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.

EAST BOSTON MAN IS CHARGED WITH GROPING A 9-YEAR-OLD CHILD

Yesterday, we were discussing the story of a convicted gentleman who, while charged with the possession and dissemination of child pornography, was really suspected to be about to do far worse.

While admittedly not kidnapping, killing and eating anybody, East Boston’s 39-year-old Jose Avila (hereinafter, the “Defendant”)has been charged with committing a Massachusetts indecent assault and battery already.

I think it is worth comparing the two cases.

The Defendant, you should know, “adamantly denies” the charges he now faces. He stands accused of molesting a 9-year-old girl.

In front of several witnesses.

“This incident is extremely serious,” the prosecutor argued in court, asking for bail to be set at $100,000 bail. “There is concern for the safety of children in the neighborhood because this is a random attack.”

According to the Commonwealth, the 9-year-old complainant was playing with friends on the front steps of a Faywood Avenue house when she dropped her doll’s brush which was then blown onto the street. The girl chased after the brush, saw a car coming and waited for it to pass. Prosecutors say that the Defendant got out of the car and placed one hand on the girl’s genitals, another on her buttocks and said “coochie coochie coo,” leaving the girl “visibly upset and crying.”

The incident was allegedly witnessed by several of the victim’s friends, ages 5 to 7. An adult male claims to have also seen the incident. He is said to have leaned out a third-floor window, yelled out and then ran down to the street, but the man had already driven away.

Well, at least that is what early reports about the police report stated.

Since then, the man, 45-year-old Miguel Chavez, has given a statement of his own to the press. He now says that, upon seeing the girl, his neighbor, being “fondled” outside, he actually used a pellet gun to scare off the offender…presumably the Defendant.

“I was scared he was going to take her and take my daughter,” he explained. He described seeing a man randomly grab the little girl on a street in Orient Heights. “I said ‘Drop her or I’ll shoot.’ … If it had been a real gun I would have shot him. Wouldn’t you?” Chavez said.

He went on to say that the police brought back a photo and he identified the suspect from a picture.

The showing of the photograph will no doubt be important evidence on the issue of identification. The Defendant’s attorney has already raised other questions as to the identity of the assailant. For example, witnesses apparently originally reported that the suspect was first described as a white male. The Defendant, however, is Hispanic. Further, witnesses first said that the suspect was someone who had been in the area before, but no one knew his name.

Of course, since they had the Defendant’s photograph on file somewhere, it would seem that law enforcement knew who they already thought might be the culprit.

This brings up other questions of identification and bias.

The defense asked the court to release the Defendant on his own recognizance, arguing that, among other things, he is a homeowner and has a family – including a 5-year-old daughter and a wife who is a schoolteacher.

As any regular reader of this blog knows, the fact that the Defendant now faced this type of crime meant that The Department of Children and Families became involved with the Defendant’s family, although there had been no allegation about the Defendant having assaulted his daughter. DCF is currently following up on an abuse and neglect complaint that was filed against the Defendant in response to the criminal charges now pending.

The court held the Defendant on $30,000 bail. Should he make bail, he will be placed under 24-hour house arrest, must wear a GPS tracking device and must stay away from children younger than 18, except for his daughter.

The Defendant’s next court date is October 16th. It is set for a probable cause hearing. Such hearings rarely take place anymore. The translation to reality is that the district attorney’s office is deciding whether to indict the matter and move the case from East Boston District Court to Superior Court.

Given the type of case this is, as well as the press interest it has already received, this long-time Boston criminal lawyer anticipates an indictment.

Attorney Sam’s Take On Massachusetts Sex Crimes Of Mind And Matter

At the onset, let’s be clear. The allegations facing the defendant about which we “spoke” yesterday and the Defendant are extremely serious. There is no doubt about that. However, I believe that comparing the two cases may well shed light on some important criminal justice realities about which you should be aware.

Additionally, there are already some issues which already cast a shadow of doubt on the Commonwealth’s case against the Defendant. Rather than leaving you a posting long enough to take you a day to read, let’s pick up at this point tomorrow and discuss these things.

To read the original stories upon which this blog is based, please go to http://bostonherald.com/news_opinion/local_coverage/2013/09/da_east_boston_man_groped_9_year_old and http://bostonherald.com/news_opinion/local_coverage/2013/09/dad_outraged_by_assault_on_neighbor_s_daughter

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