January 2012 Archives

Assault With Firearm Charges Brought Against Weymouth Police Dispatcher

glock.jpgA 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.

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Drunk Driving Charge Number Seven for Springfield Man

cuffs3.jpgOperating 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.

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Vehicular Homicide Charge Brought Six Months After Accident

cross walk.jpgThe 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.

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