Even a Boston criminal lawyer sometimes has to be reminded to do his homework sometimes. It would seem that it is a lesson that the Boston Globe might want to observe as well.

Over the last two days, I have been unfairly blasting WBZ political commentator
Jon Keller. Among other things, Mr. Keller does a daily short broadcast, called “Keller At Large” on the station (1030 on your AM dial) about an issue of the day. The other day, what I heard offended and angered me for reasons that will soon become apparent. Immediately, I took to attacking the view put forth as well as its messenger, Mr. Keller. However, it
turns out that Mr. Keller was simply discussing the recent findings of a Boston
Globe Spotlight Team. Their findings, as reported, would be enough to enrage
anyone…even a longtime professional commentator like Mr. Keller.

The Globe’s “findings” would be enough to lead almost anyone to the wrong
conclusion. Mr. Keller does not practice criminal law in the Commonwealth
and so simply discussed the findings as presented. Realizing that my attacking
him was unfair, I have removed the two blogs and offer my apologies to him.

One would imagine that a newspaper with the reputation the Globe enjoys to have
done its own homework , asking all the pertinent questions. This is part of being “reliable”. In this case, it would appear that it did not do so. Instead, it printed a very misleading and misinformed story which has created quite a stir.

The subject matter is Massachusetts drunk driving cases. The story, apparently
based primarily on blind assumption that judges in the Commonwealth find 80% of
drunk drivers not guilty.

Always happy to throw alittle dirt into the face of criminal defense attorneys,
the Globe created the picture of defense attorneys handling OUI cases tend to
rush their cases to bench trials (trials without a jury) because judges seem to
be letting everybody off…at least in drunk driving cases…no matter the

While it may make for nifty headlines and make good reading for those who
“always knew” that the Legion of Satan (aka criminal defense attorneys) and
those biased and liberal judges who delight in releasing the guilty so that
they may prey on the innocent once again, the Globe’s finding is misleading to
say the least.

It is also factually wrong.

As I may have mentioned one or three hundred times in earlier postings, I have
been practicing criminal law for over a quarter of a century. I have handled
my share of drunk driving matters. The fact is that lawyers generally do not
favor bench trials over jury trials. This is because Judges have a greater
tendency to find guilt. There is one exception to this, however, which I will
reveal shortly.

Most criminal trials are held before a jury and it is common knowledge that
defense lawyers generally prefer a jury trial because they have a better, not
worse, chance with a jury than a judge. In these cases, the jury is the fact
finder. In other words, the jury determines guilt or innocence. The judge
neither convicts or acquits. He or she merely sentences.

Additionally, most criminal cases end in a plea bargain, not a trial. This is
particularly true of first time drunk driving cases because of the applicable
statute. By the way, most plea bargains result in a conviction. In no case do
they end in an acquittal.

“But, Sam, what about the 80% in bench trials?”

The question the Globe seems to avoid asking is how many actual cases does this
? Hundreds? Thousands? Three?

Given that most criminal cases end in a plea bargain or jury trial, the number
left over to go to a bench trial is fairly small.

A seasoned defense attorney would only bring such a case to a bench trial if
the case was a “slam dunk” for the defense, usually as a matter of law.

You see, there are elements to every crime which the government must prove
beyond a reasonable doubt in order to convict a defendant, When there is no
evidence as to one of the elements, the prosecution must fail as a matter of
law. These are the cases to be brought before a judge and not a jury.

The fact that 20% of these cases end up with a conviction means simply that the
attorney involved miscalculated because the judge was able to find a way to

“Still, Sam, 80% is a pretty striking number”.

Is it? What if we were talking about merely 10 cases? Would it really shock
you to learn that out of the hundreds if not thousands of drunk driving cases
the Commonwealth handles in a year that 8 matters ended in an acquittal? I
would think not. You must remember that these cases would not be brought to
trial without a jury unless the defense attorney considered the case virtually unlosable
as a matter of law.

What the Globe has done, whether by accident or on purpose, is to mislead the
citizenry as to the facts of the matter.

There are many real problems in the criminal justice system. If the Globe is
really interested…perhaps some time with an experienced criminal defense
attorney might be in order.

In the meantime, I will be sure to do my homework next time.

Maybe the Globe will too.

To read or hear the article upon this blog was based, please go to
or read the Globe Spotlight articles this week.

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