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.

MASSACHUSETS CRIMINAL COURTS JUGGLE SANDY, MATTAPAN MURDER AND ONGOING DOMESTIC VIOLENCE CASES

Well, after a day’s absence due to a loss of power thanks to Hurricane Sandy, Attorney Sam’s Take is back to daily postings.

You might wonder, by the way, how the criminal courts, and Massachusetts crime in general, deals with such weather events. Does everything stop? Do the courts, like the police, have to remain handy in case the need arises?

As usual in criminal justice…yes and no.

This weekend, as the media basically warned us that Hurricane Sandy, the “Frankenstorm” could end life as we knew it…various businesses and agencies had to decide whether to close. Our president and local officials told us all to keep off the roads and that we would be in a state of emergency. This was good enough to keep most law-abiding citizens off the street. However, the courts are not considered among that ilk. After all, Justice never sleeps…or so they tell us.

Anyway, by Sunday night, those who were supposed to serve jury duty on Monday were called off. All non-essential government workers were also told to stay home. However, judges, court staff and attorneys who are due in court are not considered “non-essential”. Therefore, we were still on the hook. As are our clients who must also show up lest they risk a default warrant.

Finally, early Monday morning, the courts decided that they would close at noon for 24 hours, opening again today at noon.

At least one publically-watched trial was delayed due to Sandy. That would be the trial of Dwayne Moore. You remember Dwayne…he was one of two defendants who stood trial for his alleged role in the so-called “Mattapan Massacre” not so long ago. The jury acquitted the co-defendant, but could not decide what to do with Mr. Moore. The case made news again more recently when an eyewitness who said he could not identify Mr. Moore at the first trial suddenly decided that he could do so now. Apparently, the Commonwealth is willing to go with that…credibility be damned!

By the way, due to some confusion in the media, I should point out that Mr. Moore’s jury was declared hung on the charges against him. His co-defendant was acquitted. An acquittal means that there will be NO new trial as to the facts and it is not appealable by the prosecution. Had Mr. Moore been acquitted, he would not be facing a trial again. The trial against him was declared a mistrial.

Meanwhile, you may wonder why courts are expected to continue on their business unless they are absolutely not able to do so. This would be, at least partially, because there is one group who do not seem to stop working for bad weather.

That would be the alleged perpetrators of the crimes. Those to whom I prefer to refer as the “Misunderstood”.

For example, let’s look at the case of a Manchester police sergeant who was arrested in the early Saturday morning hours for domestic violence. His case got even more attention when law enforcement found a large cache of weapons during the investigation.

According to the Beverly police, they found Manchester-by-the-Sea Sergeant John Swallow outside a Beverly home. It is alleged that the complainant had had an with Swallow. The good sergeant is said to have left the room only to return with a handgun which he pointed at said complainant and a dog
The gun was apparently fired, but Sgt. Swallow said that it had discharged accidentally as he was putting it away.

I am not sure what, if any, statement he made as to the 16 handguns, 11 rifles, 8 shotguns, 4 samurai swords and large amount of ammunition that were found.

Now, Sgt. Swallow has a right to be considered for bail. Assuming he has no prior record (which is a decent assumption), it is bad enough that he has to wait throughout the weekend in custody waiting to see the judge.

And he, of course, is not alone.

And so, one would assume that Sgt. Swallow was arraigned on Monday morning instead of when the weather was completely cleared.

Which it seemingly did much earlier than expected.

But then, that’s another story.

For the original stories upon which this blog is based, please go to http://www.bostonherald.com/news/regional/view.bg?articleid=1061171109&srvc=rss and http://www.myfoxboston.com/story/19941309/2012/10/29/mattapan-massacre-trial-postponed-due-to-storm

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