Articles Posted in Expungement/Sealing Record

In my last posting, we spoke about a particular defendant who was arrested for drug crimes. Members of his family were also arrested at the scene for, basically, trying to prevent the arrest from taking place as the officers had intended it. Let’s call them, collectively, the “Defendant Family”.

On Thursday, I indicated that the Defendant Family would already be  affected by their arrest even if they ended up being found “not guilty”.

What many people still do not realize is that you do not need to be convicted to lose your “innocence” under the law.

A Clerk Magistrate hearing takes place in some cases before an arraignment. There is no judge at such a hearing, only a Clerk Magistrate. The purpose of the hearing is to decide if there is probable cause for the Clerk Magistrate to issue a criminal complaint. Should the criminal complaint issue, the next step is an arraignment.

This is why the Clerk Magistrates hearing is so critical to a defendant. It is the last stop before an arraignment. It is more than worth doing all that you can, usually through counsel, to get one. We have discussed the requirements and procedures for this in earlier blogs and, I am sure, will return to them again at some point.

But not today.

As you know, an arraignment is the first time a criminal defendant appears before a judge. At the arraignment, a defendant effectively loses his or her presumption of innocence.

“Sam, how can that be? We are all told that the presumption of innocence never ends unless and until the government proves the defendant guilty beyond a reasonable doubt before a judge or jury.”

You’re right. That is what we are told. In some cases, it is actually close to true.

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As the Boston Criminal Lawyer Blog indicated yesterday, officials in Newton are reviewing their hiring procedures in the wake of the two recent arrests relating to child pornography. It may be worth noting that these were arrests…not convictions…but, then again, to most…maybe not.

Anyway, Mayor Setti Warren has announced, “We’re going to look at everything,…We want to take a look at what options there are inside the city, outside the city, and within the balance of the law.” He went on to say that the sessions will look at not only additional screening of potential employees, but also at their training and supervision on things like how complaints will be handled. He added that the findings will be reported to the public.

While, for the most part, this sounds reasonable, there are still issues. For example, Newton city did a criminal history check on the two recent arrestees before they were hired. Said history check includes checking the state’s Criminal Offender Record Information ( “CORI”). Further, the CORI check is repeated every three years. No problems were found in either case. While some say that databases outside the Commonwealth should also be checked, doing so would apparently not have prevented the instant situation; neither man had any record of criminal history.

So…where do we go from here?

Attorney Sam’s Take On Criminal Offender Record Information Searches

Let’s do what any experienced criminal defense attorney has to do on a daily basis…separate, to some degree, what one is concerned with, depending on which hat one is wearing at the time. For example, as a citizen, I am against crime. As a defense lawyer, I defend alleged criminals (I, semi-jokingly, prefer the term “the misunderstood amongst us”). As you know, of course, I have strong concerns about the criminal justice system which are consistent with both hats…but that is a topic for another day.

The topic here, for today at least, is the CORI check
Let’s start with the prevention hat. How can we make sure that potential predators do not end up with jobs through which they can victimize the innocent? Well, sure, CORI can be a start. Further, I agree that, if you are going do CORI checks, it makes sure not to limit yourself to this state…particularly if the subject has ever worked or lived in a different state.

“Well, what information does CORI give you?”

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It is a situation that we have discussed a number of times on the Boston Criminal Lawyer Blog. Yet, particularly since the initial response to getting such a care package from the government is usually panic, it is worth revisiting.

First of all, the good news. What you have received and believe is a criminal complaint is probably not really a criminal complaint.

Although it is not a criminal complaint, it is an extremely important piece of paper that must be treated as such. What you have probably received is a summons to go to court in connection with criminal allegations that are, indeed, being made against you. The summons is likely one of two kinds. You are being summoned to either an arraignment or a clerk magistrate’s hearing.

If you ignore this piece of paper, as further discussed below, you risk being arrested. Plaintly put, you are being summoned to appear in court. Should you ignore or forget about the date the sumons reflects, a warrant will likely be issued by the court, mandating your arrest.
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It happened again last week in the south of Boston island known as Cape Cod. Two gentlemen were arrested for armed robbery of a taxi driver in Oak Bluffs. Soon, they were facing the halls of Justice in Edgartown after the brief investigation. One went to regular court. One met his attorney in Juvenile Court.

It is not a terribly unusual occurrence in today’s criminal justice system. In fact, this daily blog has posted various such stories over the past year.

I started handling cases of adult/juvenile “team-ups” back in Brooklyn when I was a prosecutor. At the time, juveniles became the drug dealer of choice because of a belief in the trade that kids would not be prosecuted. So, they would be paid the “big bucks” to do the actual hand-to-hand sales. Whether the logic was correct then or not…it is not correct now.

Juveniles get prosecuted today and said prosecution can last a lifetime.
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As we close the lid on this three-part Attorney Sam’s Take posting on Disorderly Conduct, we look at where I come in. Along with other criminal defense attorneys, I stand ready to represent a client facing such charges. When is the best time to contact me? Immediately. In fact, particularly if the police approach is merely signalling an upcoming or ongoing investigation, before you even engage in a discussion with the officer. Unfortunately, in most cases, I am summoned after the confrontation has taken place, sometimes leaving the addition of a Disorderly Conduct charge to whatever issues existed before the confrontation.

First of all, understand that, while it is the police officer who locks one up, or seeks a complaint against you, it is the prosecuting attorney, the assistant district attorney, who carries your prosecution from there. Prosecutors vary in terms of experience, of course, but most are well-trained and have the resources of the Commonwealth behind them for advice, investigation and tactics. Back in that “perfect world” I mentioned yesterday, the prosecutor always follows his or her oath…to “do justice”.

As I also mentioned, this is not that perfect world.

Like the police officer, the prosecutor did not wake up in the morning and engage in a search to find innocent people to keep in jail. Most prosecutors earnestly do their job. However, they have their own biases and these biases usually include a belief that the arresting officer’s word is gold and, if you were arrested, you are guilty. Tempered with those beliefs, of course, is the fear that I have mentioned many times that, if simply released with no attention, you may go out and kill somebody”, thereby landing them and their boss, who sits in a political position, in the papers the next day and, potentially without a job.
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Ok, you are sitting in your home around Boston. You hear a police car, sirens screaming, speeding down the street. You momentarily jump because of that old warrant you used to have pending against you. Then, you relax; you remember that, after you started reading this daily blog, you contacted an experienced criminal defense lawyer and cleared the warrant, and the case attached to it,up.

But then, you remember that said nasty stain still exists on your otherwise clean criminal record, or, as it is more commonly called, “CORI”.

What to do?

Is there anything you can do?

Well, there might be, depending on the circumstances. Massachusetts law has changed over the years regarding the possibilities and procedures of the expungements (erasing) and sealing of criminal records.

Totally erasing any sign of a criminal matter is not generally possible in the Commonwealth. That solution is basically left for instances where the wrong person was arrested.

No, that does not mean if your defense in the case was “I didn’t do it”.
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About an hour and a half west of Boston, there is a town called Holyoke. In Holyoke, Julius T., 29 (hereinafter, the “Defendant”) got arrested early evening on Tuesday. He is said to have assaulted a woman, kicked a police officer and thrown himself down a flight of stairs.

His story is not only of note because of his alleged rather unusual actions, but also because he is an example of how, in the System, one’s past always catches up.

The police were dispatched at 5:00 p.m. on an “unknown medical call”, according to Police Chief Anthony Scott. When they got there, the officers heard screaming from inside the address and people were gathered outside.

The officers entered and say they observed the Defendant at the top of the staircase yelling at someone inside a room.

The officers tried to calm the Defendant down. This attempt failed. So, they approached and handcuffed him after a brief struggle, according to police. The Defendant, however, continued to yell, scream and argue with others inside the residence. He apparently also told the officers that he was wanted in Florida, police said.

To help bring tranquility to the scene, another officer came to the bottom of the staircase and attempted to calm down a woman who was also yelling and screaming, according to police. Then, when Officers attempted to escort the Defendant outside, police say the Defendant allegedly threw himself down the stairs.
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