November 2011 Archives

Boston Municipal Court to Hear Assault Charges Against Occupy Boston Protester

November 25, 2011

Occupy boston tent city.jpgThe Boston Police arrested Jade Anderson at the "Occupy Boston" site on Saturday, November 19. According to the, a witness called 911 to report that a man was assaulting a woman at the demonstration, and when the police arrived, Ms. Anderson assaulted them.

The Suffolk County District Attorney's Office and the Boston Police reported the following: While to police were investigating the 911 call, Ms. Anderson ran at them chanting anti-police slogans and sprayed them "with spittle as she did so." She pushed one officer and when he told her to leave the area, she punched him in the face. A second officer intervened and received the same from Anderson. All three went to the ground as the police tried to arrest her.

The police charged her with one count of being a Disorderly Person and two counts of Assault and Battery on a Police Officer. Apparently Ms. Anderson bailed out of the police station and was ordered to appear for arraignment in the Boston Municipal Court on Tuesday, November 22. She however, did not show up, and the Boston Municipal Court entered her default and issued a warrant for her arrest.

She was not hard for the Boston Police to find. The next day, they spotted her at the same site with a conspicuous new hair color - purple. During their attempt to arrest her on the warrant, she allegedly kicked one of them in the leg. Boston .com reports that when asked why she did it, she said, "Because you [expletive] deserved it." She would later apologize and explain that she "had to do what she had to do to fight the corruption."

The police transported her to the Boston Municipal Court for arraignment. The court Bail set bail at $850 and ordered her to stay away from all Occupy Boston activities in the city. There may be more to this than has been reported, or she may have just let her passion to fight the corruption get the better of her. An experienced criminal defense attorney, will surely assist her in presenting her defense.

It would appear that Ms. Anderson must now defend herself against charges from two different cases. The original charges of Disorderly Conduct and Assault and Battery on a Police Officer were all misdemeanors. Kicking the police officer, however, may have resulted in a felony charge of Assault and Battery with a Dangerous Weapon (foot with shoe on it). She is 20 years old and will obviously be advised to avoid a conviction of any charge. A criminal record may have long lasting negative consequences, especially a record of a felony conviction.

In the event that this young woman has no prior record, she will likely be able to resolve the cases without incurring a criminal record. She may do this if she is willing to admit that the police have enough evidence, and ask the court not to convict her but to continue the case for a period of time and then dismiss it. If however, she has a legitimate defense, or her passion to fight the power compels her to take a stand, she may request trials.

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Dedham District Court Arraigns Couple on Marijuana Distribution Charges

November 19, 2011

Weed and cash2.jpgMarijuana weighing more than 20 pounds and currency amounting to $110,000 was seized from locations in Norwood, Norfolk, Foxboro, and Plainville on Monday. The raids were conducted by a task force consisting of Norfolk County local police, Massachusetts State Police, and inspectors from the United States Postal Service. According to news reports, the task force raided all locations at approximately 7:15 a.m. that morning. Twenty eight year-old David Higgins and twenty three year-old Brittany Capece were arrested at an apartment on Winslow Street in Norwood. The police found at least ten pounds of marijuana and at least $70,000 there.

The Patch reported that in addition to the Norwood seizures, the police seized two cars and $3,000 in Plainville. They found seven more pounds of marijuana at the residence of Robert Gately in Foxboro. The police did not arrest Gately, but he was summonsed to appear in the Wrentham District Court on charges of possession of marijuana with the intent to distribute.

Higgins and Capece were not so lucky. They were arraigned in the Dedham District Court on the same charges but held on $50,000 and $25,000 respectively. They were also ordered to surrender their passports as a condition of their release. These bails were appealed and subsequently lowered to $10,000 and $5,000. Their pre-trial conferences are scheduled for December 6 in the Dedham District Court. When people are held on bails the law requires that the next court date be within 30 days.

There is no explanation as to why Gately, who was allowed to go to court on his own, received treatment different from Higgins and Capece, who were arrested and held on high bails. It could be that the Norwood residents were the main focus of the investigation. As such, the police, prosecutors, and Dedham District Court Judge may have assumed that they had access to large sums of money to make the high bails. Higgins, however, was still in custody as of Friday when the Norfolk Superior Court granted his appeal and reduced his bail to $10,000. The Superior Court reduced Capece's bail earlier in the week.

These raids were reportedly the result of an investigation that has been going on since September. The involvement of postal inspectors implies that the marijuana may have been shipped to or from the people accused. Often times these investigations begin with a suspicious package being opened or sniffed by a drug-sniffing dog. A dog sniff is not a search and can be done without a warrant. From there it is a matter of following the package and utilizing other investigative techniques.

The search of a residence does require a warrant. In this case the investigators would have to obtain warrants for all of the residences that they raided on Monday. In order to do this they would have to present evidence to a court which explained why they believed that marijuana and related evidence would be found at the locations at the time of the search. An experienced criminal defense attorney will gain access to the documents that the investigators presented. If the documents were legally insufficient to support the warrants, the attorney will have the drugs and money suppressed with a motion to suppress. This would result in a win for the defendants.

Twenty pounds is a fairly large amount of marijuana, and $110,000 is a large amount of cash, but these charges are not as severe as they appear. Possession of marijuana with the intent to distribute is a misdemeanor. The maximum punishment is up to 2 years in the house of correction or a fine between $500 and $5,000, or both. If the weight had been 50 pounds or more, the charge would have been trafficking and there would have been a mandatory state prison sentence possibility. The statute in this case provides for neither a state prison sentence, nor any mandatory sentence at all. Moreover, a person sentenced to the house of correction is eligible for parole after serving ½ of the sentence. So the worst case scenario here is 12 months in jail. It should also be noted that if convicted of these charges the Registry of Motor Vehicles will suspend the defendant's driver's license for 2 years.

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OUI Charge Against Former State Legislator Headed for Lynn District Court

November 11, 2011

police at night.jpgMarblehead Police officer Chuck Sinclair responded to the scene of a single car crash at Brookhouse Drive and Tedesco Street on Wednesday night to find former state representative Doug Petersen standing outside his damaged BMW. According to the Winchester Star, Petersen was standing on a walkway talking on his cell phone and yelled "I was operating" to Officer Sinclair. Apparently, a witness told the officers that he/she saw the BMW travelling a rate speed which was too fast to make the turn onto Brookhouse. The front driver's side wheel hit the median, causing the car to swing around so that the rear wheel also "slammed into the curb." Emergency Medical Technicians evaluated Petersen on the scene, but he was not injured.

Sinclair reported that Petersen's breath had a "heavy" odor of alcohol, his eyes were glassy/blood shot, his speech was slurred, and he was unsteady on his feet. Petersen initially denied drinking alcohol, then admitted to drinking a couple of drinks, adding that he did not think he was drunk. The article in the Star stated that "[w]hen Sinclair attempted to test Petersen's horizontal gaze nystagmus . . . Petersen wouldn't follow direction." Officer Sinclair arrested him on a charge of operating under the influence of alcohol.

Petersen refused to participate in agility-based field sobriety tests, refused to provide a breath sample for the portable breathalyzer, and refused to take the breathalyzer test back at the station. According to the Salem News, while he was being booked he claimed to have taken medication earlier in the day and showed emotional mood swings. He is scheduled to be arraigned in Lynn District Court on Monday.

The following issues are relevant from the standpoint of an experienced criminal defense attorney:

1. Investigation. The prosecution's case like many OUI cases is based in large part on the testimony of the arresting officer. There are, however, independent sources of information that should be explored. The witness that saw the car speeding apparently stayed on the scene long enough to talk to the officer. That individual should be asked whether he/she noticed the same things about Petersen's appearance as the officer did. Additionally the EMTs should be interviewed for the same reason. Was he really that unsteady? Was the odor of alcohol really that "heavy?" Was his speech really that slurred?

2. Nystagmus. The "horizontal gaze nystagmus test" involves an officer holding an object in front of an operator's face and moving it off to the side. The operator is instructed to follow the object with his/her eyes only, without turning his/her head. The test supposedly reveals impairment if the operator's eyes begin to involuntarily jerk before the point where they normally would. In other words, an impaired operator's eyes would be unable to follow the object as far as sober person's eyes would. This may explain the wording of the article where it says "Petersen wouldn't follow direction." This gives the impression that Petersen was refusing or unable to follow directions. I would expect, however, that the report was merely explaining that his eyes would not follow the direction of the object. In any event, this is not likely to have much an effect on the trial because these tests, without explanatory expert testimony are routinely deemed inadmissible.

3. The Accident. The occurrence of an accident in connection with an OUI charge obviously hurts the defense case. Sometimes badly. An accident, however, may provide an alternative explanation to behaviors that would otherwise appear to indicate intoxication. A person involved in a high speed car crash, gets shaken up. This may account for being unsteady or even confused, and when one knows one is in that condition, it is wise to decline the invitation to perform physical agility tests. Add to this the nervousness associated with prospect of being arrested, and a dexterity drill is a daunting challenge.

4. The Admissible Evidence vs. the News. The news reports of this incident do not accurately portray the facts that may be admitted at trial against Mr. Petersen. The jury will be informed that it is not a crime to drink and then drive (with an odor on your breath). The jury will not likely hear that he refused to incriminate himself by taking so-called field sobriety tests. The jury will not be informed that he refused the breath test on the scene or at the station. (The portable test would have been inadmissible even if he had taken it).

These cases are never easy. In this case, however, an acquittal may be achievable. One of the biggest factors is the lack of an admissible breath test result. When the legislature, with the vote of Representative Petersen, enacted Melanie's Law in 2005, the importance of the breath test was amplified. It used to be that failing the test was just evidence of impairment, and the prosecution was still required to prove that an accused's ability to operate safely had been impaired by drinking. Melanie's law made it easier for prosecutors trying OUI cases where the accused failed the test. According to the law, the prosecutor now simply shows that the accused was driving with blood alcohol content above the limit. That's it. It is a crime to drive while over the limit no matter how safely one is able to do so.

The Registry of Motor Vehicles will suspend Mr. Petersen's license for 6 months because he refused the breath test. (Proponents of Melanie's Law had suggested a one year suspension, but that was voted down. Representative Petersen voted with the majority on this issue.) While Mr. Petersen lost his license for his refusal, he increased the odds of winning his case. After all, he knew the law better than most in his predicament.

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