Boston Criminal Lawyer Blog

April 11, 2018

SOME MAJOR CRIMINAL JUSTICE LIES YOU HAVE BEEN TAUGHT

Okay… maybe that is a little misleading. Maybe they weren’t really lies.

Perhaps, when you were taught them, your teachers and parents thought that they were actually true. Maybe they even were true at the time.

But not any more. Not really.

Attorney Sam’s Take On Criminal Justice Reality

Time and again I am saddened by clients who thought they were playing “by the rules”, actually were playing by those rules and yet the system made them suffer for it. Here are a few examples of what I mean:

If you always do what you feel is the morally correct thing to do, you won’t get into trouble.

While it would be nice if that were true, it is not always true. First of all, it completely ignores that different people feel that different things are the “right thing to do”. I am not even referring to those of us who are deranged or otherwise have a broken moral compass. Sometimes even doing what seems to be obviously the right thing to do can get you in trouble. For example, the law may not agree with you in terms of the right thing to do.

I once handled the case where my client was trying to help a child, who was a close friend of his young daughters, in a very physically painful situation. The girl was young and her parents where nowhere reachable. Helping her pain was easy and something that he had had to do several times for his own daughter of that same tender age. In fact, the child was begging him to provide the medication that would eliminate the pain.

April 6, 2018

THOUSANDS OF MASSACHUSETTS DRUG CONVICTIONS BEING DISMISSED…AGAIN

by Samuel Goldberg

After a week of various news stories about police officers behaving badly, not so long after my 3-parter about that not necessarily being an unusual exception to the rule…it seemed like this update might be rather timely.

According to Boston.com, what’s been forecasted for quite awhile is now apparently happening. The Supreme Judicial Court (“SJC”) has now ordered the dismissal of thousands of drug cases tainted by a former chemist who authorities say was high almost every day she worked at a state drug lab for eight years.

Yes, the old Sonja Farak (hereinafter, the “Chemist”) story again.

According to the American Civil Liberties Union of Massachusetts and Committee for Public Counsel Services (“CPCS”), the state’s public defender agency, more than 11,000 convictions in nearly 7,700 cases are being tossed. Both agencies are also asking the court to throw out thousands of other cases potentially impacted by the Chemist.

Prosecutors have also agreed to dismiss the cases tainted by the Chemist, who pleaded guilty in 2014 to stealing drugs from the lab.

The Chemist’s case is separate from another Massachusetts drug lab scandal that resulted in the dismissal of some 21,000 convictions last year. Of course, both are separate and apart from a rather infamous rogue chemist and the thousands of cases that were dismissed because of her fraudulent actions a few years ago.

Attorney Sam’s Take On An Old History Adage

There is an old saying, “Those who do not learn from history are doomed to repeat it.” In more modern terms, I used to watch the television show Twin Peaks, which featured the quote, “It is happening again.”

April 5, 2018

Subject of Hit Podcast Serial Gets New Trial

by Altman & Altman

Fans of the hit podcast Serial will be interested to learn that Adnan Syed, the man whose murder conviction is the focus of the show, has been granted a new trial. Last week, Maryland’s second-highest court upheld a lower-court’s ruling that—due to deficient counsel in his original trial—Syed deserves a new trial.

The appeals court’s three-judge panel said on Thursday that his legal counsel’s “deficient performance prejudiced Syed’s defense.” They went on to say that if the defense team had managed to contact even one witness with an alibi that could “have raised a reasonable doubt in the mind of at least one juror,” the outcome may have been different. A Boston criminal defense attorney can help you determine how to proceed if you’ve been charged with a crime.

Multiple Inconsistencies

The first season of Serial followed the investigation into the murder conviction of Adnan Syed. About 18 years ago, Syed was convicted of murdering his former girlfriend, Hae Min Lee. But the show’s host, Sarah Koenig, uncovered multiple inconsistencies in the case against Syed. For example, a woman by the name of Asia McLean should have been contacted as an alibi witness; she reported having seen Syed at the same time Lee’s murder was alleged to have occurred. However, not only was McLean not contacted by the defense team, her testimony never appeared in court.

Although Thursday’s ruling upholds a previous decision to retry Syed’s case in Maryland’s circuit court, there is a good possibility that prosecutors will appeal.

In addition to failing to contact McLean, Syed’s defense team neglected to question evidence used to trace Syed to the crime scene, including the reliability of a cell phone tower that placed him at the site where Lee’s body was found in a shallow grave.

Failure to Present an Alibi Witness

Syed’s lawyers argued that his former counsel provided ineffective assistance, primarily based on the fact that Asia McLean—who said Syed was at the library at the time of the murder—was never presented as an alibi witness. Had the jury been given this information, it is possible that a reasonable doubt may have been raised in the mind of at least one juror. Judge Martin Welch agreed, saying that Syed’s previous counsel “fell below the standard of reasonable professional judgment.”

Prosecutors have 30 days within which to appeal this decision or proceed with the new trial. Whether Syed is granted bail while awaiting his new trial has not yet been determined. A MA defense attorney can help you protect your rights if you’ve been charged with murder or any other crime. Continue reading

April 5, 2018

Can You Shoot a Home Intruder in MA?

by Altman & Altman

Due to the recent surge in mass shootings and the resulting gun debate, the term “stand your ground” has frequently been in the news. In stand your ground states, such as Florida and Texas, an individual can use force, without retreating, to protect himself against a threat. In these states, shooting an attacker would generally be considered within your rights if you feared for your safety. Massachusetts, however, is not a stand your ground state.

MA is a “duty to retreat” state, which means that you cannot use deadly force—even in self-defense—if you can reasonably avoid harm by retreating (such as running away). If, however, you are cornered, or otherwise unable to retreat, you are legally allowed to use deadly force if your life is threatened. A MA defense attorney can help you protect your rights if you’ve been charged with a crime.

Castle Doctrine

Although MA is a duty to retreat state, that duty does not apply to home intruders. Due to a MA statute called Castle Doctrine, there is no duty to retreat when the intruder is in your home. Some states apply the Castle Doctrine to areas outside of the home, such as the driveway. In MA, when the killing takes place in the defendant’s driveway, or on a porch or outside staircase, the doctrine does not apply. Nor does it apply to invited guests, even if the guest threatens the defendant’s life. There are, however, some exceptions to this rule. For example, if an invited guest is asked to leave, pretends to leave, gets a gun from his car and comes back, his status as an invited “guest” will change to trespasser.

People are allowed—by law—to defend themselves against the threat of physical harm. In fact, many people charged with murder or another violent crime often cite self-defense as the reason for their action. However, in order for this defense to work, the defendant must be able to show that a real threat existed. A Boston defense attorney can help you determine how to proceed if you’ve been charged with any type of crime.

Was Your Action Proportionate to the Threat?

In both stand your ground and duty to retreat states, the type of self defense used against an intruder must not exceed the threat. For example, if you come downstairs for a midnight snack and find an unarmed burglar in your kitchen, shooting him ten times will likely be perceived as excessive. However, if you wake up to find an intruder standing over your bed, gun in hand, you will probably be justified if you grab a gun from your nightstand and shoot him. This would also be true if it was later discovered that the intruder was wielding a fake pistol. It’s the perceived threat, not the actual threat, that matters.

If your self defense is not proportionate to the threat, this is known as imperfect self defense. No state gives you the right to attack without cause, and within each stand your ground state, a person’s right to use lethal force varies. Continue reading

April 4, 2018

“WHAT DO YOU MEAN I’M ARRESTED FOR ASSAULT AND BATTERY?”

by Samuel Goldberg

You know, words can be funny. In some arenas, they mean one thing, and then in another, they can mean something different.

This happens a lot in the practice of criminal law.

Attorney Sam’s Take On Assault And Battery

Harry Hands sees Sally Shoulder. Harry likes Sally. He calls to her and she does not answer. Perhaps she is ignoring him. Perturbed, he rather forcefully taps her on the shoulder.

Did Harry break the law?

We are talking about the potential crimes of Assault and Battery here. In Massachusetts, an assault is when you place someone in fear that they are about to be struck. The battery is when they are stuck.

Perhaps you are thinking, “Well, of course not. Sally did not incur any damage…unless she has a glass shoulder. And, in that case, still no because he couldn’t have known that.”

Your understanding would be wrong.

April 2, 2018

RETIRING BOSTON FIRE FIGHTER IS ARRESTED FOR OUI DOES NOT GO QUIETLY

by Samuel Goldberg

Hello again! How was your holiday weekend?

Well, the chances are that it was better than that of Sean Ingram, the 64-year-old retiring fire fighter in Boston and hereinafter, the “Defendant”. He is the gentleman who was arrested Thursday night after “ purposefully crashing into a state police vehicle and calling troopers “Nazis” while failing field sobriety tests”, according to WCVB ,

It was one day prior to his reaching the mandatory retirement age according to the fire department. Instead He was scheduled to retire, instead the day was spent in an Arraignment and fighting to be released on $500 bail on various motor vehicle crimes.

It was the reportedly the Defendant’s second OUI.

It was State Trooper Brendan Murphy who first pulled the Defendant’s vehicle over on the Expressway. The stated cause for the stop was reportedly that the officer had noticed damage on Ingram’s front bumper.

In his arrest report, Murphy wrote that he instructed the Defendant to pull off the highway and then returned to his own vehicle. Murphy then noted that the Defendant sped away at a high speed and swerved between lanes before exiting onto Gallivan Boulevard, stopping in front of the Walgreens. The Defendant is said to have then put his vehicle into reverse and accelerated into the front of the trooper’s cruiser.

Trooper Murphy went on to describe how he asked the Defendant if he was ok and that the Defendant shouted, “’No,’ and began yelling how I rear-ended him. I explained to him that he reversed into my cruiser, which he intensely called me a loser and began to become belligerent.”

Apparently, the trooper called for back-up. “When I reached the open window, I immediately detected the strong odor of an alcoholic beverage,” Sgt. Kevin Murray wrote in his report on the arrest. He described the Defendant as becoming “very belligerent” and “raising his voice and swearing” when asked about what had happened. He reported that the Defendant had told him that “he had attended the Bruins hockey game earlier that evening and that he had consumed some alcohol”.

March 28, 2018

Is Failing to Report Child Abuse a Criminal Offense?

by Altman & Altman

Child abuse is a crime, there is no question about that. But what about the failure to report child abuse? If you suspect that a child has been abused, do you have to speak up? Is failing to do so a crime?

It depends.

Mandated Reporters

Certain people are required to report child abuse due to their profession. In MA, these people are called Mandated Reporters. Individuals designated as mandated reporters include:

Teachers and other school personnel
Social workers
Doctors, nurses and other medical personnel
Counselors and other mental health personnel
Child care providers
Foster parents
Clergy
Medical examiners
Police and other law enforcement

If you are a mandated reporter and you fail to report child abuse, you may be charged with a misdemeanor and face a fine of up to $1,000. A MA criminal defense attorney can help you determine how to proceed if you’ve been charged with a crime.

What if I’m Not a Mandated Reporter?

In MA, as in most states, failure to report child abuse is not specifically charged as a crime. However, every case is unique. In the Larry Nassar sexual abuse scandal, for example, victims have called for the criminal punishment of the individuals who failed to report his abuse of hundreds of young girls and at least one boy.

In Michigan—where Nassar abused his victims—state legislators have proposed several bills that would increase penalties for failure to report child abuse from a misdemeanor offense to a felony with fines of up to $5,000.

But this topic begs the question – why wouldn’t you report child abuse? If you suspect that a child is being abused or neglected, reporting that mistreatment is the right thing to do. Fortunately in MA, as in most states, you can file an anonymous report. A Boston criminal defense lawyer can help you protect your rights if you’ve been charged with a crime.

What is Considered Child Abuse?

There is a lot of gray area when it comes to child abuse and neglect. For example, in 2014 a Florida mom was charged with felony child neglect for letting her seven-year-old child walk to a nearby park by himself. However, not all cases are as ambiguous. Some types of child abuse, including sexual or physical abuse and depriving a child of food and water, should be reported immediately.

In the United States, approximately four children die from child abuse or neglect every day. Most are under the age of four. Child abuse is often associated with a medical or emotional disorder, such as alcohol abuse, depression and drug addiction. In many cases, the abuser was abused as a child.

In MA, child abuse is defined as “the non-accidental commission of any act by a caretaker upon a child under age 18 which causes, or creates a substantial risk of, physical or emotional injury; or constitutes a sexual offense under the laws of the Commonwealth; or any sexual contact between a parent/guardian/caretaker and a child under 18.”

Child abuse, which can occur both at home and in other environments, includes:

exposing a child to domestic violence;
having a baby that is born with an addiction to narcotics; and
mistreatment of a physical, sexual or emotional nature.

Child neglect, on the other hand, is the failure of a parent or care giver to meet the child’s basic needs for food, shelter, clothing, supervision and other emotional needs. Continue reading

March 28, 2018

Is It Possible To Get My Bail Lowered?

by Altman & Altman

Bail is a type of payment—or the pledge to make a payment—in exchange for being released from custody. The defendant is temporarily released, but agrees to return to court when ordered to do so. As long as the defendant shows up at court as agreed, bail money is returned once the trial has concluded. If, however, the defendant does not return to court, the bail money is forfeited and criminal charges for failure to appear may apply.

Bail is not required in all cases. For minor offenses, the defendant may be summoned to court without the need to post bail. Basically, bail is an incentive to appear in court. If the prosecution is concerned that the defendant is a flight risk, bail will almost certainly be set. Further, bail amounts generally reflect the severity of the crime. A Boston criminal defense attorney can help you determine how to proceed if you have been charged with a crime.

The bail system is increasingly under scrutiny because it may prevent innocent people from getting out of jail due to their inability to afford bail. In fact, the Department of Justice has remarked that it is unconstitutional for poor people to be imprisoned simply because they cannot afford their bail. That being said, bail may also prevent dangerous criminals from being released into the general public as they await trial. In addition to these two extremes, there exists everything in between. If you think your bail is too high, can you get a judge to lower it?

How are Bail Amounts Set?

In MA, the bail magistrate sets bail. To do this, the bail magistrate considers the type and severity of the crime, along with the potential sentence the defendant is facing. The following factors will also be considered when setting bail:

Is the defendant a flight risk?
Does the defendant have a criminal record?
Has the defendant failed to show up for court in the past?
Is the defendant on probation or parole?
Does the defendant have ties to the community?
Is the defendant employed?
Does the case involve domestic violence, and if so, would the defendant’s release put the victim at risk?

Of course, many of the above factors are subjective. For example, your bail could be set high because you don’t have ties to the community and you are currently unemployed. Two strikes. If, however, you can show that you are actively seeking employment, and you moved to this community because the climate is favorable for a heath condition from which you suffer, these strikes may become less significant in the judge’s eyes. If you can provide evidence to convince the judge that you are not a flight risk, you may be able to see a reduction in bail.

You may also be able to get some relief in the form of the Eighth Amendment to the Constitution, which prohibits “excessive bail.” If you can show that the amount of your bail is excessive, based on what you can afford, the judge may lower it. Once the initial bail is set, you may have to request a second hearing to challenge the amount. A MA defense lawyer can help you protect your rights if you have been charged with a criminal offense. Continue reading

March 23, 2018

Are There Any Exceptions to the Miranda Rule?

by Altman & Altman

The Miranda rule, more commonly known as the “right to remain silent,” goes as follows:

You have the right to remain silent;

If you do say anything, what you say can be used against you in a court of law;

You have the right to consult with a lawyer and have that lawyer present during any questioning;

If you cannot afford a lawyer, one will be appointed for you if you so desire.

The rule was named for Miranda v. Arizona, a case in which the defendant provided incriminating information to the prosecution because he was unaware of his right to remain silent. Since this landmark case occurred decades ago, law enforcement must inform people of their Miranda right when they are placed under arrest.

There are, however, four exceptions to the Miranda rule. They are:

Before the Arrest

The Miranda rule applies once the individual is taken into custody (arrested), not before. However, anything you say prior to your arrest can still be used against you. That being said, police are not supposed to begin interrogations until you have been taken into custody. So, unless you are just nervously spouting off unsolicited information, you shouldn’t have anything to worry about. At this stage, the only information you are required to provide is of the identifying sort, such as your name, address and date of birth. If police ask you for additional information without first reading you the Miranda warning, they could be in violation of your constitutional rights. A MA criminal defense attorney can help you determine how to proceed if you’ve been charged with any type of crime.

Private Citizens

Not everyone involved in an arrest is subject to the Miranda rule. It applies to government and “state agents,” such as prosecutors and police officers, but what about private citizens, undercover agents and jailhouse informants? According to a Supreme Court ruling, even if these individuals are paid by the government to perform a duty, they are not subject to the Miranda rule.

Imminent Danger

If imminent danger to the public prevents an officer(s) from reading the Miranda rights before custodial interrogation, a statement obtained during the course of that interrogation may, under certain circumstances, still be used against the defendant. Such a situation occurred during the investigation into the Boston Marathon bombing, when the suspect was interrogated before receiving his Miranda rights. When a suspected terrorist attack or other imminent threat creates a sense of urgency, responses obtained without Miranda rights may, in comes cases, still be admissible in court.

Waiving Your Rights

In addition to the above situations, you can also waive your Miranda rights. Not surprisingly, this is not a recommended tactic, especially without first having consulted with your attorney. A Boston criminal defense attorney can help you determine how to proceed if you’ve been charged with any type of crime. Continue reading

March 19, 2018

COMMONWEALTH PUBLIC OFFICIALS COMMIT FRAUD, THEFT AND DRUG OFFENSES (Part 3 of 3)

by Samuel Goldberg

In finishing this 3-part-blog, we turn away from police officers and video tapes. Those specifics were not the point that I think is vital to be made.

I read on masslive.com, as well as several other venues, the story of Sonja Farak (the “Chemist”) and her tale of woe.

She is the latest Commonwealth chemist who has admitted to tainting and falsifying drug evidence to the point that thousands of criminal convictions have to be thrown out…after many folks have already spent significant time behind bars and had their lives ruined because of her.

The Chemist has admitted that she indulged a voracious drug habit for years, siphoning police evidence she was tasked with preserving and testing.

She was arrested in 2013 and pleaded guilty in 2014.

Of course, she is not the only such chemist who has gone rogue. Over the past years, you and I have discussed a number of cases where evidence had been significantly tampered with by chemists, police officers and other prosecutorial officials.