Massachusetts Criminal Lawyers Blog

Yesterday, the state's highest court issued a significant decision regarding license losses for breath test refusals. Until yesterday, it had been understood that a person who refused a breath test after his/her second arrest for OUI would have his/her license suspended for 3 years. The court essentially reduced that to 180 days.

This decision only applies to those people that had their first offense "continued without a finding." If a person was actually found guilty of the first offense then this ruling will not change the status of their license loss.

In fact, this was the central issue in the case before the high court. The law says that there shall be a 3 year loss of license for those who refuse the breathalyzer after having been previously convicted. The court held that since a continuance without a finding is not a conviction, the 3 year license loss does not apply. The maximum loss of license, therefore, is 180 days.

FACTUAL EXAMPLE BEFORE THIS RULING:

Citizen A admits to sufficient facts for a First Offense OUI in 2010 and the case is continued without a finding.

Citizen A is arrested for OUI in June 2011 and refuses the breathalyzer at the police station.

Citizen A is convicted of the Second Offense OUI in July 2011.

Loss of License:
- 3 years for refusing the breathalyzer. No hardship license available.
- 2 years for the conviction of Second Offense OUI. Hardship after 1 year.
- Total loss of license with hardship 4 years.
.
THE CHANGE:

Loss of License:
- 180 days for refusing the breathalyzer. No hardship license available.
- 2 years for the conviction of Second Offense OUI. Hardship after 1 year.
- Total loss of license with hardship 1 ½ years.

THE DIFFERENCE:

2 ½ years without a license.

Anyone that has a situation even close to that of Citizen A should contact an experienced criminal defense attorney for assistance in license restoration.

Continue reading "New Decision Reduces Loss of License for Refusing Breathalyzer on Second OUI Arrest" »

OUI Alcohol, Operating to Endanger, and Drug Possession charges were filed in Lynn District Court against a Winthrop man after the Swamscott Police found him outside of his wrecked pickup truck on Wednesday.

I mention this simple case from a Swamscott Patch article because it illustrates the common situation of having a case that has some good facts that get dragged down by some not-so-good ones. The article says that Salvatore Lamattina hit a utility pole with his pick-up truck on Stetson Drive in Swamscott on April 25. When the Swamscott Police arrived, they saw that the driver's-side front tire and suspension had separated from the vehicle. Lamattina was standing outside of his truck and was unsteady on his feet. Lamattina told the officers that he crashed because the wheel had fallen off the vehicle. A hand-held field breathalyzer showed Lamattina's blood alcohol level at .06.

So far, so good for the defense. 1) The legal alcohol limit is .08; 2) An unexpected mechanical malfunction should not result in a conviction for OUI or Operating to Endanger; and 3) A person recently involved in a crash of that nature could reasonably be expected to be shaken up and unsteady.

But there is more. In addition to telling the police about the wheel falling off (which they did not believe because of certain skid marks), Lamattina told them that he had taken the drug Suboxone earlier for a leg injury. Even if your blood alcohol level is below the legal limit, you may still be convicted of OUI especially if you have mixed drugs with alcohol and the consumption of the mixture negatively affected your ability to operate safely. Lamattina's statement gave the prosecution all they need to prove mixing drugs and alcohol.

In addition, while having three cold beers and three empties in the truck may not negate the relatively low alcohol level, it does add a certain negative impression. On top of that, the police found pills in the car that they claimed were the drug Methadone. If he were not authorized to have them, he has a problem with the drug possession charge, and if he were authorized to have them, a jury may understand the meaning that goes along with Suboxone and Methadone - treatment for heroin addiction.

The drugs may not have had anything to do with his driving, or may have had a lot to do with it. Either way they just make what could have been a good defense case a much more difficult one.

Lastly, I should note that the results of a portable breath test are generally not admissible at trial. Only breath tests properly administered on properly tested and maintained breathalyzers are admissible. So, even that positive factor is no help.

All is not lost, but Lamattina has a challenging road ahead. He will require an experienced criminal defense attorney to steer the way.

Continue reading "OUI, Operating to Endanger, and Drug Possession Case has Pros and Cons" »

Leaving the Scene of Property Damage. That is the charge that would be brought against the driver of a Jeep that hit a utility pole in Stoughton on Friday. That is, if the police are able to find out who was driving. It appears that the driver parked the jeep after the crash and left on foot.

This short story from the Stoughton Patch/Journal has some interesting legal issues. First of all, the police will undoubtedly find the owner of the Jeep and ask questions. He/she will be in the position to make or break the prosecution's case at this point. Admit and you will be charged. Decline to speak (as is your Constitutional right) and the prosecution will have no evidence. Being the owner of the car does not mean that you drove it.

The other issue is highlighted by two sentences in the article: "[E]ven if found by police, the driver may not be arrested on a charge of leaving the scene of an accident as the property damage involved does not make it an offense to be arrested for. . . . Such a charge would be filed by a summons." I am not aware of any law that distinguishes between property types making an arrest allowable for one and not the other. I do know, however, the reason for the comments.

The law applicable to the charge of leaving the Scene of Property Damage states: "[a] summons may be issued instead of a warrant for arrest upon a complaint . . . if in the judgment of the court . . . there is reason to believe that the defendant will appear upon a summons." The article implies that the police would not be allowed to arrest the driver. This is not the case. If the police find out the identity of the driver, they will bring an application for a criminal complaint to the court. The court will then decide whether to issue a summons or a warrant.

A summons would be sent to the driver's address and he/she would be ordered to appear in court. A warrant would give the police the authority to go and arrest the driver and bring him/her to court in handcuffs. According to the statute, a warrant would be issued if it appeared that the driver would not obey the summons to appear on his/her own. As it stands now, in this case, the driver fled the scene of the accident, hence his/her reliability may be in question.

There is another important issue that arises when the court determines that a summons is sufficient. If the driver is not arrested, for what event will the driver be summonsed to appear? In most cases, where the crime is a misdemeanor, no arrest has taken place, and there are no imminent threats, the accused has a right to be summonsed for a hearing to determine if the complaint should issue at all. [This is true only if there is no imminent threat of a) bodily injury, b) commission of another crime, or c) flight from the commonwealth]. Sometimes, however, the summons is mistakenly issued for an arraignment.

Hearing vs. Arraignment. This is a very important distinction. When someone is arraigned - has the charges read in court - that information is entered into the Massachusetts Board of Probation data base. Although technically not a "criminal record," unless there is a conviction, it is an entry on one's "probation record." Even if acquitted in the future, the charge will remain on this record for a lifetime (with few exceptions).

A summons for a show cause hearing is another matter. Since the charge is not read in court, there is no entry on the Massachusetts Board of Probation data base. The accused has an informal hearing with a magistrate during which the police will attempt to establish probable cause for issuance of the complaint. This is not a high standard. Even if there is probable cause, however, it is very important to appear and defend oneself with an experienced criminal defense attorney at this stage. It may be possible to reach a favorable conclusion at this stage and avoid the next step - arraignment and creation of a record. Followed by criminal litigation, and possibly a trial.

As for the driver of the Jeep: if a summons is received, be sure that it is for a hearing, and show up as scheduled. Preferably with competent representation.

Continue reading "Stoughton Police Seek Driver Who Hit Utility Pole and Fled Scene" »

The Wrentham District Court will hear Receiving Stolen Property charges against a Millis man because the Walpole Police stopped him for having a loud exhaust and then searched his car. According to the Walpole Times, John Chadwick was driving on Route 27 when Officer Bob Doherty noticed his loud exhaust. After the stop, Officer Doherty found that the car had an illegally altered muffler, no inspection sticker, and "a registry document that appeared to be tampered with."

The police called a tow truck performed an "inventory search." In the console, they found a global positioning system, jewelry, and gift cards. "Doherty . . . suspected that the items were stolen when the home address programmed on [the] GPS did not match Chadwick's address." The police were later able to match the items from the console to items that had been stolen from other towns. This, of course, was "great police work" according to Chief Stillman, and was great news to the owners of the property, but what about Mr. Chadwick's defense?

"Receiving" charges are brought against people when there is no evidence that they actually stole the property in their possession. To prove the charge in this case, there must be sufficient evidence to prove that Chadwick possessed the items, and knew that they had been stolen. In this case, the police asked Chadwick where he got the property, and he said that he got them at his house, "but he didn't know who exactly they belonged to." This statement does not help Chadwick's defense, and may tip the scales on the issue of knowledge.

There is, however, more to Chadwick's defense than just proof of the elements of the crime charged. Since this offense involves possession, an experienced defense attorney will explore the possibility of a motion to suppress - essentially arguing that even if he possessed the items, the police found them by conducting an unreasonable search and seizure. If the search was illegal, the evidence will be suppressed (kept out of evidence at trial) and the case will be dismissed. Let's look at the possibilities, step by step.

Was the stop of Chadwick's car justified? The reason for the stop was an allegedly loud exhaust system. Although it may be interesting to compare his exhaust to that of at least half of the motorcycles we hear during the warm months, this avenue will probably not produce positive results for Chadwick at a motion hearing. This charge, however, is a civil violation ($50 fine), and without more, should result in the issuance of a citation only.

Was the search of Chadwick's console justified? The officer did more than just issue a ticket for loud exhaust because during the stop he discovered that the car had no inspection sticker and had a registry document that appeared to be tampered with. For these reasons he decided to have the car towed. And when the police tow a car they must do an "inventory search" of the contents to protect themselves and the tow truck drivers from claims of missing property.

The problem with this is that the lack of an inspection sticker is also a civil offense that should simply result in the issuance of a citation. So it must come down to the allegedly "tampered" registry document. I can only assume that this document was the car's registration. This issue is, however, easily resolved at a traffic stop. The police, obviously, are able to check the validity of a cars' registration. Since Chadwick was not charged with driving an unregistered motor vehicle, we may assume the registration was valid. Therefore, it may be that the police should have simply issued Chadwick two civil motor vehicle citations and let him go on his way.

Even if the police were justified in towing the car, there is one more thing. Was the search of the GPS justified? After all, the article states that the officer became suspicious about the items in the console after he compared the home address on the GPS to Chadwick's home address. Scrolling around in an electronic device (cell phone, lap top, etc.) is a "search" which must have independent justification. Without the information gained from the GPS, it may be argued that the items should simply have been noted on an inventory form and either stored for safe-keeping or returned to Chadwick on the scene.

Even cases that appear to be "open and shut" require expert legal analysis.

Continue reading "Stolen Property Charge Lodged After Routine Traffic Stop in Walpole" »

The Orleans District Court will arraign Dennis Maskell on motor vehicle homicide charges Monday morning. According to Boston.com, at approximately 5:00 p.m. on Friday, Maskell was driving his pickup truck in Orleans when his passenger, Diane Cole, fell out. The rear tire on the passenger side struck Cole and caused serious injuries. Witnesses told police that the truck had been traveling slowly. The police arrested Maskell and charged him with driving under the influence of alcohol and negligent operation. When they later they learned that Cole died in the hospital, they charged Maskell with motor vehicle homicide.

The Massachusetts "Homicide by Motor Vehicle Statute" -- Chapter 90, Section 24G - has two main provisions. The first involves operating under the influence AND operating negligently and "by any such operation" causing someone's death. This charge is a felony punishable up to 15 years in state prison. There is also a mandatory minimum sentence of 1 year. That means no deductions. One must serve every day.

The other provision is a lesser charge. It involves operating under the influence OR operating negligently and "by any such operation" causing someone's death. So the distinction is obvious. One may be charged under this provision if one is simply negligent and not under the influence, or if one is simply under the influence and not negligent. As opposed to the felony charge where one must be both. The provision provides for imprisonment in jail for up to 2 ½ years. There is no mandatory minimum sentence.

Either way, a conviction will result in a 15 year loss of license. If it is one's second OUI charge, the registry of motor vehicles will suspend one's license for life.

So which will it be for Mr. Maskell? Since the police initially charged him with OUI and Negligent Operation, it appears that he will be facing the more serious felony charge. What may be proven, as always, is a different thing all together. Without seeing more of the evidence, it is hard to judge Maskell's chances of acquittal. But, if he were driving slowly and his passenger opened the door and fell out without warning, how can that amount to negligent driving? Again, for the felony charge, there must be intoxication and negligence and one or both must have caused the death. The prosecution must prove that something that Maskell did, or failed to do, set in motion a chain of events that caused Cole's death. And if not for those actions, Ms. Cole would not have died. This case is very different from the typical case where an allegedly drunk driver crashes and kills his/her own passenger. In this case, it may be that the passenger was negligent and Maskell was not.

Furthermore, what is the evidence of intoxication? The witnesses saw him driving slowly. There is no mention of erratic operation that would indicate impairment. Perhaps he had the odor of alcohol on his breath and failed sobriety tests and/or a breathalyzer. The article says that he made bail at the police station. If this had been a second OUI charge, or if Maskell had a long criminal record, the bail would have been significant and he may not have been able to post it.

Mr. Maskell is in need of an experienced criminal defense attorney to evaluate the evidence and obtain exoneration. Many different results are possible. It could be felony homicide, it could be misdemeanor homicide, it could be misdemeanor drunk driving, or it could be misdemeanor negligent operation. Obviously, my goal would be straight acquittal of all charges. And from what I have read, that may be obtainable.

Threats charges were read against two former Attleboro High School students at their arraignment yesterday in the Attleboro District court. According to boston.com, 18 year-old Natick Sands and 20 year-old Ryan Ringuette were arrested for having a dangerous Facebook conversation.

According to the prosecutor, Sands was angry about something and said to Rinquette: "People wonder why I talk about random mass killing sprees all the time FED UP." Ringuette responded: "It's Columbine all over again." The prosecutor also alleged that Sands and Ring discussed how to attack Attleboro High School and the school police officer. Foxnews.com, however, reported that "[a] specific target was not mentioned in the discussions, and that school officials did not believe that anyone was in imminent danger."

Since both young men were on probation for unrelated charges, the judge held them without bail pending probation surrender hearings, set bails of $7,500 on the threats charges, ordered them to undergo mental health evaluations, and ordered them to avoid the Internet. They will spend at least the next two weeks in jail, where they will have no trouble avoiding the Internet.

All of that, just for having a conversation on Facebook. Of course, such conversations are not exactly private, otherwise no one would have known about this. But, there is more to their defense than a claim that they were just talking to each other. The charge of "Threat to Commit Crime" like any other charge requires proof of certain elements and there are big holes in this case.

First, there must be proof that these men expressed intents to injure a person or his/her property. The closest thing to this element would be the prosecutor's allegation that they said that they would attack the school police officer. But, if Foxnews.com is correct that no target was mentioned, then there is no case at all. There must be a victim for the crime of Threats.

Second, the threats must have been made under circumstances which would cause the victim to fear that they were willing and able to commit the crime. Again, who is the frightened victim? Even on the absurd chance that the school police officer was that victim, did he/she have a legitimate fear of being "attacked?" I doubt it.

Third and most importantly, for proof of the crime of Threats, the prosecution must prove beyond a reasonable doubt that these two men intended to have a threat conveyed to a victim. Even if a victim existed, this element is completely lacking. These men may not have been having an extremely private conversation, but they were still just talking to each other. Foxnews.com reported that a current Attleboro High School student "saw the discussion between Sands and Ringuette . . . and contacted school officials, who immediately notified the police." Overhearing planned violence, no matter how serious, does not fit the definition of the crime of Threats. If you were eavesdropping and overheard people talking about attacking you, it would not be a threat because they did not intend for you to hear it. Case closed.

If these two were actually making plans to attack the school, then their plans might be considered a conspiracy, but these are Threats charges. And they are extremely weak and unsupported by the allegations contained in news reports. They appear to be the result of overreaction to the reference to "Columbine."

I expect that an experienced criminal defense attorney may have a motion to dismiss filed by their next court date.

Continue reading "Attleboro District Court Arraigns Two Men on Very Weak Charges of Making Columbine-Style Threats" »

The South Boston Division of the Boston Municipal Court arraigned 24 year-old Kenneth Tozier Monday on a kidnapping charge and set his bail at $750.00. According to Boston.com, it all started when Tozier, his ex-girlfriend, and their child went clothes shopping for the child on Sunday afternoon. After shopping, they all got into Tozier's car and made their way to Route 93 North. During the trip, the couple got into an argument about their relationship. Apparently, the woman demanded that Tozier stop and let her out, but he refused. The woman then dialed 9-1-1 from inside the car and told the State Police dispatcher that she had been kidnapped. A trooper pulled them over near Exit 20 and eventually charged Tozier with kidnapping.

Tozier's ex told the trooper that he was driving like a maniac, reaching speeds close to 120 miles per hour. Since the trooper did not cite him for speeding, it is apparent that he was not driving anywhere near that fast at the time of the stop. This makes one wonder whether he had ever been driving that fast at all.

A kidnapping charge cannot be prosecuted in the South Boston Division of the Boston Municipal Court because the Superior Court has exclusive jurisdiction over such charges. As such, the prosecution must make a decision. Will they seek an indictment against Tozier or reduce the charge to something within the lower court's jurisdiction? I seriously doubt that the prosecution will seek an indictment against Tozier based on these facts. I don't believe that it is unusual to have a situation where people argue while driving on a highway. How much better would Tozier look if he had pulled over and left the woman and child in the breakdown lane?

If, as I suspect, the prosecution decides not to indict, what will the charge be reduced to? It does not appear that Tozier struck the woman (assault and battery) or threatened her (threats). I doubt that they would go so far as to charge him with endangering the child on the flimsy grounds that he was speeding. Tozier may be willing to accept any reduction to avoid the serious felony, but it would be interesting if he refused any reduction or amendment and forced the government to either indict or dismiss completely.

Continue reading "Kidnap Charge Brought Against Man Who Would Not Stop Car to Let Girlfriend and Child Out" »

The Quincy District Court arraigned a Boston man last week on a charge of Armed Robbery. The alleged robbery occurred on September 24, 2011. There is no explanation for the delay in the Patch article, but it may be that it took the police some time to identify the culprit.

According to the article, 28 year-old Robert Kennedy walked into a Braintree Mobil Station, showed the clerk thirty five cents and asked if there was anything that he could buy for that amount. The clerk directed the man to Wrigley's gum. Kennedy apparently wanted more, so he demanded cash. When the clerk was not forthcoming, Kennedy allegedly reached over the counter "in an attempt" to help himself. The clerk told the police that Kennedy threatened him with a syringe, but it turned out to be a cigarette lighter.

Question 1: How did the police determine that the item was not a syringe, but a cigarette lighter? If Kennedy was just arraigned last week, he must have gotten away. Perhaps he dropped the lighter in the process, or told the police what he had been holding when the police caught up to him. If he initially got away, identification will be the live issue at trial. If he did not make any incriminating statements, all the better for him.

Question 2: How did the police determine that Kennedy was involved? When a case involves identification the defense is obviously entitled to learn the method that the police used to decide who to charge with the crime. In cases like this there is often a security video recording. Although the recordings are now digital, the quality is often poor. I have had cases in which the prosecution has handed me a disc and told me that the case is "open and shut," only to find that I cannot even recognize the person that they claimed to be my client when I played it.

In addition to video recordings the police have a lot of photographs to show to victims. The police are able to access the Registry of Motor Vehicle's license photograph data base, as well as their own data base of booking photographs. It most instances, they are able to input certain characteristics (race, age, hair length, etc.) to narrow the field. A witness would then look through hundreds of faces.

If the police have an idea as to the person involved, they may put together a photographic array. This means that they assemble about eight pictures and show them to the witness. There are certain protocols that they should follow in order to make a proper identification. For one thing, the people in the photographs should have similar characteristics. It would be unfair, for example, to include their white suspect with a group of seven black individuals. In addition, the police should not suggest that they have placed a suspect in the array. In fact, the police should tell the witness that the person may or may not be in the array.

Question 3: Did the robber take any money? If he did not take money, then it is not an Armed Robbery. One most take something from another person to be convicted of robbery. If he tried, but failed, he may have committed an Attempted Robbery.

Question 4: Did the robber actually brandish the cigarette lighter in an attempt to convince the clerk to turn over cash, or did he just have it in his hand? I suppose that a lighter could be considered intimidating in some circumstances, (See Reservoir Dogs) but would a clerk really believe that he was about to be engulfed in flames unless he handed over the cash? Hardly. So we most look to see if there was an Unarmed Robbery. This would occur if one used some physical force against a person, without a weapon, in order to get property from the person. For example a debilitating punch followed by stealing from a person's pockets would add up to Unarmed Robbery. In the case at hand, if there was no use of a weapon, and no use of physical force against the clerk, there may still have been a Larceny from a Person.

The Quincy District Court set Mr. Kennedy's bail at $5,000. Since he only had thirty-five cents at the time of the alleged robbery, it is unlikely that he has access to that kind of money. He will, most likely, ask for a review of his bail in the Norfolk Superior Court in Dedham. To do this, he simply fills out a request at the Quincy District Court. The Quincy Court will forward the request to the Norfolk Superior Court, and the "Bail Review" will be arranged.

If Kennedy were arraigned in Quincy on Friday the 17th, he will most likely be seeing a judge in the Norfolk Superior Court Tuesday. (Monday is a Court Holiday). Bails reviews are heard in Room 8 of the Superior Court at 12:30 p.m. Mr. Kennedy, however, will not be physically present. He will be watching the courtroom on a closed-circuit television screen from the jail.

The Dedham District Court will hear charges against Lawrence Jackson of Dorchester as a result of a motor vehicle stop in Medfield early last Saturday morning. According to the Medfield Patch, Mr. Taylor and a female companion traveled through Dover and into Medfield at approximately 1:30 a.m. on Saturday, February 4. Apparently, the Dover Police saw them and called the Medfield Police to tell them that Jackson's car was "suspicious."

Medfield Police Officer Daniel Pellegrini spotted the car on North Street in Medfield and stopped it for "a violation related to the license plate." The Chief of the Medfield Police told the Patch that he believed that "the plate light was out." After he stopped the car, Officer Pellegrini saw an open container of alcohol inside. He also saw a knife in the glove compartment as Jackson retrieved his registration. Officer Pellegrini then asked Jackson for permission to search the car for more weapons. During the search, the police found a "blackjack." A drug sniffing dog performed another search with negative results.

The Medfield Police charged the 58 year-old Jackson with carrying a dangerous weapon, drinking alcohol in a motor vehicle, and a "number plate violation." His passenger was not charged. Let's look at this fairly simple matter from the perspective of a criminal defense attorney.

First of all, there are some questions with regard to the legality of the traffic stop. After all, when the police stop a car, they are conducting a "seizure" in a constitutional sense and the 4th Amendment prohibits unreasonable searches and seizure. If the stop of Jackson's car violated his 4th Amendment rights, then he may file a motion to suppress the blackjack and the open container. If successful, there will be no evidence to use against him, and the charges will be dismissed.

At a hearing on the motion to suppress, an experienced criminal defense attorney will ask: "What specifically did the Dover Police say was suspicious about Jackson's car?" The article did not say that Dover reported to Medfield that a car was coming with its plate light out. So what did they report? At the risk of being in some way insensitive to the parties, I am going to assume, for the sake of this discussion that Mr. Jackson is African American. If this is true, I wonder if Mr. Jackson feels that this contributed to the "suspicious" nature of his car. Mr. Jackson may feel that white person would not receive such scrutiny, and a white person driving with a license light plate bulb malfunction may not even be pulled over. If the stop was based on race, the motion will be allowed. You may be certain, however, that no officer involved will agree to that.

The police will rely on the allegedly malfunctioning plate light to justify the stop. The Dover Police, after all, may pass on information to the Medfield Police about cars traveling between the two towns without offending anyone's constitutional rights. And if a car, described as suspicious for any reason, is observed committing an actual infraction the car may stopped for that infraction. So, while it may seem a little fishy, and Mr. Jackson may feel that he was targeted inappropriately, the police will attempt to portray this as a routine traffic stop. Jackson has every right to challenge this.

There is more to it than just the stop. Even if a stop is justified, the police need additional justification to search a car. The plate light malfunction is a civil infraction. The same is true for the open container of alcohol. And having a knife in one's glove compartment is not a crime. Apparently, Jackson's license and registration were in order otherwise he would have had additional charges. As such, the police should have issued citations to Jackson for the plate light and the alcohol, and sent him on his way. That is the law.

So what was the justification for detaining the couple while the police searched the car? Well, the article says that after seeing the knife in the glove compartment, the police asked Jackson if they could search the car for weapons. The article does not say that Jackson answered "yes," but we may assume that the police will say that he did. After all, if he did not consent, then the search of the car was illegal. And if he did consent, then he waived his right to challenge its legality. This will be an issue of fact for the judge to determine in the event of a hearing on a motion to suppress.

According to the article, the drug sniffing dog was called because something that Jackson said to the police led them to believe that there may be drugs in the car. What could that be? I wonder if Jackson was really as unwise as he has been portrayed in the Patch. Was he unwise enough to be driving around with a bulb out while drinking a beer? Maybe. But, was he also unwise enough to give the police permission to search his car while knowing that it contained an illegal weapon? And unwise enough to drop hints to the police that here may be drugs in the car even though there were none?

What really happened and what may be proven in the Dedham District Court are two different things. One thing is for sure, Jackson will need an experienced criminal attorney if he expects his version of events to be established.

Continue reading "Medfield Police Stop Dorchester Man's Car and Charge him with Carrying a Dangerous Weapon " »

The Franklin Police Department has brought charges against eight young men that were present during an assault upon a Dean College student on December 2, 2010. The incident took place on the college campus and all of the men were students.

A video recording of the incident shows a man, later identified as Kirk Dudley, delivering a knock-down punch to the victim followed by several more punches as the victim struggled to get back on his feet. Dudley then removed one of the victim's shoes and swung it at the victim's head before taking off the other shoe and departing with the pair. Throughout the video other men can be heard laughing and shouting. Some of them can be seen making hand signs, smiling, laughing, and possibly taunting the staggering victim.

A December 6, 2011 article at MyFoxBoston.com, stated that Dean College learned of the incident shortly after it occurred, and on the following Monday viewed the video that had been posted on line. According to the college's official statement, "[t]hat video has provided additional insight and disturbing views of what transpired." The college also said that the nine students had been expelled, and that the investigation was ongoing.

It appears that the video not only provided insight, but also provided evidence to be used against eight men that were standing by as Dudley did what he did. Today's Milford Daily News reports that the Franklin Police applied for Criminal Complaints against the eight onlookers and that they are scheduled to be arraigned in the Wrentham District Court on April 2. The article states that all eight will be charged with armed robbery and disorderly conduct.

The Milford Daily News article raises several issues. It states that the eight men will be charged with armed robbery, but states that Dudley has been charged with unarmed robbery. This is inconsistent, and it is hard to tell which one is wrong. Without some kind of weapon, there can be no armed robbery. It could, however, be said that Dudley actually committed an armed robbery because he used the first shoe as a weapon in the process of obtaining the second one.

Since the eight bystanders did not actually commit the acts necessary for robbery of any kind, the theory must be that they aided and abetted Dudley. In order for one of them to be guilty of robbery under this theory, the prosecution must prove that 1) he was present, 2) that he knew that Dudley was going to rob the victim, 3) that he shared Dudley's intent to rob the victim, and 4) that he either helped or made himself available to help if needed.

Each of the eight stands in his own position on these issues. What if one or two were just there and remained in the background without saying or doing anything? Should they be charged with robbery? Moreover, should the one or two that made hand signs or laughed loudly be in any worse position? If so, why? Video recording the commission of a crime is not a crime. Laughing at the commission of a crime is not a crime. And failing to intervene on behalf of a helpless victim is not a crime.

Furthermore, can it be proven that any of the eight shared Dudley's intent to take the shoes from the victim? The video does start with a view of the shoes, and the MyFoxBoston.com article does say that Dudley claimed that the victim had stolen the shoes from him. This may indicate that there was some kind of a plan to get the shoes, but as a matter of proof of shared intent with regard to each of the eight, it is a stretch. And what about the man behind the video recorder? Will he also be charged with robbery? Was he there to help steal shoes, or was he just using his cell phone to record a confrontation?

The video is powerful and dangerous evidence in this case. It makes the bystanders look heartless and callous to the point that one viewing the video may become enraged at their behavior. In fact, the first comment posted in response to the MyFoxBoston.com article, appears to come from a man that works on a college campus and he said that "[i]f they were at my school, I would be fired for a baseball bat 'Beat Down' on ALL OF THEM!¬!" So, each of the eight young men, no matter what their individual involvement, will have to overcome this sentiment.

On the other hand, while the college may be correct that the video is "disturbing," a juror's gut reaction to a disturbing video must be set aside and the factual evidence must be evaluated objectively to determine if it supports the crime charged. Moreover, it must be evaluated for each individual charged. After all, these eight young men all acted differently, and they are all being charged with a life felony. (As well as the misdemeanor of Disorderly Conduct).

I have not seen all of the evidence. What I have written here is based upon the news reports and the video itself. Surely, the victim gave a statement. There may be statements from one or more of the eight men as well as statements from other witnesses. In the final analysis, the video will be the most shocking and and most probative evidence. If evaluated fairly, it should actually help exonerate some or all of the eight bystanders.

All crime is bad behavior, but not all bad behavior is crime.

Continue reading "Wrentham District Court Appearances Scheduled for Eight Men "Involved" in Dean College Beating" »

A Quincy District Court Judge released a Weymouth Police dispatcher without requiring cash bail after her arraignment Thursday for two counts of Assault with a Dangerous Weapon. The charges stem from an incident that took place on November 22. According to the Patriot Ledger, the dispatcher, Kristen Hart, was home when she was alerted to young men breaking into cars at her apartment complex. Having a valid license to carry a firearm, she went outside armed with her semi-automatic pistol. There she confronted two young men aged 17 and 18. The men ran off and called the police claiming that Ms. Hart drew the weapon from a holster on her hip and pointed it at them.

The Weymouth Police responded to Hart's apartment and she allegedly admitted to pointing the gun at the young men. In addition, the Ledger article states that "[t]he officers also found an open alcoholic drink and Hart allegedly told them she had several glasses of wine earlier." The police charged her with assaulting the two men with a dangerous weapon, but did not arrest her. She apparently received a summons to appear in court.

The lapse of time between the incident and her arraignment suggests that she was afforded a hearing before a clerk magistrate prior to the issuance of the official complaint. At that stage, the police could have gone to bat for her, but may have been concerned with the appearance of favoritism. In fact, a Weymouth Police captain is quoted in the article as saying: "We investigated the case just like any other case and we treated it like any other case." Another impediment to resolution at a pre-arraignment hearing is the involvement of civilian "victims." If such witnesses are pressing the case, the complaint invariably will be issued.

The police confiscated Ms. Hart's gun and revoked her license to carry. So, not only is Ms. Hart in a position where she must defend herself against felony charges brought by Weymouth officers that she works with, she must defend her license to carry a firearm which was likely issued by the Chief of that same department. All because she took her licensed firearm into a situation which is arguably the exact situation that the firearm is meant for - protecting oneself and one's property. Of course, bringing it with you is one thing and aiming it at a person is another. So it will all come down to the proof at trial. And, as usual, a newspaper article leaves many questions unanswered.

If Ms. Hart did have a show cause hearing, did the two young men show up and testify? What is the likelihood of them appearing at trial to testify? Will they be reluctant to testify because they may incriminate themselves for their own criminal behavior? The case would fall apart without their testimony. The only evidence the prosecution would have without them would be Ms. Hart's own admission. I doubt that the prosecution would go forward on that evidence.

What exactly did Ms. Hart say to the officers? Did she really tell them that she "pointed" the gun at the men or did she just say that she showed it to them? What else did she say? I expect that she told them why she had the gun. Could it be that the men in the parking lot were in some way threatening to her? What took place during this confrontation? What did the two men say to Ms. Hart? What did she say to them? Did the men flee right away? Or did they only flee after they saw the gun? Were they not scared of being caught breaking into cars? Perhaps they boldly confronted her and were not afraid at all until they saw the gun. How big were they? Were there more than two? Did they have anything in their hands that could be used to break into cars and/or be used as weapons.

What time did this happen? We may assume it was dark outside. Ms. Hart said she drank some wine "earlier." How much earlier? Did she have some wine before bed, sleep for some time and then hear noises outside? The article paints a picture of a dangerous combination of heavy drinking and a loaded gun. It may not be like that at all. The article, after all, does not say that she was intoxicated. Having a licensed firearm is not a crime. Having a drink in your own home is not a crime. Hence, it is not inconceivable that a person may have a drink, or even a few, and then be faced with a situation where a firearm becomes necessary. I doubt if Ms. Hart was looking for trouble. I doubt if she knew exactly what she would find when she stepped out into the dark.

Whether she was appropriately defending herself with a firearm last November may be the ultimate issue at trial. I trust that she has armed herself with an experience criminal trial attorney for that eventuality.

Continue reading "Assault With Firearm Charges Brought Against Weymouth Police Dispatcher" »

Operating Under the Influence of Alcohol and other charges were filed against a Springfield man Wednesday morning, after his arrest by the Massachusetts State Police. According to the 03 Springfield, John Maher was speeding South on Route 391 in Chicopee at approximately 1:20 a.m. when he passed State Trooper Robert Church. Church claimed that Maher's pick-up truck was traveling at approximately eighty-five miles per hour when he passed. After pulling Maher over, Trooper Church made many of the usual observations found in OUI police reports -- blood-shot glassy eyes, slurred speech, alcohol breath, and unsteadiness on his feet. Back at the state police barracks, they learned that his "license had been suspended for eight years in 2006 at the time of his sixth OUI conviction."

"Maher was booked and charged with the following offenses:
1. OUI liquor, seventh offense.
2. Operating a motor vehicle with a revoked license, subsequent offense.
3. Reckless operation of a motor vehicle.
4. Operating a motor vehicle with a license revoked for OUI.
5. Operating a motor vehicle with a license revoked as a habitual traffic offender.
6. Speeding.
7. Marked lanes violation.
8. Failure to wear a seat belt."

A bail commissioner set his bail at $20,000.00. When he appeared in the Chicopee District Court later that morning, however, his bail situation changed drastically. The district attorney asked the court to hold Mr. Maher without any possibility of posting bail. This request was based upon "dangerousness." Generally bail is set simply to ensure that the accused does not flee and returns to court as scheduled. If, however, the prosecution is able to show the court that no terms of release, will prevent the accused from being a risk to the community, the court may hold the accused in jail without bail. Apparently the court granted the prosecution's request and ordered Maher "held without bail." Maher has a right to seek a change in these bail terms by appealing to the Hampden County Superior Court.

A few observations:

A conviction for a 6th offense today would result in a license loss for life, not for eight years. In fact, even a 5th offense results in a life-time suspension. Moreover, if anyone has his/ license suspended for anything more than a first offense, the law requires the installation of an "interlock" breath test devise in any vehicle that the person drives for a period of time. If a person that is required to have such a device drives a vehicle without the device, an addition felony charge would be filed. The potential penalty would be a mandatory minimum 150 days in jail and a maximum of five years in state prison. An interlock device is required when a person actually gets a hardship license or full license back after conviction. Maher had not even gotten to that point at the time of his arrest.

It could be that Maher's priors all occurred before Melanie's Law which increased OUI penalties and added new related offenses, including interlock crimes. (Failing to have an interlock, having another person breath into the interlock, etc.) Melanie's Law was enacted in October of 2005. Maher's 2006 conviction may have involved a drunk driving incident that occurred prior to that. A person, after all, may not be punished by a law that was enacted AFTER the commission of a criminal act.

It could also be that he had not actually been convicted of OUI six times in the past. Sometimes the records make it appear that there were more convictions than there actually were. In the early stages of a criminal case the police and prosecutors always choose the highest number. Afterward, that number sometimes goes down with a more complete search of the records.

In cases where a person is charged as a multiple OUI offender, the prosecution is required to prove the prior offenses at trial beyond a reasonable doubt. The prosecution may not simply show a person's uncertified probation record or uncertified driving history to do this. The prosecutor must obtain certified documents for each alleged prior conviction. The documents must contain important detailed information related to the prior conviction, or they will not be admitted at trial. So if they obtain six priors, but only 2 are admissible, the conviction will be for a third offense. This is very important to OUI defense attorneys and their clients when one considers that the penalties increase drastically with the number of proven priors.

When a person is charged as a multiple offender he is actually entitled to two trials. At the first trial, the prosecution must prove beyond a reasonable doubt that the person was driving under the influence of alcohol prior to the recent arrest. At this trial an experienced defense attorney will be sure to prevent the jury from hearing anything about prior convictions. To allow the jury to hear this would result in unfair prejudice. After all if the jury hears of prior similar crimes, they will likely assume that the accused was guilty of the present one too. (Or reason that an error in convicting on the preset charge is not a serious error because the accused is a criminal anyway). If convicted in the first trial, the defendant would then be entitled to a second trial at which the prosecution would be required to prove that the accused had previously been convicted. Again, each prior conviction would have to be proven beyond a reasonable doubt.

Since the news articles do not indicate that Maher failed a breath test, he probably refused to submit to one. According to Melanie's Law, this alone will result in a life time loss of license whether this is his 5th, 6th, or 7th offense.

A 7th offense OUI conviction carries a minimum sentence of 2 ½ years in state prison and a maximum state prison sentence of 5 years. In order to receive a state prison sentence, the prosecution is required to present this case to a grand jury and seek an indictment. If indicted, Maher will litigate this case in the Hampden County Superior Court. It is very likely, under these circumstances that the Hampden County District Attorney will be seeking such an indictment.

The charge of operating a motor vehicle with a license that has been suspended for drunk driving carries a mandatory minimum sentence of sixty days. If however, a person is drunk at the time, the mandatory minimum penalty increases to 1 year. The law requires that this sentence be served from and after serving any other sentence.

Needless to say, Mr. Maher has significant challenges ahead, and requires the expertise of a skilled criminal defense attorney.

Continue reading "Drunk Driving Charge Number Seven for Springfield Man" »

The West Roxbury Division of the Boston Municipal Court arraigned Zyoma Vasserman of Newton yesterday on charges of Vehicular Homicide. Mr. Vasserman was driving on the V.F.W. Parkway between 9 and 10 p.m. on June 14, 2011 when he struck and killed a 17 year-old high school student. The 17 year-old was crossing the parkway with five friends when Vasserman struck him.

After the accident, Vasserman stopped and waited at the scene for the police and E.M.T.s. The police did not find that he was impaired or intoxicated at that time and Vasserman subsequently cooperated with investigators. According to Boston.com, those investigators found no suggestion of excessive speed, erratic operation, impairment, or negligence.

A full follow-up investigation apparently turned up evidence of negligence -- speed. According to a Metro article, the investigators found that Vasserman was traveling at 59 miles per hour in a 30 mile per hour zone. The State Police, according to a Boston Globe article, "concluded that Vasserman was driving between 46 and 59 miles per hour in the moments leading up to the collision point." This conclusion was apparently reached by a review of surveillance cameras from Vasserman's route.

A tragedy, yes. But, a crime? Let's take a closer look at what has been reported.

The Metro said that Vasserman had a "lengthy driving record." The Globe said that he has "a long history of driving infractions." The Suffolk County District Attorney's Office issued a press release entitled "Longtime Traffic Offender Charged With Motor Vehicle Homicide." Did these claims have anything to do with the decision to bring the charges? And exactly how bad is this man's driving history?

Well, the Globe reports that he has had five speeding tickets between 1990 and 2009. Five tickets in 19 years. So he averages one speeding ticket every 4 years. Not so bad, really. According to the Metro, RMV records revealed 11 moving violations in 28 years. That is likely his entire driving history. Eleven tickets in a lifetime? Is that really extraordinary?

Vasserman's driving history makes good press and it may or may not have had something to do with the decision to charge him, but one thing is for sure: no jury will ever hear about it at trial. This type of evidence is routinely excluded by experienced criminal defense attorneys because it is very prejudicial and has nothing to do with whether Vasser was negligent on June 14, 2011.

The police said they determined his speed by reviewing cameras along his route. What they did not say was they had data from a camera at the scene of the accident. Hence, we may conclude that they have no such evidence. Isn't this the most important place? After all, the question is whether he was negligent when he hit the young man. His speed a mile or two before the accident is just slightly more relevant than his so-called "lengthy driving record."

Where were these cameras? How far back were they? What were the speed limits at the camera locations? Were there other recordings that showed that he was actually driving at less than 46 miles per hour? Were other cars clocked at these locations? Were they going slower or faster than Vasserman? Negligence, after all is doing something that a prudent person would not do or failing to do something that a prudent person would do.

The State Police recently revealed the data from the "black box" in the Lieutenant Governor's car after his early morning crash. Did Vasserman's car have a black box?

What did the victim's five friends say during the initial investigation? They couldn't have said that Vasserman was speeding, otherwise the initial investigation would not have cleared Vasserman. At his arraignment Vasserman, through counsel, claimed that he was driving through a green light when the victim "shot out in front of him." He also said that the victim was not in the crosswalk. Well-respected prosecutor, Patrick Devlin, said: "It was a violent, tragic, and in the end, a preventable death." My question, however, remains: Was it a crime?

The crime charged here is punishable by imprisonment for not less than 30 days and not more than 2 ½ years. In addition, a conviction will result in a 15 year loss of license. Since Vasserman owns an auto repair shop, and needs to drive cars to operate it, we should expect that he will put up a vigorous defense.

Continue reading "Vehicular Homicide Charge Brought Six Months After Accident" »

Quincy District Court arraigned Michael Ritchie and his teenage daughter Jennifer this week after their arrests on charges of larceny under $250 and larceny over $250. According to an article in the Globe, a Quincy woman called the Quincy Police Tuesday after seeing a woman walk away from her home carrying a package that had been delivered earlier. The resident apparently told the police that the woman got into a white pickup truck which drove away.

The Quincy police "spotted a white Ford pickup truck with an American flag [decal] nearby and spoke with the driver . . . Michael Ritchie." Ritchie admitted to having been in the neighborhood from which the package was taken, but said he "was just visiting his daughter Jennifer." The police say that during this conversation, they saw a package in the back of the truck. Apparently this turned out to be the missing package. When the police questioned Jennifer, she admitted to stealing that package as well as others in the neighborhood.

The notoriety of these two defendants garnered national attention in an ABC News story covering the topic. The title of the story was "Holiday Grinches Steal Christmas in Mass." Quincy Police Captain John Dougan is quoted as saying that package thieves have been following delivery trucks and taking the packages from doorsteps before the recipients get home. The ABC story reported that the police caught Michael Ritchie with a set of speakers and a series of CDs. At Jennifer Ritchie's home, the police found allegedly stolen baby clothes and Hello Kitty items intended as gifts.

The Ritchies are not drawing much sympathy from the stories. In fact, a comment following the Globe story begins "Death Penalty!" That's obviously a bit strong, but it conveys an understandable human reaction to these allegations. No matter how one feels about the acts described, however, the actors are presumed innocent until proven guilty beyond a reasonable doubt. In fact, the more despicable the charge the more important it is for the rights of the accused to be protected. This starts with experience criminal defense counsel.

A few things that counsel likely will explore:

1. Did the woman that reported the theft describe the truck as a Ford with an American Flag decal? If so, that may be specific enough to justify the stop of the truck. If not, the stop may not be justified and everything discovered as a result of the stop may be suppressed with a successful motion to suppress physical evidence. End result - dismissal.

2. If the police suspected Jennifer Ritchie, did they give her an adequate Miranda warning before she admitted wrong doing? If not, then her statements may be suppressed with a successful motion to suppress statements. If these statements were the catalysts to the recovery of items from her home, then the suppression of the statements would also result in the suppression of the items found there.

3. Did the father know what his daughter was doing? Was he actually visiting his daughter in the area? Where did she live? Did she jump in his truck and throw the package in the back without telling her father where it came from? After all, she had other items in her home and it appears that her father has only been charged with the items in the truck. Surely, if anything was found in his home, it would have been reported. Moreover, the stories do not say that she implicated her father in her other thefts. I do not have all of the evidence that the police have. But, based strictly upon these news reports, isn't it at least possible that Michael Ritchie did not know what was going on? And if he did not, what of the facetious call for the death penalty?

A committed professional criminal defense attorney will not shy away from a difficult case and will press every angle for his client regardless of the popularity of the client or the charge. Without apology.

Continue reading "Quincy Police Arrest Father and Daughter Accused of Stealing Christmas Deliveries" »

There were two local sports figures in criminal law news reports this week. Yesterday, the Boston Globe reported: "Juilian Edelman 'humbled' after charges dropped." Today, the Globe reported: "Milbury sought in Pee Wee altercation."

First up, Patriot, Julian Edelman. On the strength of a woman's allegations that Edleman groped her in a night club, the Boston Police arrested the wide receiver/kick returner/defensive back on November 1. The two had been on the dance floor at the Storyville night club in Boston this Halloween. Edelman was dressed as the character Lieutenant Jim Dangle from the Reno 911 show. The unnamed woman's costume was not described, but she reported that that Edelman "reached under [it] and grabbed her crotch."

The Boston Police arrested Edelman and charged him with "indecent assault and battery." He was arraigned in the Boston Municipal Court and released without the imposition of bail. The Globe reported that he was scheduled to return on January 10, 2012. The case, however, must have been rescheduled for Thursday this week. The prosecution then announced that after a thorough investigation, they would not be able to meet their burden of proof beyond a reasonable doubt.

According to the Globe, the official statement was: "To constitute indecent assault and battery, physical contact must be intentional; potentially physically harmful or an affront to the victim's integrity; fundamentally offensive to contemporary moral values; and without justification of excuse. Prosecutors could not prove these elements with evidence contained in the surveillance imagery, witness statements, and other evidence." The DA's press secretary added that the decision to drop the charges was based on the "provability of the case," and had "absolutely nothing to do" with the identity of the parties.

This is obviously good news for Edelman and the Patriots who will be facing the Broncos in Denver tomorrow afternoon. Fans hope that Edelman has a clear head as he will be needed in his fairly new role in the struggling (32d in the league) defensive backfield. Especially with "Tebow Time" looming. The resolution of the court case is, however, somewhat puzzling. It leaves one to think that there must be more to the story. If a woman says that a man grabbed her crotch without her consent, witnesses and video recordings are not necessary. That statement covers all the elements of the crime. She just needs to take the stand and tell the jury that is what happened. If they believe her it's a conviction, if not, it's an acquittal. She is most certainly the missing link in the prosecution's case. Without her, they didn't have one.

Next up, Mike Milbury, a far more prominent local sports figure. He played 12 seasons for the Bruins, followed by serving as the team's assistant general manager and then head coach. He is currently a sports media analyst, and as we learned from recent news, an assistant coach and director of coaching with his son's Pee Wee hockey team - the Boch Blazers.

The Boston Globe reports that on December 9, the Blazers played the Boston Junior Blackhawks at Jack Kirrane Ice Skating Rink in Brookline. There were reports that a 12-year old boy had been "antagonizing" Milbury's son, Jake, during the game. Milbury complained to the Blackhawk's coach without redress. After the game, the kids had pizza on the ice and then lined up for a shoot-out at center ice. At this point, the alleged victim threw Jake to the ice and a scrum ensued. The victim's mother said that Mike Milbury intervened, picked her son up by the shirt, shook him, and yelled at him. Surely, there were several other witnesses.

The Brookline Police investigated and decided to bring charges against Milbury including assault and battery, threatening to commit a crime, and disorderly conduct. It is unclear if Brookline Police Captain Thomas Keaveny was part of the investigation, but he told the Globe that he has four children of his own who have played sports, and "it doesn't surprise him to receive reports a former professional hockey player getting involved in an alleged assault ." He also said: "I've seen a lot of irresponsible things done by adults and Mike Milbury is no different in my mind." He then attempted to walk this back by saying that these are "just allegations," but a bell, as we say, cannot be un-rung.

Luckily for Milbury, the charges were all misdemeanors and none of the alleged crimes were witnessed by the police. (Captain Keaveny apparently came to his conclusions without the benefit of first-hand knowledge). As such, Milbury was not arrested, and he is entitled to a hearing before the Clerk Magistrate of the Brookline District Court to determine whether a criminal complaint will issue against him. As I have said in the past, this is an excellent opportunity to get folks together and hash out their differences without the necessity of drawn-out criminal court intervention.

Whether that is possible here is somewhat problematic. On one hand is Milbury who watched his own son being antagonized and then thrown to the ice. Milbury has people on his side that describe him as a great guy, as a fantastic coach who is well loved by the kids, and as being a proponent of peace on the Pee Wee ice. On the other is a police captain who has exhibited a bias against former professional athletes in general and against Milbury in particular, as well as an understandably upset mother who witnessed her own son being manhandled by an adult. This one will be a challenge for the magistrate, especially with the pressure of media coverage.

Continue reading "Patriot Edelman Skates from Groping Charge as Former Bruin Milbury Hit with Roughing Charge " »