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.

Articles Posted in Criminal Appeals

If you have been convicted of a crime, your conviction is a public record. What does that mean? Well, for starters, potential employers and landlords can do a criminal background search, and they may deny you employment or housing when they see the conviction. What many people don’t know, however, is that anyone can walk into a court clerk’s office and perform a criminal record search on a particular individual.

And it’s getting even easier than that. In the past, a person had to physically walk into a court clerk’s office to perform such a search. Since the birth of the internet, however, any average Joe can use the services of an online criminal background search firm while sitting in his pajamas sipping coffee. Private, for-profit companies gather conviction records from myriad sources, then use them to create databases which can be accessed by any paying customer with a curiosity about someone’s record, or lack thereof.

So, What Shows Up?

If someone performs a criminal background check on an individual, the following information may be revealed:

  • Warrants
  • Arrests
  • Misdemeanor convictions
  • Felony convictions
  • Court records, including judgments, dockets, and orders
  • Sex offenses
  • Records of incarceration

Thanks to the Fair Credit Reporting Act (FCRA), civil suits and arrests will not show up in a criminal background search after the passing of seven years. However, criminal convictions may remain on the report indefinitely. A MA criminal defense attorney can help you protect your rights if you’ve been charged with a  crime.

Can My Record be Sealed?

The only way a criminal record can be hidden from public view is through the process of expungement, also known as sealing. When a judge “seals” a criminal conviction, not only is the record no longer public, the individual can answer “No” on any application asking if they have ever been convicted of a crime. That being said, certain individuals and organizations – such as prosecutors and law enforcement agencies – can still view expunged records. And expungement isn’t always an option.

In order to have your record sealed, you and your offense must meet certain requirements. In most cases, it must have been your first offense, a relatively minor offense, you must have completed your sentence, and a period of time must have passed since completing your sentence. To qualify for expungement, your case must meet one of the requirements below:

  • Your case was dismissed (you were found not guilty, or the case ended without a conviction).
  • Five years have passed since you finished serving your sentence for a misdemeanor offense, and you have not re-offended.
  • 10 years have passed since you finished serving your sentence for a felony offense, you have not re-offended, and your conviction was not for “crimes” against the public, violations of the State Ethics Act, certain sex offenses, and certain firearms offenses
  • Your conviction was for first-offense misdemeanor drug possession (at the judge’s discretion, these cases may be sealed immediately)

A Boston defense lawyer can help you determine if you qualify for expungement. Continue reading

A criminal conviction in Massachusetts doesn’t necessarily mean the end of a case. If you feel that you’ve been wrongfully convicted of a crime, you may have a few more options. Depending on the circumstances surrounding your wrongful conviction, you may be able to move for a new trial with a new jury. But a judge will only grant a new trial if serious errors or injustices occurred during the original trial. More likely, you will request an appeal of the decision.

In an appeal, the defendant challenges his or her conviction, or the associated sentence. It is possible for the sentence to be challenged by itself, and not the underlying conviction. The appeal is heard by a higher court known as an appellate court. If successful, the appellate court will change the decision of the lower court. In certain cases, an appeal can end a case in its entirety, but generally an appeal simply takes the case back a few stages.

What if the Intermediate Appellate Court Upholds My Conviction?

The appeal process can seem to drag on forever. In most situations, the defendant will first appeal to an intermediate appellate court. If that court upholds the conviction, the defendant can then appeal to the highest court in the state. If still unsuccessful, the defendant can appeal to the U.S. Supreme Court. That is to say, if the higher court approves the request to review the case. A MA criminal defense attorney can help if you wish to file an appeal.

Appeals are generally reviewed only when the request is based on a legal claim made by the defendant during the trial. For example, if a defendant claimed that he was getting ineffective assistance from his counsel during the trial, his request is more likely to be reviewed than if he had stayed silent about his concerns until the trial had concluded.

And errors during the trial don’t guarantee a successful appeal. In order for an appellate court to reverse a conviction or reduce a sentence, the legal error must have likely contributed to the defendant’s guilty verdict. If the defendant’s constitutional rights were violated, however, the conviction may be reversed even if the violation didn’t impact the outcome. A Boston criminal defense attorney can help you determine how to proceed if you’ve been charged with any type of crime.

Can I Appeal if I Plead Guilty?

Yes. But your options are seriously limited. Guilty pleas are intended to be final. In rare situations, a conditional guilty plea may be granted with the ability to appeal a specific issue. In other cases, you may file a petition for something called a writ of habeas corpus. Habeas corpus presents an argument as to why a guilty plea should be withdrawn. For example, what if Bob plead guilty to an assault charge because he thought it was the best option? But new evidence shows that Bob actually acted in self defense? Bob may be able to file a petition for a writ of habeas corpus, with the hope that his conviction will be overturned. If the judge denies the request, he can appeal. Continue reading

Steven Avery, subject of the popular Netflix show “Making a Murderer,” was denied a new trial by a Wisconsin judge last week. Avery maintains his innocence in the 2005 murder of 25-year-old photographer Teresa Halbach. Despite the finding of new evidence in his case, the judge ruled that there simply wasn’t enough new information to sway the result in Avery’s favor. That being said, the judge was unaware of some key developments in the case. As such, Avery’s attorney has said that they are not giving up.

In June, Avery’s lawyer, Kathleen Zellner, filed a motion seeking a new trial. The motion, which consisted of more than 1,000 pages, claims that his conviction was based on false testimony.

The six-page decision to deny the motion, made by Sheboygan County Judge Angela Sutkiewicz, held that the motion not meet the standard for a new trial. Sutkierwicz went on to explain that the new evidence was too ambiguous to make a difference.

But Zellner has vowed to keep fighting. “We are filing an amended petition because we have additional test results and witness affidavits. The scientific testing is not completed,” she said. “We remain optimistic that Mr. Avery’s conviction will be vacated.”

Motion for New Trial vs. Appeal

In order for a convicted defendant to be granted a new trial, he or she must show that there is a reasonable probability that new evidence is strong enough to change the outcome. A motion for a new trial and an appeal are two entirely different things. For a new trial to be granted, there must be new evidence or evidence of injustice, such as juror misconduct. The following circumstances may warrant the granting of a new trial:

  • Jury misconduct
  • Court errors
  • Misconduct or prejudice on the part of the prosecution
  • Discovery of new evidence
  • Loss or destruction of trial record
  • Ineffective counsel

If any of the above scenarios exist, a new trial may be granted. In Avery’s case, the motion was requested on the basis of new evidence, but the judge didn’t consider the evidence to be compelling enough to grant the motion. If the court does not agree to vacate the past ruling in Avery’s case, he will have to file an appeal, which may or may not be successful.

Where a new trial provides the opportunity to have your case heard again by a new jury, an appeal is an opportunity to have a higher court review your original case for certain mistakes. It is not a new trial, and you cannot present new evidence. A MA criminal defense attorney can help you protect your rights if you feel that you have been wrongly convicted of a crime. Continue reading

The fall of 2017 will be a time of major decision making for the U.S. Supreme Court and its new Justice Neil Gorsuch. The Court will be deciding on a number of cases, but its focus on the following cases and criminal law issues is of particular interest to attorneys nationwide. A Boston criminal defense attorney can help you protect your rights if you’ve been charged with any type of crime.

Cell Phone Searches

Is cell phone location data simply routing information, or does it constitute conversational content? That is the big question in United States v. Carpenter, the case in which law enforcement officers used cell site data to incriminate Timothy Carpenter. The officers didn’t get a warrant before obtaining this information, and they used it to link Carpenter to locations at which several robberies had occurred. If cell phone location data is only a form of routing information, it is not protected by the Fourth Amendment. If, however, the Supreme Court decides that this information is a form of conversational content, it is protected by the Fourth Amendment, making law enforcement’s actions in the above case unconstitutional.

Dominick Cristino is a free man. Nearly two years since he was sentenced to up to two-and-a-half years in prison for stalking Milford’s police chief, the MA man’s convictions have been vacated. In addition to physically following the police chief he was convicted of stalking, Cristino also posted various “threatening comments” on Facebook. He was released in April, pending his appeal, and three Appeals Court judges made that release permanent last Friday.

Prosecutors alleged that Cristino’s comments were “true threats” and thus, not constitutionally-protected remarks. Initially,  Cristino’s motion for a required finding of not guilty was denied by Superior Court Judge Daniel M. Wrenn. He ruled that “there was clear evidence to establish that these were true threats rather than protected speech under the First Amendment.” But the appeals court disagreed.

“We conclude that the statements made by the defendant that were the basis for his convictions were constitutionally protected speech, and therefore could not be the basis for conviction,” ruled the court. They went on to say that the First Amendment protects political remarks made about public officials. In fact, these types of comments are at the First Amendment’s core. A MA defense lawyer can help you determine how to proceed if you are facing stalking charges.

Cristino’s Facebook posts were highly critical of both heads of the Milford police department, accusing them of everything from alcohol abuse and inappropriate relationships with criminals, to outright corruption. Cristino also painted critical messages on his truck, posted signs on his property, and followed the police chief throughout town, often driving past establishments frequented by the police chiefs.

While the Appeals Court did say that Cristino’s comments could be considered threats on their own, together they do not constitute stalking. “True threats” are direct threats of physical harm, actions, or words, that reasonably cause the victim to fear for his or her safety.

In an unpublished decision, the Appeals Court panel wrote the following:

“Having reviewed the Facebook postings that were the grounds for the defendant’s convictions and having considered the context of the videos, we conclude that they did not constitute threats of the kinds of unlawful acts of violence that render speech unprotected.”

“Rather, the defendant’s posts ‘primarily discuss issues of public concern,’ as they are clearly directed at exposing what the defendant considered to be shortcomings in the chief’s and deputy chief’s ability to properly perform their public positions,” ruled the court. “In accusing the chief and deputy chief of drinking on the job, spending time with known local criminals, and generally being corrupt, the defendant’s videos were obviously attacking their capacity to effectively serve as police officers.”

What are the Penalties for Stalking in MA?

Stalking crimes are punished harshly in MA. If you have been convicted of stalking, you may be facing the following penalties:

  • First offense: Up to five years in prison, and a fine of up to $1,000
  • Second offense: Up to 10 years in prison

As with all criminal offenses, experienced legal counsel is essential to a positive outcome. A Boston defense attorney can help you determine how to protect your rights if you’ve been charged with stalking. We often think of a stalker as a man who follows his female victim home at night and lurks outside her window. Although this is one example of stalking, this criminal act can take many forms and affects both men and women. Stalking can include physical following, emails, phone calls, and social media posts. And it’s quite common; about 6.6 million people are stalked in the U.S. annually. Continue reading

According to the American Civil Liberties Union (ACLU), more than 20,000 drug cases are on their way to dismissal following the criminal actions of Annie Dookhan, a former MA state chemist. In 2013, Dookhan pleaded guilty to 27 counts, including tampering with evidence, perjury, and obstruction of justice. The disgraced chemist was called Superwoman by her co-workers because she completed tasks so quickly, but there was a criminal element to her speed. Dookhan was found to have returned positive results for drugs she never even tested. She also forged signatures and mishandled samples.

Thousands of drug convictions have been tainted by Dookhan’s actions. In January, district attorneys were ordered to complete a monumental task; they needed to compile lists of individuals who – they believed – could be re-prosecuted, and another list of those whose cases should be dismissed. On Tuesday, lawyers counted 21,587 cases likely to be dismissed. Only a few hundred will be re-prosecuted.

“From numbers that we’re initially getting, about 95 percent of these tainted drug convictions will be dismissed,” said Carl Williams, a lawyer with the A.C.L.U. of Massachusetts. “And that is a victory for regular people, for people who’ve been tarnished by these drug convictions.”

More than 7,800 cases in Suffolk County, which encompasses Boston, are expected to be dismissed. For many of these people, the damage is irreversible; those locked up for months or years have lost jobs, housing, and relationships. Families have suffered. Some people have even been deported. A MA personal injury lawyer can help you recover damages if your life was negatively impacted by Dookhan’s negligence and criminal behavior.

Wrongful Convictions

Compensating people for wrongful convictions is not only the right thing to do, it shows the public that the government is willing to make amends for its mistakes. The following statement is taken from the website of the Innocence Project, an organization that seeks to exonerate the wrongfully convicted: “Conceding that no system is perfect, the government’s public recognition of the harm inflicted upon a wrongfully convicted person helps to foster his healing process, while assuring the public that the government – regardless of fault – is willing to take ownership of its wrongs or errors.”

Most states, including Massachusetts, have a compensation statute, which compensates a wrongfully-convicted person for each year spent behind bars. When the compensation amounts were last updated under George W. Bush, the recommended amount was up to $50,000 per year. Based on inflation, that amount should now be approximately $63,000 per year. A Boston injury lawyer can help you determine how to move forward if you’ve been wrongfully convicted of a crime.

As a result of her actions, Dookhan was sentenced to three to five years imprisonment, and she was granted parole in 2016. Was justice served? Thousands of people’s lives have changed, and will continue to change as a result of the former chemist’s actions. Continue reading

In 2012, former drug lab chemist Annie Dookhan was caught tampering with evidence and falsifying test results in thousands of criminal drug cases. For her crime, Dookhan spent three years behind bars. But what about the falsified tests? More than 24,000 drug convictions may have been involved in the tampering scandal. What happens to those individuals? On Wednesday the highest court in Massachusetts rejected a proposal to dismiss all 24,000 convictions, with the exception of those directly impacted by Dookhan’s crime.

As many defendants continue to wait for an opportunity to challenge their convictions, this week the Supreme Judicial Court ruled against ordering the dismissal of all 24,000 cases. In addition, the court declined the prosecutors’ recommendation to take no new action. In lieu of a blanket dismissal, the high court is implementing a three-phase system to handle the cases. If you have been charged with a drug crime, contact a Boston defense lawyer today.

Three-Phase System

So, it happened again? In a perfect world, we would all learn from our mistakes the first time…but it doesn’t always work that way. If you are facing charges for a second OUI offense in Massachusetts, you will need the help of a skilled OUI defense attorney to minimize the damage. While it is possible to fight a second OUI, it’s not easy, and it certainly isn’t something you want to attempt on your own. Read on for more information about second and subsequent OUI charges, and what options may be available to you.

Put simply, Massachusetts is hard on OUIs, and especially hard on second and subsequent OUIs. That being said, every case is unique. It’s possible that you have been unfairly accused, or that jail time and hefty fines aren’t the best remedy in your particular situation. If a serious alcohol problem is to blame, rather than sheer recklessness and disregard for the law, it’s possible that an alcohol treatment program is a preferable alternative to getting locked up. If you’ve been charged with an OUI, contact a Boston defense attorney today.

What Are the Penalties of a Second OUI Offense?

Every case is different, but the following penalties may apply if you are convicted of a second OUI:

  • Up to two-and-a-half years in jail
  • Fines of up to $10,000
  • License suspension of up to three years
  • Required installation of an Ignition Interlock Device when driving privileges are restored

With the help of experienced legal counsel, you will likely avoid any extended jail time. If alcohol addiction is the culprit, you may have the option of a plea deal with an inpatient alcohol treatment and two years of probation. Although inpatient treatment still requires you to take time off work, it will likely only be a two-week program. And the reality is, if you need help, you need help.

Benefits of Fighting a Second OUI Charge

You may win, you may lose, but with a skilled lawyer by your side, your chances are dramatically improved. And the bottom line is, there are multiple benefits to fighting OUI charges, even for second and subsequent offenses. For example, if you plead guilty to a second offense, you will automatically lose your license for up to three years. That’s a long time to be without wheels. Further, a guilty plea removes your chances of getting a hardship license before your suspension is up. Basically, if you fight the charges and lose, you probably won’t be any worse off. And if you win? Then your record is clean, you avoid jail time, and you don’t have to pay fines. If you are facing OUI charges, contact a MA defense lawyer today.

Treatment is a good option, if it’s available. This is especially true if treatment helps you avoid getting a third offense. The stakes are much higher with a third offense. For starters, a third OUI conviction is a felony. Beyond that, you’ll spend a mandatory 150 days in jail, and you could be behind bars for up to five years. You’ll pay up to $15,000 in fines, and your license will be suspended for up to eight years. To sum it up – don’t get a third OUI offense. Continue reading

If you can’t afford bail, what do you do? Well, the short answer is, you stay in jail. But there are limits on the amount of bail a court can impose on an individual, based on unique circumstances of that case. If bail seems disproportionately high, a skilled defense attorney can help you get your bail reduced through something called a bail reduction hearing.

How is Bail Set?

The purpose of bail is to ensure that defendants show up for trial. Basically, it’s a form of collateral. The amount of the bail is generally dependent on three factors:

  • The severity of the crime
  • The defendant’s flight risk
  • The risk to the community if the defendant is released from jail

Excessive Bail

“Excessive bail” is prohibited in the Constitution, but it does not go on to define what excessive bail means. For this reason, the Supreme Court ruled that bail should not be so high that it forces the defendant to remain behind bars. The Supreme Court also ruled that it is up to individual courts as to whether a defendant has a right to bail; in some cases, he or she may be refused bail entirely. However, a “compelling governmental interest” has to be shown to refuse a defendant’s right to bail, pending trial.

The Constitution, and a federal statute known as the Bail Reform Act, provide defendants with the right to request a bail reduction when the initial amount is too high. If this is the case, the defendant will ask for a bail reduction hearing. If a defendant cannot afford to pay the bail, and it can be shown that he or she is not a flight risk and poses little to no danger to the public, it can be argued that the imposed amount is akin to a denial of bail.

If a bail reduction hearing is requested, the court must consider this argument. However, there is no rule stating that bail should be easy to pay. In fact, as stated in the Bail Reform Act, the courts can set bail “to induce a defendant to go to great lengths to raise the funds without violating.” In other words, it can be challenging to raise the imposed bail, but not impossible. The good news is, “excessive bail” is a very subjective term. With the help of a highly skilled criminal defense lawyer, your chances of having bail reduced are significantly improved. Contact a Boston defense attorney today.

In much the same way that the defendant can request a bail reduction, the prosecution can request a bail increase. If the prosecution convinces the court that the defendant is a flight risk or a serious threat to the public, this request may be approved. Additionally, if the court suspects that bail funds were acquired through illegal activity, such as drug sales, a subsequent hearing may be held. For all of the above reasons, it is essential to have a knowledgeable, experienced defense attorney by your side through the entire process. Contact a Boston defense law firm today.

Continue reading

The Netflix series “Making a Murderer” aired earlier this year and quickly became one of the pioneering network’s most popular documentaries. The series centered around the 2007 sexual assault and murder of a photographer, and the possible framing of several individuals. One of those individuals, then-16-year-old Brendan Dassey, was questioned without a lawyer present and was later convicted for the murder, along with another man. In August, federal judge, William E. Duffin, overturned Dassey’s conviction. Although the ruling overturned the conviction, Wisconsin’s attorney general, Brad Shimel, has appealed the ruling. However, as of Monday, a federal judge allowed Dassey to go free during the appeal.

Critics of Dassey’s conviction argue that he was mentally unfit and was coerced into a false confession. Furthermore, they claim that his court-appointed lawyer did not have his best interests in mind. Prosecutors allege that Dassey, together with his uncle Steven Avery, sexually assaulted, murdered, and then mutilated the corpse of 25-year-old photographer, Teresa Halbach. The murder and the investigation that followed made for good television, but for the people involved, including the victim’s family, it is an ongoing source of pain and unanswered questions. Contact a Boston criminal defense lawyer today if you are facing charges for a criminal offense.

Why is Dassey Being Released During the Appeal?

According to the ruling, Dassey’s “prison disciplinary record is exceedingly benign,” and the authorities have been unable “to demonstrate that Dassey represents a present danger to the community.” Overall, Dassey’s prison record shows him as a cooperative inmate with the need for minimal supervision. In layman’s terms, he is not a flight risk and presents little to no danger to others. The terms of his release include the following; he must remain in Wisconsin’s Eastern District at all times, he cannot possess weapons, controlled substances, or a passport, and he cannot make contact with Steve Avery or the victim’s family. Probation officers will also monitor Dassey for an indefinite amount of time.

Although the Netflix series raised questions that both Dassey and Avery were framed by law enforcement officials, the show may have led viewers astray. According to Ken Kratz, the former district attorney for Calumet County, Wisconsin, the show did not reveal important evidence used to convict the men. The show “really presents misinformation,” said Kratz. Whether Dassey gets to remain a free man is up to the courts to decide, but this case is a perfect illustration of the importance of a good lawyer when facing criminal charges. If you’ve been charged with any type of crime, contact a Boston criminal defense lawyer today. Continue reading

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