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.

FELONY LARCENY CHARGES ARE DISMISSED DUE TO COMMONWEALTH’S GRAND JURY ERROR

Grand juries meet in private… Except for the prosecution of course. No judge, no defense attorney and no defendant. I would imagine you could almost quote by heart at this point the saying that “a prosecutor could indict a ham sandwich”.

Different jurisdictions have different procedures which take place after there is an indictment to be sure that there was a legal basis for the indictment. In Massachusetts, grand jury minutes are given to defense counsel as early as possible so that the minutes can be reviewed. This is actually different from some other jurisdictions where the grand jury minutes are only given to the defense just before trial.

Incidentally, it is the prosecutor who tells the grand jury the law for the grand jury is to consider when considering an indictment. The minutes of that instruction, called “the charge”, are not routinely given to the defense.

In any event, an experienced criminal defense attorney knows how important the grand jury minutes are. There are a number of problems which could exist in the grand jury presentation which could lead to the dismissal of the indictment and the underlying charges.

An example of this just played out last week. A Hampshire Superior Court judge dismissed larceny charges against Nancy Whitley (hereinafter, the “defendant”), ruling that the prosecution had failed to provide a police interview recording of the Defendant to the grand jury that indicted her.

The Defendant and her ex-wife, Heather, hoped to develop a condominium project for elderly gay people in Easthampton. The 86-unit complex, called “Paradise One”, was to be located in a former mill building at 15 Cottage Street. Unfortunately, financing never materialized and so it never built.

However, the money that prospective customers had given them for deposits never returned.

They were each charged with three counts of larceny over $250. Heather Whitley was convicted in 2010 and sentenced to 10 years probation. She also has to make restitution in the amount of $120,000 as one of her probation conditions.

The Defendant’s case continues. Her attorney argued that the indictment should be dismissed because the evidence presented to the grand jury was insufficient to establish probable cause, that it was unfair and misleading, and that the prosecution has not brought his client to trial within a year.

The last named motion is known as a “speedy trial” motion. It does not involve the grand jury minutes and so will not be discussed in this posting.

In her ruling, which was handed down Wednesday, the court rejected the argument that the grand jury evidence was insufficient, but agreed that the prosecution should have show the jurors an interview between the Defendant and Easthampton police. In the interview, Superior Court Judge Rup wrote that the Defendant explained the background of the project and told the police she was shocked to hear that there was no money left in the escrow fund after Heather had left her. Heather, she said, told her she had used the money for expenses.

The court dismissed the indictment against the Defendant.

Attorney Sam’s Take On Grand Jury Presentations

“So does this mean the Defendant’s problems are over, Sam?”

No. Most likely, the indictment was dismissed “without prejudice”. This means that the prosecution can invite her again… This time showing the recording.

“Why would showing the recording have mattered?”

There are various tests that the court’s use when examining grand jury minutes. One of them is whether or not available exculpatory evidence was shown to the grand jury and whether such evidence, if it had been, would have made a difference. In this case,there was apparently an argument that had the grand jury seen the video, they might not have indicted the defendant.

Generally, the burdens on the Commonwealth when presenting a case to the grand jury are not particularly difficult. The rules of evidence do not apply to such presentations. Hearsay can be used. That means that in many cases, where there are civilian witnesses, they may never appear before the grand jury because the prosecution might have decided to simply have an officer testify as to what was reported to him or her. This, of course, cannot be done at trial, but grand jury presentation Is nowhere near a trial.

It is completely the prosecutors tool to bring felony, in this case larceny, charges.

The only realistic challenge to how a matter is presented to a grand jury is defense counsel when the minutes of the presentation are handed over to the defense.

Assuming, that is, that defense counsel is experienced and knows what to do with it.

full story upon which this blog is based, please go to: http://www.masslive.com/news/index.ssf/2015/02/northampton_judge_dismisses_la.html#incart_related_stories

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