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.

ESSEX COUNTY COURT OFFICER IS CHARGED WITH RAPE

Surprise! I am not Ian. He will be with you next week with one of our “war stories”.

Speaking of surprises, here is a little tale from yesterday’s session in Salem Superior Court. As you know, anybody can suddenly find themselves with the sudden last name of “defendant”. Today’s example is Jose Martinez (hereinafter, naturally, the “Defendant”). This 47-year-old gentleman has been serving as a court officer in Essex County for many years.

Now, the Defendant is not putting the cuffs on another…he is wearing them himself. And will continue to do so unless and until the matter of $50,000 bail is dealt with.

The Defendant has been accused of repeatedly raping an inmate in his custody. The full roster of criminal charges include multiple counts of rape, indecent assault and battery and a count of misleading investigators. As for the sex charges, the Commonwealth says they are supported by DNA evidence.

More specifically, the Defendant is accused of sexually assaulting the female complainant three times at Lawrence District Court, once in 2009 and twice in 2014.

The Commonwealth alleges that on October 7, 2014, the Defendant escorted the inmate to a stairwell where access was limited unless a key card was swiped and raped her — “a stairwell where there would be no reason for anybody to ever take a prisoner,” argued the prosecutor.

He added the victim wiped herself off with a shirt, which was tested for DNA by the state police.

“There were sperm cells detected on one of the sleeves…The sperm cells were subject to DNA testing with a known sample provided by [the Defendant] and there was a match.”

However, defense counsel was not impressed with the DNA evidence.

“We never hid from the fact that there would be DNA in this case,” counsel said. “It is cooperative with some type of contact … Now, I don’t defend impropriety but impropriety is not a crime.” In other words, while the DNA might suggest sexual contact that is against the rules for a court officer…it does not mean that the contact was rape, which is against the law.

Defense counsel added that he had asked the Commonwealth to turn over any video of the alleged sexual contact but the purported videos were “destroyed”.

That should be an interesting issue.

Counsel also addressed the credibility of his client, whom he termed a “pillar of the community” as well as that of the complainant. He pointed out that, “The complaining witness in this case not only carries with her eight aliases, she has over a dozen dockets in Lawrence District Court and other courts in the Commonwealth of Massachusetts for drug abuse, theft, false check, prostitution.”

Prosecutors also allege that the Defendant misled authorities when he didn’t disclose he had a second cellphone that he kept hidden at the courthouse in which he asked a colleague to destroy.

While the matter is pending in Essex County, it is being prosecuted by the Suffolk County District Attorney according to the local news.

    Attorney Sam’s Take On Questionable Complainants


Well, this complainant has a certain amount of baggage which she will have to carry onto the witness stand. It might surprise you, however, to know that not only might this baggage not hurt her testimony, but the jury may not even hear all of it.

Often, matters involved in a witness’ past, particularly sexual past, are not allowed to be explored on cross-examination. Further, while a witness’ prior record may be questioned (unless the court rules otherwise), that record must be a criminal conviction. A Continuance Without a Finding or dismissed matter cannot be explored.

Further, as I am sure the Commonwealth will argue, one would expect a complainant in these circumstances to have a record. Otherwise, they would probably not have been in custody to afford the Defendant the opportunity to begin with.

On the other hand, as the defense will point out, one much consider the source of the complaint as well as the history of the Defendant (particularly if he takes the stand which he probably will).

In short, it is the epitome of the fact that anyone can be charged with a crime and anyone can be a victim.

Anyway, on another topic, we have not ironed out all the issues yet in terms of the Ian/Sam division of the blogs…but at least we are finally getting three up a week. So, you were deprived of Mr. Keefe’s genius this week.

There is always next week…!

Which brings us to my usual admonition on a Friday, wishing you a great, safe and law-abiding weekend!

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