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.

MAN CHARGED WITH ATTEMPTED MURDER IS RELEASED ON BAIL AND WITH GPS BRACELET

As I Mentioned in my last post, I will be discussing an attempted murder case where we recently obtained a not guilty. In today’s blog, I will be discussing our client’s arrest, arraignment and the subsequent dangerousness hearing that was held prior to his release. For a recap of the facts please see my last blog. As a reminder, any and all identifying information (names, dates, locations, etc.) will be altered to protect the identity of our clients.

The same day the complainant made the report to the police (a Thursday), the police went to the home of the defendant and arrested him. After he was booked, he was held until the next morning, where he was transported to District Court. Having no time to hire private counsel, the court appointed the defendant a public defender for the purposes of the arraignment only. Due to the nature of the allegations, the Commonwealth requested that he be held without bail over the weekend and that a Dangerousness Hearing be held the following Monday to determine if the court should hold him during the pendency of the case without bail.

Massachusetts General Laws c. 276, § 58A allows a judge to detain a defendant without bail if he or she finds by clear and convincing evidence that the defendant will pose a danger if released. The factors the court will consider at the dangerousness hearing are:

  • the nature and seriousness of the danger posed to a person or the community;
  • the nature and circumstances of the alleged offense;
  • the potential penalty the defendant faces if convicted;
  • the defendant’s history of mental illness;
  • the defendant’s reputation;
  • the risk that the defendant will obstruct justice or intimidate witnesses;
  • the defendant’s record of convictions;
  • whether the alleged acts involve “abuse” as defined in G.L. c. 209A; and
  • the defendant’s history of violations of restraining orders.

While a dangerousness hearing can negatively impact the defendant’s case if the Commonwealth is successful, it is great opportunity for defense counsel to be able to cross-examine the Commonwealth’s witnesses very early on in the case. This testimony can be a huge help down the road if the case were to make it to trial.

During the hearing, the Commonwealth presented testimony from the Detective who first spoke with the complainant about the alleged abuse. He testified that the complainant had reported to him that her husband had grabbed her with both hands around the neck, and held her in a strangulation hold for a few seconds before letting go. She also stated that he had told her the next morning that “he should have finished the job.” He also testified that she then reported that almost a year ago, he had done the same thing but that he asserted enough pressure where she lost consciousness. The detective further testified that throughout the interview the victim seemed very nervous, tense and upset.

The defendant had no prior conviction, never had a restraining order, and there was no evidence of any type of reputation or history of mental illness. The Commonwealth’s main argument was that the defendant, based on the allegations from the complainant, posed a serious danger to the complainant. This danger was more than just the threat of physical violence. The Commonwealth’s main concern, as in many domestic violence cases, is that if the defendant is out of custody while the case is pending, he will intimidate the complainant into not cooperating with the prosecution. Unless there were other witnesses to the abuse, the Commonwealth will be unable to present any direct evidence that the abuse occurred without the testimony of the complainant. In addition, the Commonwealth argued that the defendant faced a possible life sentence with the attempted murder charge.

Our main argument was that the Commonwealth failed to show by clear and convincing evidence that the defendant posed a danger. Absent any criminal history, the commonwealth’s argument rested solely with the complainant. At the time of the arraignment, she was already on our side. She had stated to the Detective, and it was brought out during cross-examination, that she did not want him to be arrested. In addition, during my cross-examination of the officer, I was able to get out that while the complainant seemed nervous and upset during her interview, he did not observe any physical markings that corroborated her story. He also testified that while making the report, while she was nervous and upset, she did not seem excited(While this was not extremely relevant for the purpose of the hearing, this piece of testimony was crucial to the defense down the road). I further argued that the most serious allegations happened over a year ago and clearly the complainant is alive and more importantly in the courtroom to support her husband.

After the hearing the judge found that the defendant did not pose any danger serious enough to warrant pre-trial detention. The judge did, however, find that the defendant still posed a risk if he was released without supervision. The defendant was released on $2,500.00 bail and ordered to wear a GPS bracelet to track his whereabouts and make sure that he did not have any contact with the complainant.

We met the defendant for the first time before the dangerousness hearing while he was still in lock-up. We were given the police report and an opportunity to speak with the defendant before the hearing. That is it. One of the hardest issues with a dangerousness/bail hearing is putting together your argument in such a short amount of time. Fortunately for us, and our client, we will able to present an argument that not only got him released but put him in a great position for the upcoming trial. On my next blog, I will discuss why having the Detective say “she was not excited” when she was making the report might have saved our client from a guilty and a prison sentence.

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