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.

FALL RIVER POOL OF DEATH PROSECUTION ENDS WITH A CWOF

Do you need some more proof that times have changed in the criminal justice system? Want some more evidence that sometimes prosecutions are all about publicity?

Let’s turn to a short-lived prosecution in Fall River.

You may remember the horrific story from last year wherein it turned out that a woman was found dead in a public pool. Well, it was actually a bit worse than that. The woman was actually found quite awhile after she had died in the pool. In fact, two days had passed.

During the intermittent time? Folks swam on, unaware that they were swimming in such a morbid scene.

Of course, such are the things of which lawsuits are made. Civil actions from the family of the deceased woman. Civil lawsuits from the patrons who swam in the death-infested water. Not to mention the lawsuit from the poor souls who saw the body!

Well, the Commonwealth decided that civil lawsuits were not enough this time. The local district attorney decided that criminal charges should be brought. No, not regarding the death of the deceased…but because of the kids who swam in the water wherein the corpse lay.

On Tuesday, that criminal action ended with a whimper, not a bang. The two former Massachusetts recreation managers who had been charged with reckless endangerment of a child turned to the judge for justice.

The court was limited in what it could do. You see, it could not simply dismiss the charges even if it wanted to. What it could do, however, was allow the defendants a chance to end the case without guilty findings.

Over the Commonwealth’s objections, the defendants admitted that there were sufficient facts to find them guilty and, as a result, the matter was given a Continuance Without A Finding (“CWOF”). What this means is that the defendants will be on a probationary status for a year. If there are no problems during that year, the matter will be dismissed. If there are problems…then the matter can automatically be given a guilty finding and the defendants can be sentenced accordingly.

Gregg Miliote, a spokesman for Bristol County District Attorney Sam Sutter, said Judge Beverly Cannone rejected a request from prosecutors to find the defendants guilty and place both men on probation for two years.

After an investigation, DA Sutter declared that while the woman’s death was accidental, there existed a “systemic failure” in the pool’s operation.

“A series of poor decisions, with errors compounding errors, a disregard for regulatory requirements and a disregard for the proper standard for operating the pool pervaded multiple levels of DCR supervision and management,” Sutter wrote in his report.

Hmm…sounds like lawsuits in the making if you ask me…!

Attorney Sam’s Take On Public Pressure And CWOFs.

The Boston Criminal Lawyer Blog, in its discussion of the Massachusetts criminal justice system is based, in large part, on my opinions and my experience in the justice system for over a quarter century.

There have been a number of changes.

One of the most dangerous changes has been how good and bad publicity have become such an important part of prosecutions.

“But, Sam, what is wrong with that? Shouldn’t the justice system reflect our collective views?”

Yes and no.

Yes, to a degree, and it does as we vote in the politicians who write and pass the laws. However, although it is a political post, that is not the job of a prosecutor.

A prosecutor’s job is to do “justice”. Justice and what makes for positive headlines can be two different things. You know, it was not really so long ago that homosexual acts between consenting adults were prosecutable crimes. There also used to be laws separating blacks and whites in various gathering places.

You may be sure that a judge breaking with those laws was not a favorite in the next day’s headlines.

The legislature makes the laws…the prosecutors seek “justice” with regard to the criminal ones.

Here, it looks like another case a district attorney deciding that the public outcry about the horribly mismanaged swimming pool made for a good political opportunity. Take what would ordinarily be the stuff of civil lawsuits and treat it like a crime.

“Well, what is the difference?”

Plenty. Civil lawsuits do not put your liberty in jeopardy. Civil lawsuits do not give you a criminal record to plague you for the rest of your life.

“Well, maybe these defendants should have faced such penalties given what they did.”

What did they do? Be really negligent in cleaning the pool? The prosecution had nothing to do with the death other than the fact that the body polluted the water for two days. Such negligence has long been a basis for civil litigation…assuming, of course, there are damages suffered.

The judge in this case took the wind out of the sails of the prosecutorial boat. Well, at least to the extent that it could. A CWOF is not without its own risks. However, at the end of the day, it is not a guilty finding unless the defendants get into trouble again…which, it would seem, is not likely.

In other words, these defendants were not what one has in mind when one thinks of “criminals”. However, if a “criminal” is someone who has been convicted of a crime…then it is a “criminal” that the Commonwealth wanted to make of each defendant.

We are lucky that there are still judges around who do not blindly follow the prosecution in hopes of good publicity.

To view the original story upon which today’s blog has been based, please go to http://www.boston.com/news/local/massachusetts/articles/2012/02/07/2_mass_workers_get_probation_in_murky_pool_case_1328645894/

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