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.

AN EXPERIENCED BOSTON CRIMINAL DEFENSE LAWYER GIVES AN EXAMPLE OF HOW AN UNFORTUNATE STATEMENT CAN LOCK YOU UP

I heard a story this weekend that I just had to pass on to you. It illustrates something we have been talking about in an unusual way.

The police were called to an apartment. The report was that there had been a murder. Sure enough, when the police got to the apartment, there was a dead body.

In the kitchen.

Also in the kitchen was a gentleman (hereinafter, “Cookie”) who was cooking macaroni and cheese apparently nonplussed by the dead body on the floor.

The officers asked Cookie who had called the police. Cookie said that he had.

“Well, who is the guy on the floor?”

“Don’t know.”

“You don’t know the dead body lying in your kitchen is?”

Nope. Never seen him before.”

About a minute or so went by as the officers wondered what to do next. Meanwhile, Cookie continued to cook.

Finally, Cookie said, “Well, this is almost done. You want some? It looks like he’s not going to be having his portion.

 

Attorney Sam’s Take On The Levels Of Unfortunate Statements

I’ll admit that the story is a bit macabre. However, it does help to make a point we discussed a lot last week.

The fact that Cookie is calmly making macaroni and cheese nonchalantly while a dead body is on the floor is odd enough behavior for the officers to suspect that something is “wrong” here.

“Probable Cause”?  Probably not.

Clearly, Cookie had seen the body because, as he admits right off, he is the one who called the police.

“Well, that does not necessarily implicate him, Sam. Maybe he is just an odd anti-social guy who does not care who is dead and merely has a steel stomached.”

True. But then he does it.

He asks the police if they want the portion that the deceased was originally going to have.

Houston…we now have probable cause.

The deceased…whom he says he has never seen before and doesn’t know.

Kind of hard to figure out why he would have been cooking for him, no?

“So, does that make this a rock solid case for the Commonwealth?”

No, and as I have told you before, there is no such thing as an absolutely unwinnable case. Likewise, there is nothing one could ever call s “sure win”. There is s jury involved. Anything can happen.

However, the statements and situations so present  a “leg up” for the prosecution. We really know nothing else about the case.

I will warn you about something, though. In some instances, there does not have to be a lot of evidence to make you an involuntary guest of the Commonwealth.

“What do you mean?”

Let’s say that Cookie is on probation. In order for the Department of Probation to surrender him and send him to jail, it merely needs to produce probable cause that he committed a crime. In fact, should the officers arrest him, he has violated probation because he is not supposed to get arrested!

That’s right…it is a probation violation to even get arrested for a crime.

Now, folks like probation officers and judges are not crazy. If there were a case where someone got arrested and there was really no evidence, it is doubtful that, even though he got arrested, Cookie would be violated and send into incarceration. However, remember, there need only be probable cause.

Let’s say the police do not arrest Cookie, but a prosecutor presents the matter to a Grand Jury. The Grand Jury must decide whether there is probable cause to believe that the defendant committed a crime. Generally, at least in Massachusetts, a prosecutor is said to be able to indict a ham sandwich. In other words, if the prosecutor wants an indictment, she is likely to get one. Then, of course, the defendant is arrested and prosecuted on the indictment.

Enough to be found in violation of probation? A new murder charge? Well, I would say the chances are good when you consider something else we have discussed previously. Namely, nobody gets criticized by being to ‘tough:” on (alleged) crime.

So, the bottom line of today’s posting? You make a statement at your own peril…even if you think you cannot be charged with the alleged crime at issue.

Before you talk to law enforcement..talk to an experienced criminal defense attorney!

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