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.

ATTORNEY SAM’S TAKE ON PROSECUTION FOR THE PARTICIPATING IN AND ENCOURAGING OF CRIMINAL ACTIVITY

When we left off in my last blog, I told you that there were various issues worth discussing in the case of Timothy Cyckowski, the, now, 19-year-old male from Saugus who has been charged and convicted for activities involving recording, displaying and encouraging a sexual assault of a drunk minor.

Certain aspects of the case will come as no surprise to any regular reader of this blog.

As you no doubt remember, creating any photograph or video depicting sexual acts, or nudity, involving someone under the age of 18 (even if the activity depicted does not involve an assault) is illegal. It is the creation of child pornography. Possessing the material is possession of child pornography and disseminating it is the dissemination of child pornography.

All very serious charges in their own right.

In this case, the girl involved was not only a juvenile, but was also very intoxicated. This means that there were two reasons why, by law, she was unable to consent to the sex. Finally, according to the allegations, there was no pretense that she did factually consent. In fact, she almost died from the experience.

Ironically, it was because of the dissemination that the girl was found when she was.

No, he does not get credit for that; it was apparently an unintended consequence.

“Sam, why are the various defendants charged with the same or similar charges…especially if they are accused of doing different things?”

If the prosecution contends that a group of people were acting jointly in the commission of a crime, it usually allege that there was a conspiracy between said actors. Each person may have performed a different role, but the allegation is that they acted jointly toward a particular criminal goal. Each person is held accountable for the co-conspirator’s actions.

In this case, the action of the sexual assault.

“But there is no indication that the Defendant even touched the girl.”

He did not have to.

If he was encouraging the assault and assisting in the production of the video thereof, it can be enough to tie him in with the others who did touch her.

“Why would cheering them on be criminal? I mean, sure, it would be repugnant and all… but what about the First Amendment right to free speech?”

That right is not absolute. For example, if you yell out “Fire!” in a crowded room and everyone stampeded out in fear, You would probably be held liable for the resulting damage to life and limb.

I do not have any “inside information” about this case. I am in no way involved. However, I note a difference in the viciousness of the Commonwealth’s words between the dangerousness hearing and the statements after the plea.

Given that the other defendants were adults and actually are alleged to have performed the assault, it may be that a plea deal was struck which could require the Defendant to testify against them. It happens quite often…albeit not in every case.

Lastly, let’s spend a moment on the Defendant’s dad.

It is natural to want to help your kid when he is in trouble. However, some things that come naturally remain illegal. While there are certain steps available to the father to protect his son, misleading the officers was not among them.

What he did allegedly included providing false information to law enforcement, otherwise strangely known as “witness intimidation”. This is a felony.

He also sought to mislead law enforcement, according to the Commonwealth, by destroying evidence.

This type of thing…again while being somewhat natural…is taken very seriously. You simply have to look at the fate of some of the “Boston Marathon Bomber”’s friends to know that.

“Well, what was he supposed to do? Just hand his son right over?”

He could have refused to speak to the officer. We have discussed this issue many times, yet it remains unclear to many people. While you do not have to agree to be interviewed during these instances, you can not lie to law enforcement or you can find yourself facing felony charges and, maybe, behind bars.

No matter how sympathetic the circumstances.

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