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.

DEFENDANT’S NAME NOT CLEARED IN DISMISSED NORTH END SEXUAL ASSAULT CASE

Today, on the Boston Herald website, Bob McGovern has posted a column entitled “Full Court Press: ‘Nolle’ process feels inadequate to innocent”. It is well worth reading and reflects a part of the message which this blog has long been trying to convey.

He tells about Ross Currier, a 26-year-old man who was charged with a recent North End sexual assault. It turns out that, after going through the hell of the kind years can be stripped from your life whatever the result, the Commonwealth said “never mind.” The Commonwealth, apparently realizing that they had the wrong man, issued a “nolle pross”.

A “nolle pross” is basically a dismissal…for now. It is actually a vehicle by which the Commonwealth seems to turn back time and simply withdraws the prosecution. The resulting dismissal is “without prejudice”. This means that the charges can be brought again any time in the future, so long as the statute of limitations has not passed.

Don’t worry, though. In most cases of this kind, that is only 15 years worth of waiting for the judicial hammer to fall. Under certain circumstances, it turns out to be longer.

Mr. McGovern’s article expresses surprise that, in a case wherein the Commonwealth agrees it has no basis to prosecute, there is nothing more done to make the innocent criminal defendant whole.

Mr. Currier was frustrated and confused when he could not even get an apology. He may be one of those people who was taught that one apologizes when one makes a mistake that effects someone negatively. Nice thought…prosecutions don’t really go for it though.

Various defense attorneys explained that, although it is not a “cure all”, it is better for a defendant to accept it rather than proceed toward trial. Why roll the dice when a dismissal is possible? We are, after all, talking about a human life here.

Not that the prosecution seems to realize that.

“When we have a case and we know there’s no good-faith basis to prosecute, we nolle pross then and there rather than dragging it out to the next court date or two court dates further so that defense attorneys could join in a motion,” explained Suffolk District Attorney spokesman Jake Wark.

There you have the office of the District Attorney, who’s duty it is to “do justice” telling you that when they have a case with no good faith basis…the defendant better just take what we give him. And, considering what we have put him through by mistake…it is sickeningly little.

Mr. McGovern, you have no idea.

Attorney Sam’s Take On “No Harm, No Foul”

We have discussed many times what it is like to be dragged into the criminal justice system as a criminal defendant. The truth is, though, as many clients have told me, words cannot fully describe the experience.

In cases of sexual assault, of course, the horror is especially intense.

“Why is that?”

Well, let’s look at that question in more detail on my next posting. I think it is worth it so that anyone who either is or will be accused can be more prepared.

In the meantime, let’s remind ourselves on what happens next in a case like that of Mr. Currier. For the moment, let’s ignore the money spent on a defense attorney, incarceration, loss of job and relationships and the tremendous panic that he has already gone through. His case has now been “nolle prossed”. No more criminal charges (for now). Time is turned back and all damage to him is undone, right?

Not exactly.

He was arraigned. This means that the charge of indecent assault and battery is on his record. There it will remain unless and until he hires counsel to request that the court seal his record. Of course, if he has any prior record, or the judge decides against it, the charge will remain there.

“So what? He was never convicted. It cannot be used against him.”

Well, that would be true if we truly observed a presumption of innocence. These days, most job applications require the applicant to give permission to let the potential employer look at his record. Similarly if he is applying for higher education.

You might be surprised at how many such schools and jobs will decide to hire someone without any such a charge associated with his background over someone who does…regardless of the dismissal.

In cases like Mr. Currier’s, there is often media interest when a suspect is charged. In fact, often, the resulting news stories read like it is a forgone conclusion that the suspect is, indeed, guilty. They also often list the suspect’s home address. Yet, when the case is thereafter dismissed, there is no such media splash.

Mr. Currier’s background remains stained by the criminal charge. How many people will look at him sideways now wondering if he simply just “beat the case” instead of truly being innocent.

And, speaking of innocence, note that the Commonwealth does not proclaim Mr. Currier, or anyone, actually “innocent”. To hear the prosecution tell the tale, they simply were unable to build a case…yet.

Basically, innocent or guilty, the defendant is seen as “lucky”. He is not going to jail. If he had been held on heavy bail, he now gets out. As far as the Commonwealth and most participants in the criminal justice system are concerned, it is a case of “no harm, no foul.”

Mr. McGovern’s piece is an important one. It is a good article. Unfortunately, the situation is even worse than he reflects.

That is why this blog is here to remind you…to try to get the word out…before it is your turn to take the place of Mr. Currier.

For the original story upon which this blog was based, please go to http://bostonherald.com/news_opinion/columnists/2014/04/full_court_press_nolle_process_feels_inadequate_to_innocent .

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