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?

At his trial, his attorney wanted to argue that it was a necessity for him to get out from the ravaging storm and protect himself from the cold. He requested that the court, in its telling the jury the law it must follow, given an instruction on “Necessity”.

In requesting a jury instruction on the necessity defense, the attorney argued that his client’s conduct was justified as the only alternative for a homeless person facing the “clear and imminent danger” of exposure to the elements during periods of extreme outdoor temperatures.

Prosecutors argued that the Defendant had presented no evidence that he was unable to rent an apartment outside of Great Barrington.

The trial judge denied the request, finding that the Defendant had alternatives to trespassing, including motels, hotels and the police station. The judge said the evidence was lacking on his inability to rent a hotel room on particularly cold nights.

The Defendant had said, however, that he had stayed at the local homeless shelter during the winter of 2007, but he was told to leave because of “certain issues”.

The jury convicted the Defendant who was sentenced to jail time.

The Defendant then appealed his conviction…and won.

In a unanimous, 7-0 ruling, the SJC threw out the six 2014 trespassing convictions. The court said the necessity defense allows a jury to weigh the plight of a homeless person against any harm caused by a trespass before determining criminal responsibility.

“Our law does not permit punishment of the homeless simply for being homeless,” Justice Geraldine Hines wrote for the court. “Allowing a defendant to defend his trespassing charges by claiming necessity will not, of course, condone all illegal trespass by homeless persons.”

“The necessity defense provides a critical safety valve, which allows juries to acquit individuals when they determine that following the law would cause more harm than breaking it,” said Jessie Rossman, a staff attorney with the American Civil Liberties Union of Massachusetts.

Attorney Sam’s Take On When Hypocrisy vs. Reality – Part Two

True, this case, at face value, seems to have very little to do with the matter we discussed on Friday.

As far as today’s story is concerned, the immediate watchwords are criminal appeal.

Unless a he pleads guilty and waives various rights, any defendant who does not feel that he/she got a fair trial has the right to appeal to a “higher” court.


“Sam, that’s good to know and all…but what does this story have to do with Friday’s story in terms of hypocrisy and reality?”


Well, there is a list of things which you should know about the criminal justice system which differ from what you would expect reality would dictate.

These cases will help me make the point…

In my next blog.



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