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.

THE CRIMINAL JUSTICE CLOCK IS TICKING, WHETHER THE CASE IS DRUNK DRIVING, MURDER OR EMBEZZLEMENT (Part One)

You have been charged with a crime.

You went to court, either for a Clerk Magistrate’s Hearing or for your Arraignment, without a lawyer. You figured the court would give you a lawyer and you would be home free. After all, maybe you know you did not do what they say you did. Perhaps you figure they will never be able to prove it if you did.

As you walked confidently into the courtroom, you figured, “I will just tell my side of things and this pain in my schedule will be over.”

Well, chances are, if you went to a Clerk Magistrate’s Hearing, you walked out muttering something about being “railroaded”. The Clerk listened politely to whatever the complainant had to say, although you knew that said complaint was lying badly. When you told your side of things, the Clerk simply shrugged, found probable cause and told you that you would receive notice of your Arraignment in the mail shortly.

If it was an Arraignment, some attorney you have never met before stood up on your case knowing next to nothing about either you or the allegations against you. Maybe there was a bail hearing and you are now locked up. Perhaps the judge told you that you do not qualify for court-appointed counsel and will have to either go out and hire an attorney by next time or represent yourself.

Perhaps you have now learned…you do not want to simply represent yourself.

Attorney Sam’s Take On Why There Is A Rush To Retain An Experienced Criminal Defense Attorney

If either of the scenarios above occurred, you are already a few steps behind where you could have been in your new criminal justice nightmare. The fact is that, upon learning you were being charged with a crime, you were already behind the prosecution. The prosecution had already conducted its criminal investigation and decided on the evidence against you and the charges you will face.

It will take time to get a feel for what their case is based upon, even if you have an experienced lawyer. However, you could have been as up to date as possible before you even entered the courthouse.

“Why is that, Sam? What could an attorney have done before I even had to go to court?”

Plenty. If he or she knows what they are doing and cares enough to do it.
Let’s assume that you went to court for the Clerk Magistrate’s hearing. While the standard that the Magistrate must find in order to issue a criminal complaint is quite low, there are opportunities at the hearing which might prevent the issuance of the complaint.
Remember…this is your last opportunity to prevent this prosecution before it goes on your record.

“What can be done?”

First of all, many cases, especially misdemeanors, can be worked out between the complainant and the potential defendant prior to the complaint being issued. While it is usually dangerous to try to reach out to the complainant prior to the hearing, the day of the hearing often brings the solemnity of the situation to face both sides. Sometimes, the Clerk can even help to bring about a solution.

“Couldn’t I do that without a lawyer?”

Potentially. If you knew how it all worked and the best way to approach the Clerk and the other side in court. For example, sometimes you can get a Clerk who has found probable cause to decide to hold off issuing the complaint for a few months and, if there are no further problems, throw the whole matter out?

Having an experienced defense attorney will enable you to take advantage of various opportunities about which you might not be aware.

“Can I get an attorney appointed to represent me at the Clerk Magistrate’s hearing?”

No. The court does not do that.

Can’t I try to settle the matter with the complainant after the Clerk Magistrate’s hearing? Before I have to go in for an arraignment?”

That would not be advisable. First of all, the Clerk has already authorized the complaint. The complainant is no longer the master of this prosecution. It now belongs to the prosecutor. Any attempt you make at this point will likely be seen as intimidation of a witness or a similar charge. In other words, it would simply make matters worse.

“Well, if I have already blown it by not having an attorney with me at the Clerk Magistrate’s Hearing, what good is it going to do me to hire one to represent me at the Arraignment?”

The Boston Criminal Lawyer Blog will take that up tomorrow.

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