October 2011 Archives

Dedham District Court To Hear Domestic Assault Charges After Motorist Tip To Wellesley Police

The Wellesley Police received a telephone report of a possible assault in a moving car last Friday just before 4p.m. According to an article in the Wellesley Townsman, the caller "said he believed he had seen the operator of the car strike a woman in the back seat." Wellesley Police Officers pulled the car over on Route 9 to investigate.
A man, Jamal Abdulla Jaylani of Somerville, was behind the wheel and there was a woman in the back seat that appeared to have been crying. She did not have any facial injuries, but her face was "very red." The police arrested Mr. Jaylani and charged him with domestic assault and battery.

The Dedham District Court has jurisdiction over criminal cases occurring in Wellesley. The Dedham Court, like other Massachusetts District Courts, closes at 4:30 p.m. This is significant because this incident occurred so close to closing time, that it would be unlikely for the police to have booked and processed Jaylani in time for his arraignment in the Dedham Court on that same day. Since the article says that he made bail, and the court was likely closed, he must have been bailed out of the police station. If he had not, he would have had to wait in a cell for the entire weekend before being brought to court for an opportunity to ask the judge for a lower bail.

Based upon the article, the charge is assault and battery. Prosecutors call this a "domestic" assault and battery even though no such a charge actually exists in the criminal statutes. They designate the case "domestic" simply because the case involves an allegation that a man assaulted a woman with whom he was acquainted. Prosecutors give special attention to these matters because of their concerns about a possibility of future violence or abuse between the parties, as well as the need to notify the alleged victim of the court proceedings. On many occasions, however, the couple reconciles and the victim is not only well aware of the proceedings, but is more sympathetic to the defendant than she (or he) is to the prosecution.

One indicator that this may be the case for Mr. Jaylani's is the absence of any indication that the victim requested an emergency restraining order against him that afternoon. There can be no doubt that the Wellesley Police satisfied their obligation to notify her of her right to request such an order. Because she did not, it would not be surprising to find that it was actually she who paid the bail to secure Jaylani's release from the police station.

If the victim fails to testify against Mr. Jaylani at trial, the only other person that could assist the prosecution would be the man that initially called the police. Whether the person identified himself or not will be a significant consideration for the defense. Even if the man appeared at trial, however, he may not be much help to the prosecution. After all, he told the police that he "believed he had seen the operator of the car strike a woman in the back seat." This type of statement would not be enough for proof beyond a reasonable doubt that Jaylani actually made contact with her, especially, where she had no injuries. An experienced Dedham Criminal Lawyer will surely emphasize all of these points.

These are potentially volatile situations with prosecutors sometimes faced with what seems like the task of protecting a victim in spite of her own wishes. For the defense, it is a matter of sizing up the potential evidence and using every legal tool available to aggressively protect the rights of an innocent client.

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Shoplifters at iParty to be Charged in West Roxbury Court

gorilla1.jpgThe West Roxbury Division of the Boston Municipal Court will hear criminal charges of shoplifting and larceny against two men involved with the theft of gorilla suits from iParty on Monday. According to the article in the Boston Herald, there were actually four men together in the store. Employees of iParty apparently noticed three of them leave with one carrying the goods -- two gorilla suits valued at one hundred dollars each. The Boston Police reportedly said that the other two "booked it down VFW Parkway." The one man that stayed behind said he did nothing wrong and he actually called the man in possession of the stolen get-ups and convinced him to bring them back. According to the Herald, that man, 18 year-old Brian Cherry, "was charged with larceny/shoplifting of $200 and over." It is not clear if they were both charged; the article said that they were all involved.

Looking back, if the man that remained in the store did not help out, and the man with the gorilla suits did not return, the police would have just one suspect who asserted his innocence and the store would be out two costumes. Of course, there may be evidence, not reported, that could prove that the man that stayed behind "aided or abetted" Mr. Cherry in the theft. Perhaps they both planned to go out on Halloween as apes.

In any event, this misadventure has some interesting issues. As mentioned, "aiding or abetting" could be applied to convict the man that stayed behind. Since he did not carry off the merchandise, the only way he may be guilty is if he "aided and abetted" Mr. Cherry.

In order to prove this, the government needs proof that he participated in some way, and shared Cherry's intent to steal. His participation may be shown by assisting, encouraging, planning, standing by as a lookout, agreeing to help, or agreeing to help with the escape. If this is provable, then the man left behind could be found guilty of shoplifting even though he never left the store with the merchandise.

It is important to note that merely being present is not enough to prove him guilty, even if he knew it was about to happen and did nothing to stop it. In other words, under our laws, there is no such thing as guilt by association. To be convicted, there must be proof beyond a reasonable doubt that he actually "participated" in the crime and shared Cherry's intent.

There are other legal issues involving the charges. The article says that the charges are "larceny/shoplifting of $200 and over." Actually the charge must be either shoplifting or larceny an the government may bring either charge. If it is shoplifting it will be "shoplifting over $100," because The Massachusetts Shoplifting statute provides for enhanced penalties when the value of the merchandise is over $100. At that stage, the penalty increases to a possible jail sentence of 2 1/2 years and a fine of $1,000.

If the charge is is larceny it will be "larceny under $250," because the Massachusetts Larceny statute provides for penalty enhancements at a cut off point of $250. If, as it is in this case, the value of property involved in a larceny prosecution is less than $250, the penalty is a maximum of 1 year in jail and a fine of $300. Hence in this particular incident, the shoplifting charge is actually more serious than the larceny charge.

An experienced criminal defense attorney will know this. Hopefully for Mr. Cherry and his friend this analysis will not be necessary. If they have no prior criminal involvement, an experienced criminal defense attorney should be able to have the charges dismissed, or avoid the prosecution altogether with a disposition at a clerks hearing.

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Quincy Court to Hear OUI and Wiretapping Charges Against Bobby Orr's Daughter-in-Law

IPhone OUI.jpgThe Cohasset Police arrested Chelsea Orr (Bobby Orr's daughter-in-law) last week and charged her with operating under the influence of alcohol and violation of the Massachusetts wire tap statute. News reports say an EMT found her hiding in the bushes near her flipped-over SUV on Tuesday night. The police noted an odor of alcohol and described her speech as "thick tongued and slow." She admitted that she had been drinking and the police allege that she failed a field sobriety test, and refused to take the breath test. The officer that drove her back to the Cohasset Police Station claims that she was hostile and threatened to have him fired.

At some point Ms. Orr asked to see a doctor, presumably to be checked for injuries from the crash. The Cohasset Police apparently accompanied her to the hospital where she claimed that she had recorded their conversations with her cellular telephone. For this, the police brought an additional charge under the "wire-tapping statute." She was arraigned on all charges the next day in the Quincy District Court and released on $1,000 bail.

The drunk driving charge has its strengths and weaknesses. On the plus side: 1) from the wording of the report, it appears that she only took and failed one field sobriety test (which may be chalked up to the traumatic effect to her physical and mental state after the harrowing experience of flipping over in her vehicle); 2) there is no breathalyzer reading, which if high can be devastating to the defense (and the jury will not be informed that she refused the breath test); and 3) no-one actually saw her driving badly.

On the negative side, first of all, there is a claim that she was hiding in the bushes. This does not necessarily mean one is intoxicated, but it is unusual and may actually show a consciousness of guilt. She also admitted to drinking, had thick slow speech, and allegedly threatened to have the officer fired. The first two are classic police report descriptions of intoxication indicators. In fact, I expect there are a few others (red, glassy eyes, etc.) that are not included in this story. The threat to have the officer fired, while not necessarily related to intoxication, will not garner any sympathy with a jury. Lastly, although the accident may help explain her failure of the field sobriety test, it certainly is not an overall positive. Being charged with OUI after a car accident creates a difficult legal atmosphere. Luckily ,it appears there were no other vehicles or pedestrians involved. That would have been a lot worse.

Whether or not she is guilty of operating under the influence of alcohol, the news reports indicate that she made a number of bad decisions that may impact that case.

The wire-tapping charge is obviously separate from operating under the influence, but it may also be one of those things that make the entire case more challenging. The charge resulted from her own statement to the police that she had been taping their conversations with her cellular phone. This, the police claim, was in violation of chapter 272, section 99 - the Massachusetts wiretap statute.

At first blush this charge appears to contradict a fairly well publicized decision out of the Federal Court in Boston this summer which stated that recording the police during an arrest does not violate the wiretap statute. The statute only makes it illegal to secretly record the police or anyone else. That is without their knowledge or consent. In her case Ms. Orr recorded the police in secret, while in the federal case the individual was doing the recording out in the open with the police watching him.

A violation of the wiretap statute is actually more serious than the driving offense in that it is a felony punishable by a maximum prison term of five years and a maximum fine of $10,000.00.

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