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 BOSTON CRIMINAL LAWYER EXPOSES THE TRUTH ABOUT MASSACHUSETTS DOMESTIC VIOLENCE, BAIL AND DANGEROUSNESS HEARINGS

Ok, I have to admit up front. I do not watch this program or read this chat… Whichever it is. I do not know whether these names are real or not. I don’t know if they were chosen or merely unfortunate occurrences for the name holders. I do, however, know that they are part of the criminal justice media circus about which we were in the middle of discussing.

It was apparently something called a “Throwdown news chat” in which people were discussing the issues of the day. These issues, naturally, included domestic violence and Middlesex District Attorney Marion T Ryan. Specifically, the debate was about the murder of Jennifer Martel and the fact that the man accused of doing it, Jared Remi, was free and able to do it.

“Yes, she should resign,” someone named “Fanns” said during yesterday’s Throwdown news chat. “With his violent record she should have held a dangerousness hearing and asked for bail, if she did, that poor woman may still be alive.”

“Marian Ryan should resign,” responded an entity calling itself “bobbyknopp”. “This tragedy was preventable, and someone dropped the ball, and ultimately she is responsible.”

“You can’t rely on the woman to press charges out of fear or feeling sorry for him,” “Yvette “said.

Attorney Sam’s Take On Domestic Violence Theatrics

I suppose I could save the criminal justice system, various politicians and perhaps a few “Throwdown” folks a lot of time and money. That is, if what they really wanted was the reality of the matter. I have to confess right here, though, I tend to doubt that. However, Let’s take care of the issue of bail right now. It is really pretty simple. The purpose of bail is solely to ensure the defendant’s return. Therefore, with the exception of a potential, albeit weak, argument that the defendant’s repeated arrests indicate a disrespect for the court and so unlikelihood to return to court, bail has absolutely nothing to do with this situation. This is particularly true if the defendant, in all his cases, has a nasty habit of showing up in court. So let’s give the word “bail” a break so that we can push it to illogical extensions another day. Which, by the way, I am sure that we will.

Similar to “Fanns” confused attempt mentioned above, the issue is whether or not the Commonwealth should have requested a dangerousness hearing to hold the defendant without any bail whatsoever. Given the reported concerns of the criminal justice system and the presumption of innocence, you might imagine that this would be a pretty extraordinary thing to do. Unfortunately, reality living in a faraway galaxy from the ideas underlying our judicial system, you would be wrong. In fact, I have seen dangerousness hearings take place, and won by the Commonwealth, in much weaker circumstances than this one. While one never knows what a judge will do, the legal term most likely appropriate here would be “slam dunk”.

The tool of a dangerousness hearing is not particularly new. Nor is it a mind numbing idea. It certainly does not necessitate a district attorney, her entire office plus the help of two senior district attorneys to figure out what to do with it. That is, unless someone was going to bring in the other side of the occasion, namely is it the right thing to do in certain cases When the defendant may not be guilty and, if it ends up being shown that the defendant was not guilty, the prosecutorial view of the accused to just spend time in jail is “well he’s getting out now. No harm. No foul.”

And I think it is safe money to bet that that is not going to enter into this prosecutorial/media debate.

“But Sam, what about the fact that prosecutors are consistently met with victims of domestic violence who, out of fear or battered spouse syndrome, say they do not want to press charges?”

I will give you two answers to that question. The first answer addresses the political-face-to-the-media response. That response is along the lines of “Oh, yes! That is a real problem. Because, above all, we want to be sensitive to the victim who has already gone through so much. We sometimes, though, have to assume that each and every victim, particularly if they are female, do not know their own mind because they must be full of fear and Are suffering from battered spouse syndrome.” Actually, I must confess, that would not be the actual words they would use.

Politicians a much better with words then I am in, after all, the truth of that position does not sound like it would be very popular. And a politician must seek to be popular. That’s the bottom-line.

The other answer is more reflective of reality. If put into honest words, the answer would likely be, “We ignore what the so-called victim wants all the time. We make our own determination as to bail, bail conditions what dangerousness hearing we are going to have. We make this decision based upon our office policy and what might happen in the media the next day should things go wrong. In fact, in cases where a victim wants to drop charges or want the abuser back home, we typically don’t even speak to them, but tell them we will get back to them at some later date. Which will never get here.”

So let this long time Boston criminal lawyer give you the bottom line here and what the truth is. The issue that all the prosecutorial king’s horses and kings men are now huddled about trying to answer is how to help this particular district attorney get out of this media sideshow which cannot possibly be good for her political future. That is today’s law enforcement Humpty Dumpty.

The fact is very simple here. Show they or shouldn’t they have requested a dangerousness hearing in this case? It would certainly seem like the answer in this case is “yes”. Believe me, as a defense attorney, it’s not something I like to say. But, if there is any case where a defendant should have been held on the dangerousness hearing, this would be it.

There, and I’m not even charging the Commonwealth a dime.

But that’s not really the issue for us here, is it? The real question is how this whole debacle affects you.

If you are one of my regular readers, you know the answer. Cases in which there’s any question of whether someone should be held, will now result in the defendant being held. Certainly in domestic violence cases, the mere allegation is likely to become enough evidence to hold someone without bail. While domestic violence cases have a history of being ignored long-ago, that pendulum has swung way over to the other side. People know this. Therefore, there are many cases where one person brings such a charge against another to use as a sword to accomplish other purposes.

You would be surprised to learn what people are willing to do to not go to jail or to get out of jail.

The political solution is always to be “more harsh on crime”. This is done on a general basis. Therefore, if you even suspect that you may be facing such an accusation against you or someone you love, you would be an absolute fool not to engage the services of an experienced criminal defense attorney at the earliest possible moment.

“But what if that is expensive?”

Consider how expensive being held in jail without bail for any amount of time will be to you, your job and your family. You do your own math. As I’ve often said, math and I do not get along.

In the meantime, have a great, safe and law-abiding weekend!

For the original story upon which this blog is based, please go to – http://bostonherald.com/news_opinion/local_coverage/2013/08/throwdown_referendum_on_da_marian_ryan#sthash.OtloZCF5.dpuf
 

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