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.

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.

On Sunday, a Nevada man opened fire at a Las Vegas concert, killing 58 and wounding more than 500. Stephen Paddock used automatic weapons to shoot concertgoers from his room at the Mandalay Bay hotel. Following the massacre, police discovered .223 caliber and .308 caliber assault rifles, and other firearms that had been altered to operate as automatic weapons. Nevada had previously prohibited high-caliber automatic weapons under the 1994 Federal Assault Weapons Ban, however, that law expired more than 10 years ago.

The tragedy, which is the largest mass shooting in U.S. history, has everyone shocked, and baffled. According to his brother, Paddock wasn’t an avid gun guy. “Where the hell did he get automatic weapons,” said Eric Paddock. “He has no military background or anything like that. A MA defense attorney can help you protect your rights if you’ve been charged with a crime.

Where and how Paddock obtained these automatic weapons is as yet unknown. Some were probably purchased illegally. That being said, Nevada’s gun laws are some of the most relaxed in the nation. Gun owners are not required to register their firearms, or even to be licensed. In Massachusetts, gun laws are much stricter. In fact, MA’s gun laws are some of the most comprehensive in the country. Not surprisingly, MA’s violent crime rates are among the lowest in the country.

Are Gun Laws Really So Tough?

In order to purchase or carry a firearm in Massachusetts, a prospective buyer must be fingerprinted, receive safety training, take a test, and submit to a waiting period. In addition, law enforcement is involved in the entire process.

In MA, there are five different types of firearms licenses. These are:

  • RFID – Permits an individual to carry pepper spray or mace
  • FID – Permits an individual to carry pepper spray, mace, and long rifles
  • Class B license – Permits an individual to purchase long rifles and hand guns with no more than 10 rounds (concealment is not allowed)
  • Class A license – Permits an individual to purchase any firearm in MA, and includes concealment privileges
  • The 5th license – Permits the purchase of automatic weapons (for law enforcement only)

 

If you want to purchase a gun, you must first obtain a license of ownership. In order to obtain a license, you will have to complete an application, pay applicable fees, and be interviewed and fingerprinted at the local police department. From start to finish, it takes about 30 days. By integrating law enforcement into the process, implementing waiting periods, and making the license application so rigorous, purchasing a gun in MA is not an easy task. A Boston defense lawyer can help you determine how to move forward if you’ve been charged with a gun crime.

MA is Tough on Gun Dealers

As hard as the purchasing process sounds, MA gun laws are even more rigorous for dealers. In fact, MA has the harshest gun store laws in the country. Dealers must be licensed, maintain regular communication with the state, keep detailed records, allow inspections, and follow a long list of security regulations. Continue reading

Dr. Roberto A. Fernandez was sentenced to 97 months in prison for prescribing medically-unnecessary drugs to patients in exchange for financial kickbacks. In addition to his prison sentence, Fernandez was ordered to pay $4.8 million in restitution after he plead guilty to wire fraud and conspiracy to commit healthcare fraud.

Fernandez referred patients to pharmacies to obtain medications they didn’t need. In some cases, the prescribed drugs were contraindicated with other drugs the patients were already taking. As a thank you for the uptick in referrals, pharmacy owners rewarded Fernandez with kickbacks in the form of extra pain pills and fraudulent Medicare billing for services that never took place. Fernandez amassed an extensive network of co-conspirators; the fraudulent billing and pain pill scheme involved six health care facilities and racked up more than $20 million in false expenses.

According to the Department of Justice, Fernandez received kickbacks for “signing plans of care and prescriptions for medically unnecessary home health services.” The dishonest doctor also admitted to providing “prescriptions for expensive, name brand drugs, including HIV/AIDS medications that conflicted with other HIV drugs already prescribed to the beneficiaries.” Several of the pharmacy owners and healthcare professionals involved in the scheme with Fernandez are already behind bars. A MA criminal defense attorney can help you determine how to proceed if you’ve been charged with a crime.

Six Years of Fraud and Distribution

In addition to wire and health care fraud, Dr. Fernandez was charged with:

  • conspiracy to defraud the U.S. government by paying and receiving healthcare bribes and kickbacks.
  • conspiracy to distribute controlled substances.
  • distribution of controlled substances.

According to law enforcement, the fraudulent Medicare claims and illegal prescription of controlled substances, including opioids, had been going on for at least six years.

Fernandez is Not Alone

This latest health care scheme comes on the heels of a $1.3 billion national health care fraud crackdown, which involved 412 defendants, including 115 physicians, nurses and other licensed health care professionals. Those charged were involved in the illegal prescription and distribution of opioids and other narcotics. Attorney General Jeff Sessions announced the largest-ever health care fraud takedown in July.

“Too many trusted medical professionals like doctors, nurses, and pharmacists have chosen to violate their oaths and put greed ahead of their patients,” said Sessions. “Amazingly, some have made their practices into multimillion dollar criminal enterprises. They seem oblivious to the disastrous consequences of their greed. Their actions not only enrich themselves often at the expense of taxpayers but also feed addictions and cause addictions to start. The consequences are real: emergency rooms, jail cells, futures lost, and graveyards.  While today is a historic day, the Department’s work is not finished. In fact, it is just beginning. We will continue to find, arrest, prosecute, convict, and incarcerate fraudsters and drug dealers wherever they are.”

Penalties for Health Care Fraud

A conviction of federal health care fraud is a serious offense that may result in the following penalties:

  • Up to 10 years in prison for each offense
  • Up to 20 years in prison if the fraud resulted in serious bodily injury
  • Up to life in prison if the fraud resulted in death
  • Up to $250,000 per offense for false Medicare or Medicaid claims, up to billions for organizations that engage in multiple counts of health care fraud
  • Restitution to pay back money that was illegally obtained

A Boston criminal defense attorney can help you protect your rights if you’ve been charged with a crime. Continue reading

If you are caring for a child – whether your own or someone else’s – you have a legal responsibility to keep that child away from unreasonably harmful or dangerous situations. If you put a child in an unhealthy, inappropriate, or dangerous situation, or you don’t intervene to help remove a child from such a situation, you may be charged with child endangerment. In MA, child endangerment is a serious crime with equally serious consequences.

Children are vulnerable. As adults, it is our responsibility to protect them to the best of our abilities. Child endangerment, abuse, and neglect are punished harshly, and being convicted of any of these crimes can bring a lifetime of consequences. In addition to imprisonment and hefty fines, crimes related to child welfare can ruin your reputation, and negatively impact your ability to get a job or find housing for the rest of your life. Prosecutors can be especially aggressive when it comes to child endangerment cases; nobody wants to go easy on someone who harmed an innocent child. For this reason, child endangerment charges often get blown out of proportion.

OUI with a Child in the Vehicle

One of the most common types of child endangerment charges involves a parent who is arrested for OUI with a child in the vehicle. We all know that drunk driving is illegal, and that doing so with a child is even worse. But people make mistakes…even parents. Let’s say, for example, that Stacy goes to a friend’s house for dinner. She takes her four-year-old twins, Nolan and Chloe. Stacy has two glasses of wine with dinner, knowing that she’ll be fine to drive after a big meal and the passing of several hours. But Stacy’s mom calls from the hospital; she’s having heart palpitations. Stacy scoops up the twins and rushes to the hospital. In a panic, she fails to come to a complete stop at a stop sign and gets pulled over. The officer smells alcohol on Stacy’s breath, and asks her to get out of the vehicle. Stacy submits to a breath test, which registers a blood alcohol concentration (BAC) of 0.09. Stacy is arrested for OUI and winds up facing additional charges for child endangerment.
Common Types of Child Endangerment

The point of the story above is not that Stacy didn’t do anything wrong. She did. Rather, it is to illustrate that even a good parent can make a mistake that endangers a child. In the above case, the prosecution may paint a very different picture of Stacy. Over-dramatizing child endangerment cases is very effective for the prosecution. For this reason, it is crucial to work with a highly-experienced Boston criminal defense attorney if you have been charged with child endangerment or a similar crime. Common types of child endangerment include:

  • OUI with a child in the vehicle
  • Failure to properly secure a child in a moving vehicle (car seat, seat belt, etc.)
  • Exposing a child to drug use, manufacturing, or distribution
  • Failure to properly secure firearms in the presence of a child
  • Leaving a young child without supervision
  • Engaging in sexual activity in the presence of a child

The interesting thing about child endangerment laws is that they are intended to punish behavior that could harm a child, but a child doesn’t need to be harmed for a conviction to occur. For example, if loaded firearms are kept in reach of a child, the responsible adult could be convicted of child endangerment even the child never touched one of the firearms. Of course, cases involving actual harm will generally be punished more severely than those that do not result in injury. A MA defense attorney can help you protect your rights if you’ve been charged with child endangerment.

Intent is also considered when determining punishment in a child endangerment case. If the adult did not intend for the child to be exposed to the harmful situation, the penalties will likely be less severe than if he had. That being said, intent is not necessary to convict someone of child endangerment. As long as a reasonable person would have realized that the situation was dangerous, that is generally enough to convict. For example, leaving a young child in a car unattended can be a form of child endangerment. However, leaving a child in an air-conditioned car for five minutes is very different from leaving a child in a hot car for 45 minutes. In the first scenario, a reasonable person wouldn’t necessarily consider the situation to be dangerous, whereas most reasonable people would find the second scenario to be dangerous. Continue reading

Following a criminal conviction, individuals are sometimes released back into the community with specific restrictions. This system – known as probation – may be served in lieu of, or in addition to, time behind bars. With probation comes an extensive list of potential restrictions, including regular meetings with a probation officer, drug testing, and even location monitoring via an electronic device. The particulars of your case, including past criminal history, will factor largely into the terms of your probation.

But What if I Violated these Terms?

It shouldn’t come as a surprise that the punishment for violating your probation terms will depend on the severity of that violation. For example, if you missed a meeting with your probation officer because you overslept, you might just get a slap on the wrist. However, if this is the third time you “overslept,” or if your violation was more serious, the punishment may be significantly harsher. Below are some potential consequences of violating your probation:

 

  • You get off with a warning. If your violation was unintentional, or relatively minor, you may just get a warning from your probation officer. However, the warning will likely come with a notice that subsequent violations will subject you to harsher punishments. A MA criminal defense lawyer can help you protect your rights if you’ve violated the terms of your probation.
  • You get ordered to appear at a probation hearing. If your violation is more severe, or you’ve received multiple warnings in the past, you may find yourself at a probation hearing. At this hearing, a judge will determine whether you did, in fact, violate your probation. If a violation occurred, the judge may add more restrictions to your terms, extend the period of your probation, or outright revoke it.
  • You get ordered to pay fines. You may have already paid fines, but a judge can order you to pay additional fines for violating your probation. A Boston criminal defense attorney can help you determine how to proceed if you’ve violated your probation.
  • You get sent to jail or prison. Depending on the severity of your violation, and the severity of the underlying offense, you may find yourself behind bars. Even worse, your jail sentence may be longer than it would have been for the original crime.

Common Conditions of Probation

Probation conditions can be few, or they can be extensive. Judges will often tailor the conditions to match the crime, as well as the individual’s history. Common conditions include:

  • Rehabilitative terms, such as group therapy, random drug testing, and avoidance of certain people
  • The payment of fines and court fees
  • The payment of victim restitution
  • The completion of community service
  • The requirement to not commit another crime
  • The requirement to obtain employment or education
  • Compliance with court orders
  • Regular visits with a probation officer
  • The requirement to not leave the state
  • The requirement to not possess any weapon
  • Prohibition of all drugs and alcohol

Common Probation Violations

There are a million ways in which an individual can violate his or her probation. Some of the most common include:

  • Failure to appear for a scheduled court hearing or appearance
  • Failure to report for a scheduled meeting with your probation officer
  • Failure to pay required fines or victim restitution
  • Traveling across state lines without permission
  • Visiting people or places you are prohibited from visiting
  • Drug use, possession, or sale
  • Committing another criminal offense
  • Getting arrested

Continue reading

Most people have heard the term sexting by now. It’s a play-on-words, combining “sex” and “texting” to refer to sending and receiving lewd or suggestive images via smart phone or another electronic device. When sexting occurs between two consenting adults, no criminal offense is committed. However, when one or more of the parties involved is a minor, it’s an entirely different story. Criminal charges may even apply when both parties are under age.

Last week, the Washington State Supreme Court upheld a conviction for sexting-related child pornography charges. At first glance, that statement may not seem particularly unusual, but the details surrounding the case are anything but usual. At the time of the incident, the defendant was a minor. He also has Asperger’s syndrome, and the incriminating sext was a photo he sent of himself to an adult woman.

In 2013, the then 17-year-old boy texted a picture of his penis to a 22-year old woman. The photo was accompanied by explicit, and unsolicited, statements. The woman reported the texts and several harassing phone calls to the local Sheriff’s Office, and the boy was subsequently charged with distribution of child pornography, a felony. A MA defense attorney can help you protect your rights if you’ve been charged with a crime.

It is illegal to deal in any depiction of a child engaged in conduct that is deemed sexually explicit. Washington state law defines sexually explicit conduct as anything that depicts “genitals or unclothed pubic or rectal areas of any minor, or the unclothed breast of a female minor, for the purpose of sexual stimulation of the viewer.”

“Subjecting of all Children to Felony Prosecution”

The state supreme court ruled that to “destroy the blight of child pornography everywhere, from production of the images to commercial gain” requires legislation that also pertains to minors who take explicit photos of themselves. Critics worry that, in the future, similar rulings will be extended to teens who consensually sext each other, and that this interpretation of the law will lead to the “subjecting of all children to felony prosecution.”

In fact, consensual teens have already been criminally prosecuted for their sexts. In 2015, a Colorado school found itself at the center of a major scandal. Dozens of students were sending lewd texts, many of which appeared to have been taken at the school. George Welsh, Superintendent of the scandalized Canon City Schools, was not surprised. “There isn’t a school in the United States probably at this point that hasn’t at some point dealt with the issue of sexting,” said Welsh. A Boston criminal defense lawyer can help you determine how to proceed if you’ve been charged with any type of crime.

The debate over criminalizing sexting focuses on the real purpose of child pornography laws, to protect children from unsavory adults. But if sexting between two consenting teens turns into a crime, what message are we sending? According to David Ball, law professor at Santa Clara University in CA, such rulings go against the basic tenets of criminal law. “You can’t be an accomplice to an act that has you as the victim,” said Ball, referring to two teens who were both charged with endangering a child. They also happened to be the victims in each others’ cases. Continue reading

In the past, arson referred to the crime of burning someone else’s home or property while the structure was occupied. It was intended to protect the lives of anyone who happened to be inside the burning structure. However, the modern definition of arson is quite different. Today, the property being burned no longer has to be a home with people inside. It doesn’t even need to be a structure. Burning another’s land, vehicle, or other personal property without their permission is an act of arson.

To prove arson, the prosecution must be able to show that you intended to burn the property, and that you acted without permission. Intention is important, because accidentally burning someone else’s property does not constitute arson. If you purposefully set fire to a neighbor’s fields, this is arson. If the fire was accidental, it is not. In some cases, reckless behavior that results in the burning of another’s property may lead to arson charges.

You can also be charged with arson for setting fire to your own property, but only under certain circumstances. The act must be committed for fraudulent purposes. If you purposely burn down a dilapidated shed on your property, this is not arson. But if you burn down your garage to collect insurance funds, this is arson. A Boston criminal defense attorney can help you protect your rights if you’ve been charged with arson or any other crime.

Penalties for Arson in MA

As with any crime, the penalties for arson are largely dependent on the severity of the crime, and prior criminal history. Arson can be a misdemeanor or a felony, depending on several factors. Felony arson generally involves setting fire to a home or dwelling while people are inside. If convicted of arson in MA, you may be facing:

  • Up to one year in jail, for misdemeanor offenses.
  • A prison sentence of between one and 20 years, for felony convictions.
  • Up to life in prison, if the crime was intended to kill or harm occupants of a dwelling.
  • Fines of between a few thousand dollars and fifty-thousand dollars, or more.
  • Restitution (a financial payment intended to compensate victims for any damages suffered).
  • A probation sentence of at least 12 months, and up to five years.

Section 111A of Massachusetts General Laws Chapter 266 holds that:

Anyone who intends to injure, defraud or deceive any insurance company shall be punished with a prison sentence of not more than five years, or by imprisonment in jail for not less than six months and not more than two-and-a-half years, or by a fine of at least $500 and not more than $10,000. A MA defense attorney can help you determine how to proceed if you’ve been charged with arson. Continue reading

Stalking and harassment crimes generally involve two people who know each other, often intimately. For this reason, when a person is facing charges for stalking or criminal harassment, he may have been unaware that his behavior had crossed into criminal territory. If you feel jealous or betrayed, you may act out of character. But when these actions cause another to suffer emotional distress, you might find yourself behind bars.

Elements of Stalking

To justify a stalking conviction, the following circumstances must have been present:

  • The defendant acted willfully and maliciously.
  • The defendant knowingly engaged in a series of acts.
  • The acts were directed at a specific person.
  • The acts caused that person to experience serious alarm.
  • The acts would have caused any reasonable person to suffer emotional distress.

Stalking can be done in person, over the phone, or through any mode of communication, including email, text and social media, or even by fax. When stalking occurs over electronic channels, it is known as cyber stalking. A MA defense attorney can help you determine how to proceed if you’ve been charged with stalking or criminal harassment.

Stalking Doesn’t Always Start as a Criminal Act

Stalking and harassment typically originate from less-threatening behaviors. Take the following scenario as an example: Gretchen ends her relationship with Tim. She just doesn’t feel the same way about him anymore, and – honestly – she’s been seeing another guy. Tim sends a text to Gretchen, asking her to reconsider. He knows about Jack and forgives her for her infidelity. “Let’s just start over,” he pleads. Tim doesn’t hear back from Gretchen, so he sends a lengthy email apologizing for all the things he did wrong during their relationship, and a voice mail asking her to have dinner with him to discuss and “patch things up.” Although Tim’s communications were directed at a specific person, and occurred in a series, they weren’t malicious, and they probably didn’t cause Gretchen any serious alarm.

But several days pass and Tim doesn’t hear from Gretchen. He starts to get angry. He fires off more emails and texts, but this time he accuses Gretchen of being the reason for all of their problems. He even starts calling her nasty names. Gretchen still doesn’t respond. On day three, Tim can’t take the silence anymore. How can she just ignore him, just toss him out like a bag of garbage – after everything he has done for her! In his blinding anger, Tim begins to send threatening messages. He tells Gretchen that if she doesn’t call him back soon, he’s going to kill Jack. Tim begins visiting Jack’s place of employment. He doesn’t do anything serious – just sits in his car and watches Jack eat lunch. He knows Jack sees him, and hopes the home wrecker gets the point. A few days later, the police show up at Tim’s house, arresting him on stalking charges. Continue reading

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