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.

FIVE REALITIES WHICH YOU NEED TO UNDERSTAND WHEN DEALING WITH THE MASSACHUSETTS CRIMINAL JUSTICE SYSTEM (FINALE)

Ok, so where do the last few blogs, including yesterday’s, leave us?

The point is that what you have been raised to believe , and what our political leaders would like you to believe and wonderful theories upon which our system is based  do not always translate into reality very well. Does this mean that everyone is “lying”?

No, not really. I think, to some extent ort other, we try to be in perfect sync with the theories upon which this great country was based. But we are human.

On the other hand, this is not a blog to written to debate philosophies. It is to reflect the reality of the criminal justice system to you, my readers. Therefore, as was the message in yesterday’s blog, I am trying to use the various stories over the past week to help me describe realities about which you should be aware..

You see, in my opinion, the difference between what the system calls the “good guy complainant” and the “bad guy defendant” is not very large. It often hinges on one precarious moment.

Attorney Sam’s Take On Five Realities Of Which You Should Be Aware

 

  1. “We do not incarcerate people for being poor”

We discussed a new case on this subject earlier in the week in which the Supreme Judicial Court of Massachusetts made this point. The fact is, however, that there are some crimes which will continue to be part of most homeless people’s lives. For example, there is the crime of Trespass. And, standing against the rights of the homeless to be free are the rights of a property owner.

What the law, in balancing the two interests, is saying is that if a homeless person can prove to a jury or judge the necessity of being somewhere in which he or she is otherwise not allowed, it is a valid defense to the crime.

There are limits, however. First of all, the homeless defendant has to show certain things in order to prevail at trial. The problem in the case we discussed was that the trial court did not allow him to fully do so.

There are many instances where, in reality, a person can be convicted because that person is poor. No, the criminal charge is not entitled “Being Poor” or “Being Homeless”. However, being unable to pay fines or probation fees can result in being incarcerated. The same with not paying restitution. Finally, trespass is more often to be charged when one has nowhere to go. Further, a homeless person protesting that the police should leave him alone is likely to be offensive to police officers. That spells a charge of disorderly conduct.

To be sure, our system has set up safeguards to help the poor in these situations. They get court-appointed lawyers. There are often community service alternatives to certain fees and fines.

However, particularly if we are talking about not getting dragged into the criminal justice system in the first place…well, we do not seem to have conquered that.

 

  1. “If you feel you are doing nothing wrong, the police cannot bother you   If the police officer does overstep his authority and bother you, you can call him on it and that will probably get any charges against you dismissed.”

 

We discussed this at length yesterday.

If you decide to play lawyer or combatant with the officer, you will only worsen your situation. You will certainly not set up a scenario wherein the charges against you will be dismissed. You need to act cooperatively (with the exception of making statements or consenting to searches) and wait until you have the services of a lawyer to help you. Then you will be able to access the situation and figure out what you can do.

In terms of not making statements or consenting to searches, this does not mean grabbing the officer and throwing him away from the area in which he wants to search.  It does not include suggesting various offensive and probably physically impossible actions for the officer to perform.

  1. “There is not already additional punishment when a suspect fights with a police officer.”

Quite often, the difference between a charge of resisting arrest or assault and battery on a police officer is proportional to how badly the defendant is beaten up.

Nobody generally knows what happened out there. It is the defendant’s word against that of the police. It is not an equal playing field. Who do you think the prosecutor is going to believe?

  1. “The police are busy…if you have been in an altercation with someone, just leave them alone, go home and forget about it.”

Unfortunately, the decision of who will be the “victim” and who will be the “perpetrator” isoften based upon who reached the police first. The realityis that not everyone wants to run to the police every time they are wronged. I think the police would agree with that too. However, neither police officer nor prosecutor seem to understand it when faced with case.

The question becomes why the soon-to-be defendant did not seek the aid of the police. The assumption is because it was that person who attacked the poor innocent fellow who did seek the police help.

  1. “You are presumed innocent under the law and that is how everyone in the system will treat you unless and until you are convicted of a crime.”

Well, this is sorta-kinda true if you attach the rest o f the reality…you are assumed guilty.

Ok, we do tell the jury many times that the defendant is presumed innocent and has to do nothing to defend him or her self. But, what about before one gets to trial? Let’s assume that the presumption of innocence is absolutely true in the trial (which it really is not). How about the year or so of hell that the criminal defendant is going to face before the trial…even if he is not incarcerated during that time, which he may very well be.  Especially if he has no money.  See Point 1, above.

If she is on probation, she can be jailed because she broke probation by getting arrested. Thus, while the defendant is “presumed innocent” in the ongoing case, she is incarcerated because she violated probation long before the new case every is resolved.

The interest in a bail hearing is whether or not a defendant is likely to not return to court. Understandable. However, just try arguing that there is no reason for the defendant to flee because he is innocent…at least presumed innocent at the given time. You will hear about all the nasty things the defendant has allegedly done in his life (most of which he is either uncharged or presumed innocent), but the presumption of innocence is not likely to get him low or no bail or bail conditions.

In many cases, including nonviolent ones, criminal defendants will have to wear a GPS bracelet or other encumbrances on his person and livelihood because of the allegation for which he is presumed innocent.

*****

These are just a few things of which you should be aware. Reasons why you need an experienced criminal defense attorney if pulled into the system.

I may sound like all is lost. All is not lost. There are folks who realize these problems and try to correct them as much as possible. But, in the meantime, they are realities of which you need to be aware.

If this ends the week leaving a bad taste in your mouth about our system, just remember something. Everyone knows it is not perfect. But it is probably closer to true fairness than any other criminal justice system out there.

If nothing else…we do try. There is a hope for justice.

To me, that still makes this a great country.

Have a great, safe and law-abiding weekend. Happy 4th!

Contact Information