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.

BOSTON’S SUPREME JUDICIAL COURT UPHOLDS PREVIOUS RULING AND REVERSES GUN CONVICTION

As you have learned from reading this daily Boston Criminal Lawyer Blog, criminal laws are getting more and more complex. Changes in the laws take place all the time. This is but one of the reasons that I urge you to retain the advice and aid of an experienced criminal defense attorney when you find yourself an unwilling guest in the Halls of Justice…or, better yet, before you even enter the door.

Let’s take a crime of possession for example. In Massachusetts, not so long ago, the Commonwealth could present evidence that a gun is operable or that illegal drugs are present simply by submitting a certification from and expert into evidence. Nobody had to testify. Just the paper saying either the gun was operable or that what the police believed was cocaine was, indeed, cocaine.

Have you ever tried to cross examine a piece of paper? It is very difficult to do.

Finally, the courts ruled that a witness needs to testify to authenticate the document and answer questions about it. This is because a criminal defendant has the right to confront witnesses against him or her. How do you confront a piece of paper? Let alone the hearsay objections…!

This was a pretty major change in the law and has shaken up a number of criminal prosecutions. One such case was Commonwealth v. Barbosa, and it was handed down by Boston’s Supreme Judicial Court on Tuesday. In that case, the defendant was convicted of possession of a variety of things he was not supposed to have. He had a gun, he had ammunition and he had marihuana. Of course, what he did not have was a license to have any of it. The defendant appealed arguing, among other things, that the Commonwealth should not have been able to rely on simply submitting the certificate on the gun without a live witness. Further, the defendant argued that the fact that the Commonwealth was allowed to do so deprived him of his right to a fair trial. In other words, it was not a “harmless error”.

The SJC agreed.

Citing the earlier holding in Melendez-Diaz v. Massachusetts, the court held that because of the import of the certificate of examination, the evidence that showed the gun was operable, to the overall prosecution, this could not be considered “harmless” and so the conviction for the gun possession had to be reversed.

Attorney Sam’s Take On The Need For Experienced Criminal Defense Attorneys

Let’s take a scenario.

Billy Bullets has been arrested for possession of a firearm without a license. This being a new nightmare for the family, they contact the only lawyer they know…Timothy Torts. Attorney Torts has represented members of the family for years in their various civil law suits. He specializes in personal injury lawsuits by the way, although he has never been able to beat the good folks at Altman & Altman LLP. They are just too good.

In any case, as a favor, Attorney Torts remembers that he handled a case similar to this about twenty years ago. Being a seasoned professional, he figures he can handle this simple gun case. He gives them a real bargain.

Attorney Torts may be a whiz in personal injury suits…but he has no recent experience in the criminal realm. What is more…he is unaware of the change in the law. After all, the very reason he is giving the family a break on the fee is that it is …s simple gun case.

The case goes to trial. The police claim they found the gun in Billy’s pocket during what the court has held to be a Constitutionally acceptable search. Attorney Torts cross-examines the officers vigorously, accusing them of planting the gun. The Commonwealth then submits the certification for the gun into evidence without a witness and rests its case.

The jury comes back with a guilty finding in one hour. It seems the ol’ “cops planted the gun” argument does not work as well as it did in the old days.

Attorney Torts did not realize that, without a live witness, he could have prevented the certification on the gun from being admitted into evidence. No certification…no evidence that the gun was even operable…no conviction
.

“But, Sam, couldn’t the family now take the money they saved in not hiring a more expensive trial attorney and get a really good appellate attorney to get the conviction thrown out?”

Sorry, but no. You see, Attorney Torts did not know enough to object to the piece of paper being submitted into evidence. Years ago, the Commonwealth was allowed to do that.

Because Attorney Torts did not object, he not only did not win the case right there for the client, he also waived his client’s right to appeal that issue.

You see, appeals are predicated on issues of law. These have to be legal issues that were raised at the trial level. Since Attorney Torts did not object, he never raised the issue and so Billy cannot appeal that issue.

“So…is Billy without hope?”

There is always hope. It would appear that there may be an argument that his attorney, the esteemed Attorney Torts, was not competent in his representation of Billy. That can be a ground for the appeal, although better a basis for a motion for a new trial.

Of course, that ground tends to be very difficult to present successfully.

Wouldn’t it have been easier to just pay the extra money in the beginning and give Billy the best possible shot?

At least, I think that that’s how I would look at it anyway…but, then, i have only had over 25 years experience in these trenches…!

For the original article upon which this blog is based, please go to http://law.justia.com/cases/massachusetts/supreme-court/2012/sjc-10892.html

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