the fact that the dual set of dog prints were accompanied by human prints as well… unless the 66-year-old woman had the ability to hover above the earth.

Is the belief that there are one set of deer footprints, along with the sight of two animals (without a clear sight) enough to lawfully fire away at that not-clearly-viewed and unknown number of living things? Let’s take that question alittle further, because the trooper did not shoot the dogs…he hit the human being who was with them.

Did I mention that this was New Year’s Eve?

“So, what is the point, Sam? That the trooper should be prosecuted?”

Maybe…maybe not. But I would venture to suggest that had the shooter been someone other than a police officer, there would at least be a fuller criminal investigation. In this case, with these facts, it apparently took less than 24 hours (during a holiday, yet) to determine and announce that there will be no criminal action.

Don’t assume that you would be quite that lucky. If in a similar circumstance, get an experienced criminal defense attorney.

Fast!

POSTCRIPT: An interesting note. The above was based upon this article as it appeared this morning. Since then, the Commonwealth has apparently changed its mind and extended the investigation.

To view the original story upon which today’s blog has been based, please go to http://www.boston.com/news/local/massachusetts/articles/2012/01/01/hunting_mass_trooper_accidentally_shoots_woman/

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