The other day, I received another one of those calls from a prospective client. He was calling me about a case in which he was scheduled to face criminal charges at Boston Municipal Court the next day. He had not sought an attorney earlier because, until he had spoken to a friend of his, he had thought the charge was “no big deal”.
He was facing felony charges.
The fact is, however, there is really no such thing as “no big deal” when you are facing criminal charges. The crime I most often see the N.B.D. misconception associated with is the charge of “Disorderly Conduct”.
Yes, this is the type of charge that Professor Gates from this week’s headlines faced. People hear of this type of charge and imagine intoxicated people waving an empty bottle of whatever they just consumed, yelling incoherently at passers-by and creating a public nuisance. The image of Otis from the old “Andy Griffith Show” comes to mind.
Yes, that fits, but such a colorful example is not necessary.
Under Massachusetts law, a person can be convicted of being a “Disorderly Person” for many things, and there are various statutes under which a person can be found to be disorderly. Generally, if a person is said to have an intention of causing public inconvenience, annoyance or alarm, or simply recklessly creates a risk of that alarm, and engages in fighting or threatening, violent or tumultuous behavior, they can be convicted of being disorderly. Or, on the other hand, if they are found to have created a hazard or physically offensive condition by any act which serves no legitimate purpose, they may be convicted as well.
This, though, is only the Massachusetts state statute. There is also a federal statute which defines the elements of the crime. Under federal law, a person can be found guilty for basically the same intent or behaviors, but added specific targeted activities are mentioned, such as “Making noise that is unreasonable” or maintaining “a hazardous or physically offensive condition”.
The elements of these statutes can be pretty general. As such, people can be doing what they thought they had a right to do (free speech and all) and yet be arrested and even convicted for disorderly conduct. After all, who is to say that if I speak my mind to some people (right to congregate and free speech) and some of my opinions are offensive to some, that I am not guilty of disorderly conduct?
The answer to that question is simple – law enforcement.
It is law enforcement that will decide, at least at the time of arrest, if I am merely some guy spouting off within his rights or actually being disorderly.
Yes, this would be the same law enforcement who I keep telling you must feel in control of the situation. What do you think their judgment will be if, when they approach me, I simply advise them to visit a rather hot location reputed to be well under ground in which I suggest a relative with two horns and a pitchfork dwells?
You got it.
“But Sam”, you begin, “What’s the big deal? I mean, so the police arrest you and, worst case scenario, you pay some fine and the case is dismissed? Over and done with, right?”
First of all, Disorderly Conduct is punishable by a potential jail sentence. Second, as we have discussed many times in this daily criminal law blog, once a criminal complaint issues against you and you are arraigned in court, the matter is entered on your criminal record. This means that, whatever the result of the case, someone ordering your record (or CORI) will see that case and what happened with it.
Even should the matter be dismissed, this is not great for things like job advancement…especially with the economy being what it is. Not to mention other agencies which will not necessarily be too understanding given a criminal record.
“Well, that’s a pretty bleak picture”, you tell me. “So, what do we do…just stay in our homes and keep our mouths shut when we go outside?”
Of course not. But the first thing you need to do is to realize that this criminal allegation is not simply “laughed off” by the police, prosecutors or courts. It is a real crime and must be treated as such.
There are, however, ways of dealing with such allegations which can minimize or, perhaps, even eliminate the dangers of a criminal record. Most people need to hire an experienced criminal defense attorney to even hear about them. You, however, can simply read tomorrow’s blog, which is Part Two of today’s Attorney Sam’s Take, and read about them.
You will still need an experienced defense attorney to utilize most of them, though.