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.

A TRIAL OF THE DORCHESTER MAN FACING GUN CHARGES AND ASSAULT AND BATTERY OF A POLICE OFFICER AFTER ROUTINE TRAFFIC STOP.?

Yesterday, we began a discussion about Dorchester’s Calvin Horne, 26, (hereinafter, the “Defendant”).

The Defendant stands accused of assaulting policemen and being in possession of a gun and drugs. The witnesses against him seem to be law enforcement officers. He also already had a pending drug case and he has a rather long criminal record. Should he testify, the Commonwealth will likely be able to reveal his criminal record to the jury.

Can the Defendant’s attorney mount a viable defense in this case?

Attorney Sam’s Take On Triable Issues

As I mentioned yesterday, I have no other knowledge about this case than you do at this point. I am sure that there are facts of which I am unaware that will help…and others that will hurt….the defense. Further, I am not claiming that these ideas, if employed, would absolutely bring a defendant’s verdict. As I have told you before, if you ever catch a trial attorney, civil or criminal, promising a particular result at trial…run as fast as you can in the opposite direction.

Criminal trials, like civil trials, are influenced not only by the facts and the laws at issue, but the human beings in the mix. The defense attorney. The prosecutor. The Judge. The Jury.

It is not static. There are too many moving and inconsistent parts. No guarantee can be made.

However, after trying so many cases in over a quarter century, one gets a feel for what is likely to be successful. At least…likely enough to stand a chance. Enough for the case to be triable.

And I think this case seems triable.

Whenever possible, I avoid calling police officers actual liars. If it seems as though their testimony and the truth have parted ways, I prefer to demonstrate that fact and let the jury decide whether the witnesses are making mistakes or are lying. The fact is that most people simply do not want to believe that a police officer would actually take the stand and not tell the truth.

In this case, credibility of the police officers is clearly key. In fact, the testimony of the original police officers, who pulled the car over, are even important before any trial. It would seem that a motion to suppress evidence may be crucial in this case.

If the police did not have the right to pull the car over and then head back to their vehicle, then everything which results may have to be thrown out….including assault and battery charges. That would mean a dismissal. Therefore, one of the first things to examine is the stated “traffic violation” for which the car was stopped.

Already, a couple of the stated facts strike me as curious. First of all, the police officer knew the Defendant. So, when did he realize that…before or after the stop? Was simply recognizing the Defendant driving give him the real reason to pull him over and try his luck? Secondly, the claim that the officer was now going back to run the license plate. This could have been, and often is, done before the car is stopped…to see if it is stolen. The reason to grab the license and registration from the driver is primarily to check on the driver (as well as double-check) the vehicle) for his or her status. Obviously, part of any hearing would be to test the validity of any claim that there was a legitimate reason for the stop.

“If there was no legitimate reason, the case gets dismissed?”

Yes…but it is important to remember that judge’s are extremely reluctant to rule so that a case like this is dismissed. In fact, under the law, they are supposed to weigh the evidence in the light most favorable to the prosecution.

“So, if it is not going to be dismissed, what good is showing that the stop should not have been made?”

Obviously, the officers would take the stand with the claim that the stop was appropriate. Any change in the testimony during cross-examination would mean inconsistent statements. Inconsistent statements often mean lies. Should the case not be dismissed, use of the transcript when the case goes to trial would be very strong evidence to use on behalf of the Defendant at trial.

Remember, if the police officers in this case are not credible, then the case should result in an acquittal because the jurors could not believe their testimony beyond a reasonable doubt.

“But, Sam, there ended up being more officers at the scene fighting with the Defendant than those two. You are saying that they are all lying?”

I don’t know that I would have to. Those officers arrived at the scene in mid-fight. They do not know how it happened. I do not know how the Defendant says it happened, but it may be that the officers actually began the altercation and, when they started getting the worse out of it, they called for the back-up.

Which, by the way, leads to another interesting question. With the various armaments the officers carry…why was it impossible for the two officers to subdue the Defendant?

And that is really where it begins. There are other questions worth looking into as well. For example, did the cruiser in which the original officers drove have a camera on it like some do? If so, was this captured on tape? Probably not. Whynot?

One final thing to mention is that, while placing a client on the stand, particularly when he has a criminal record, is a very risky thing to do…it is not necessarily prohibitive. In this case, since the officer in the beginning of the case recognized the Defendant, the jury may already hear of his past. In fact, perhaps that past contains a motive for the officer to want to “screw with” him.

The bottom line is that nothing is absolute. Not in a criminal trial. This is why a defendant should decide how to proceed in terms of counsel with a great deal of thought. It is why I recommend someone with a great deal of experience who will not be limited by the “usual rules” when those rules do not apply.

But then again, maybe I am biased.

For the original story upon which this blog was based, please go to http://www.boston.com/2012/09/14/dorchester-man-tries-grab-boston-police-officer-gun-during-arrest/WgeR2IFfEq4ytJO4ZRLLbN/story.html

Contact Information