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

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.

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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

Four years ago, Massachusetts state chemist, Annie Dookhan, was convicted of falsifying drug tests and tampering with evidence in thousands of criminal cases. Although Dookhan has completed her three-year prison sentence, many of the individuals whose drug samples she tampered with are still waiting for their time in court. But many groups, including the American Civil Liberties Union (ACLU) of Massachusetts, think this process has gone on long enough. They want to find a global remedy – dismissal of the approximately 24,000 cases linked to Dookhan.

On Wednesday, the Supreme Judicial Court will hear arguments by the ACLU and state public defenders. These groups want the cases in which Dookhan was involved to be dismissed.

“We think vacating these convictions is required to protect the rights of people who have already served their sentences and are living every day with the collateral consequences of those decisions,” said Matthew Segal, the ACLU’s legal director. “It’s also necessary to safeguard the justice system’s integrity, which has been seriously damaged, not just by the scandal itself but by how it’s been handled.”

Prosecutors Disagree

In the eyes of prosecutors, while some of the defendants may have been negatively impacted by Dookhan’s actions, many others would have been found guilty even if Dookhan hadn’t been involved. Beyond drug tests, additional evidence from surveillance videos, cellphone records, and guns was used in many of these cases. “Every case is different and every case should be approached individually,” said Jake Wark, a spokesman for Suffolk District Attorney Daniel Conley. “Our argument is that a global remedy is no remedy at all.” A similar blanket proposal was rejected in 2015. If you are facing drug charges, contact a Boston defense lawyer today.

The ACLU and public defenders believe that handling each of the 24,000 cases on a case-by-case basis will be extraordinarily time consuming and unfair to defendants. If, for example, there are several thousand defendants whose case will eventually be dismissed when their case is heard, those defendants may have to wait years if a global remedy is not approved. In the meantime, they have to deal with the repercussions of a conviction, such as difficulty finding housing and employment.

According to the Committee for Public Counsel Services, it will take about 24 years for all 24,000 defendants to be assigned to public defenders. But prosecutors believe that is a gross overstatement. “There is now no pending backlog of Dookhan-related cases, and any defendant who wishes to file a motion to vacation or to withdraw his guilty plea or vacate his conviction can do so in the ordinary course of business with no delay,” said Wark. Continue reading

In Twelve Step programs, one of the steps to recovery is to “make amends” to people you have wronged. Well, while I am not involved in such a program at present, I do owe you, my readers, an amends. I left you hanging during the police cam festivities, hinting that I was going to be returning to shining the light of truth on that notorious department…the Department of Children and Families.

Well, the police cam controversy is over for now and I will wait a bit longer before I return to the truth of …Them. Instead, let’s look at a more recent criminal case about which you should be aware.

Especially given the fact that we are probably going to be inundated with data from the police cams.

It involves a criminal appeal which, lo and behold, actually recognizes a particular reality  which we have discussed many times in this blog.

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I have been bouncing back and forth between the Boston Police Union vs. Body Cams follies and the return to…that other Department…in terms of topics for the blog this week.

I think, as a prelude to both, I should bring you a case in which the Supreme Judicial Court has just agreed that Mr. Sean Ellis (hereinafter, the “Defendant”) should be granted a new trial.

According to the Boston Herald , the Defendant was charged with shooting and killing Police Officer John Mulligan at approximately 3:30a.m. on September 26, 1993. The Defendant was convicted after trial in 1995.

According to the Commonwealth, Officer Mulligan had been on a security detail at the time. Allegedly in his car, asleep.

For some reason, the case was tried several times before he was finally convicted in 1995 and sentenced to a life sentence.

As it turned out, however, there were issues which dwelled beneath the simplistic view of the shooting which the Commonwealth wished to share with either the jury…or the defense.

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You have probably heard the notion that being broke is not a crime in the United States. After all, they can’t prosecute you simply for being poor, can they?

Well, kinda- sorta.

Try not being able to pay restitution, probation fees or other court costs when you are on probation…!

A particular case covered by the Boston Herald , the Supreme Judicial Court seems to have noticed a case in which our legal theories do not coincide with reality.

David Magadini (hereinafter, the “Defendant”), now 67, was arrested in the Berkshieres . The man was then tried and convicted of criminal trespass. After all, he took shelter in a privately owned building during the harsh winter weather.

Oh, did I mention that he was homeless at the time?

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In my last blog, I told you that I would address a second issue which came to light (again) from a recent SJC decision. The decision involved a murder case and the issue of exculpatory/informant evidence that had not been disclosed to the defense.

Of course, I had also indicated that this second part of the posting would be presented on Monday. Today is Wednesday.

Hey, look…I’ve got clients to defend…!

Well that’s my perspective on that subject.

In terms of the accused in the criminal justice system, one might be surprised that the prosecution would not give all possible evidence to the defense immediately. After all, it is the defendant who is facing the loss of liberty. We have been brought up to believe that the prosecution is the good guy in the trenches. Surely, the good guys would not play dirty or try to hide evidence…right?
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Darkens Bonnett (hereinafter the “Defendant”) is a gent who stands charged and convicted of first-degree murder.

Well, at least he was.

The Defendant’s case has been remanded back to trial court to deal with a problem regarding discovery. The Supreme Judicial Court found prejudicial error in his case upon reviewing the appeal.
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