Recently in Clerk's Hearing Category

Jail Assault Charges Against Aaron Hernandez?

February 27, 2014

Hernandez.jpgThe Sheriff of Bristol County announced yesterday that former Patriot tight end, Aaron Hernandez, was involved in a fight with another inmate on Tuesday. The sheriff only said that there was a brief altercation in an area where inmates are not supposed to contact each other; neither man was injured; and an investigation is underway. Later "news" outlet TMZ, citing "sources extremely familiar with the situation," said that Hernandez was unrestrained, the other man was wearing handcuffs. In addition, TMZ said that the other inmate had been "talking smack" to Hernandez. It remains to be seen if these factual allegations have any merit at all.

Today's Sun Chronicle reports that the sheriff will likely file charges. Against whom? Will the sheriff bring charges against Hernandez, the other man, or both of them? There are many other questions that I expect will be answered after the full investigation. Here are some that come to my mind as a criminal defense attorney.

What will the charges be? Assault and battery? Assault and battery with a dangerous weapon such as a shod foot or handcuffs? Will the second man agree to press charges? Will Hernandez agree to press charges? If neither agrees to testify, where will the evidence of a fight come from? A video recording? Is a security video sufficient to prove the elements of what ever is charged? Don't they each have a Fifth Amendment right against self incrimination which would dissuade them from testifying against each other? Under these circumstances does the sheriff really want the media circus and expense involved with transporting these two to the New Bedford District Court?

It is interesting to speculate why these two men were in a restricted area together, but that has very little relevance to the potential criminal charges. The question will be whether either or both committed some type of assault that is provable in court.

If the charge is misdemeanor assault and battery, whoever is charged should be given an opportunity for a hearing before a magistrate to determine if there is probable cause to issue a criminal complaint. This is where the real potential evidence will be unveiled, whether it be witness testimony, video recordings, or both.

In my experience, inmates are reluctant to testify against other inmates. If they do, they are not treated well by the population when they return to custody. Moreover, I would be somewhat surprised to learn that either Hernandez or the other man even reported the fight to corrections officers. In jail, that also falls into the so-called "rat" category.

I fully expect that a video recording exists, since most places inside of jails are monitored with cameras. So, lets assume that the video will be the evidence. Try to imagine, however, a trial where no witness testifies as to what really occurred, and all the evidence comes from a video screen. And remember, it is illegal for these recordings to include audio, so in this situation there will be no evidence of words spoken before or after the altercation. Is such a video likely to provide proof beyond a reasonable doubt? I suppose that we shall see, but if the parties are not interested, why bother? I think we can safely assume that not all jailhouse violence results in criminal charges. This case however, involves a celebrity, and that can change everything.

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Charges Against Allegedly Naked Walpole Teacher May be Excessive

Goggles.jpgThe Wrentham District Court will hear the charges of Open and Gross Lewdness and Disturbing the Peace that the Walpole Police filed against a Norfolk County Agricultural School teacher last week.

According to Wicked Local Walpole, a woman called the Walpole Police at 8:00 a.m. on Martin Luther King Day after twice passing a man in his driveway. The first time, she saw him he was wearing a hat, goggles, and a towel. The second time, "[i]n her return trip," he had "lost the towel." When the police arrived at his house, the man was wearing the towel and he insisted that he had never taken it off.

At that point it appears that the police were either going to give him the benefit of a doubt, or were going to file charges to be addressed at a clerk's hearing in the Wrentham District Court. That is, until another call came in two hours later. This time a woman said that a man was "naked" in the driveway (no mention of hat or goggles). To make matters worse, the woman said that he "thrust his hips onto his mail box as she drove by." This visual is highlighted with the allegedly accurate description of the man as having a "paunch" with "dark body hair."

With this information, the police obtained an arrest warrant for felony Open and Gross Lewdness and misdemeanor Disturbing the Peace. They executed the warrant at 3:00 p.m. on Wednesday. The article contains no information about his arraignment in the District Court.

Beyond the somewhat irregular allegations, this story brings to mind some issues with regard to Massachusetts Laws Chapter 272 entitled "Crimes Against Chastity, Morality, Decency, and Good Order." Both of the charges in this case are contained in this chapter.

While bodily exposure is an element of the crime of Open and Gross Lewdness, there needs to be more. Just being naked and being seen, is not enough. There must be proof beyond a reasonable doubt that the exposure was intentional. In other words, if the towel fell off, that would not be enough. Perhaps that is why the police apparently did not seek a warrant until the second woman said that the man was naked and thrusting "onto his mailbox." (I expect that "onto" was simply an unwise choice of words in the by the reporter).

In addition to exposure that is intentional, there must be even more. There must be proof that the intentional exposure was done to produce shock. And there must be proof that at least one person was actually shocked. Again, the prosecution will likely argue that the thrusting goes a long way toward satisfying this element. But, they will need to prove that the thrust was done specifically to shock the onlooker.

In sum, there must be proof that the teacher intended to expose certain parts of his body in a shocking way to other people who were in fact shocked. For the man to be convicted, the woman will have to come to court, testify, and thereby satisfy all of the elements, including shock.

If the prosecution is unable to prove the element of shock, they may fall back on a lesser offense of Indecent Exposure. Here there would have to be proof of intentional exposure along with someone being offended as opposed to shocked. That is an interesting distinction.

What is more interesting are the legal differences between the greater and lesser charges in this regard. Open and Gross Exposure is a felony, while Indecent Exposure is a misdemeanor. A more striking distinction is that the lesser charge actually requires exposure of genitals, while the more serious charge may be satisfied with non-genitalia such as buttocks or breasts. Apparently the drafters were concerned more with how one shows it, than what one shows. The case depends on the evidence, of course, but in my opinion the lesser charge may be more applicable. Even then, however, a conviction may not be easy in these circumstances.

It should be noted that a singe conviction of the felony Open and Gross Lewdness does not require one to register as a sex offender. A second conviction, however, does trigger that obligation an that obligation lasts for 20 years. I trust that the man has experienced criminal defense counsel to undertake the analyses and investigation necessary to bring an apparently imposing situation down to reality.

Even though it is probably the least of the teacher's concerns, let's look at the charge of Disturbing he Peace. Although this charge looks like a gift compared to the other, it could be even more difficult to prove when you look at the proof required. The elements of this crime are: 1) intentionally engaging in disruptive conduct such as making loud noises, threats, challenges, insults, etc. and 2) annoying/disturbing the tranquility of at least one person by doing such things.

So with Open and Gross one must be shocked, with Indecent Exposure one must be offended, and with Disturbing the peace one must be annoyed and/or disturbed.

In sum, what appears to be a relatively simple story actually has some provocative twists.

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Assault and Battery with a Dangerous Weapon (Weed Whacker) in Neighborhood Dispute Results in Arrest

September 13, 2012

weed whacker.jpgLast Sunday afternoon Mr. Robert Tiernan was using his weed whacker along a fence between his property and his neighbor's. According to the Medford Transcript, the man next door came outside along with his wife and a friend. They were "looking at the garden that is close to the shared fence . . . and asked [Tiernan] to stop for a few minutes, but he refused." What happened next will be the subject of several cases headed for Somerville District Court.

Tiernan told the police that after he refused to pause his weed whacker, one man threw a beer bottle at him. The bottle hit him and spilled beer all over his pants. His foot then got caught in the bottom of the fence, he lost his balance and his control of the weed whacker. He said that if anyone got whacked, it was an accident. The police observed injuries to the woman's arm.

The others told the police that Tiernan got argumentative when asked to stop. They said that he not only used the tool to shoot rocks and dirt at them, but he swung it over the fence and injured the woman.

When the police arrived they found Tiernan on the ground surrounded by three men. He was covered in blood, his shirt had been ripped off, he had bruises on his torso, and he had a cut over his eye that looked like it needed stitches.

The men claimed that after Tiernan committed the Assault and Battery with the whacker, one of them did hit him with a beer bottle, and then Tiernan started to walk away. They all approached him "fearing that he was going to flee." The three men then claimed that Tiernan attacked them and that he was injured as they defended themselves.

The police only arrested Tiernan on charges of Assault and Battery with a Dangerous Weapon. They will, however, be filing Assault and Battery charges against the other men in the Somerville District Court. They seized the weed whacker as evidence.

A few questions: Why couldn't the neighbors wait until Tiernan finished his work? Couldn't they have "looked at the garden" a little later? Did Tiernan's refusal to shut off the machine justify the man's hitting him with a beer bottle? Why didn't the police arrest that man for felony Assault and Battery with a Dangerous Weapon? After all he admitted it, even though he claimed he was defending himself from the swinging garden tool. If a fence separated the parties couldn't they all have just stepped back? Why was anyone close enough Tiernan to be in range of the the dirt and pebbles that got whipped up? For that matter, why was anyone close enough to be in range of the weed whacker at all? Did the three men really need to detain Tiernan? Did they think he would flee and never be found by the police? He lived next door. And did the three men really need to defend themselves from Tiernan? Did they follow him into his own yard? How big were these three and how old?

What was really going on there? Perhaps there was some previous "bad blood" between these people? Surely the presence of beer explains some of it.

In any event, Tiernan will be facing felony Assault and Battery with a Dangerous Weapon Charges. The other three will likely have a hearing before a Clerk Magistrate to determine if Complaints will issue against them at all. If cooler heads don't prevail in the early going, this could be a long feud, in court and out.

They would all benefit with the assistance seasoned criminal defense attorneys to see to their individual best interests.

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Negligent Operation Combined with Illegal Texting Arraignment in Quincy Court

September 2, 2012

texting into headlights.jpgNegligent operation and texting-while-driving charges were formally lodged against 25 year-old Kyle Beard in the Quincy District Court last week. I say "formally lodged" because the events that gave rise to the charges occurred back in December. The delay tells me that the police did not arrest Beard back then, but applied for a complaint and requested a hearing before a Quincy District Court Clerk Magistrate. Obviously, the magistrate found enough evidence to issue the Complaint .

I came across this little story in the Plymouth Patch. I write about it because it illustrates some issues with regard to the Anti-Texting law (part of the so-called "Safe Driving Law") that is coming up on its second anniversary at the end of the month. The article says that Beard was driving his Jeep Cherokee on Commercial Street in Weymouth and allegedly crossed the center line into oncoming traffic. Fortunately, there was no crash, but unfortunately for Beard, a Weymouth police officer was coming the other way. That officer said that he had to "turn sharply" to avoid a head-on crash. When they pulled Beard over, the police saw a cell phone on his lap and he allegedly told them that it rang as he drove and he crossed the line as he looked at it. (Another example of making their case with your words).

The first and most obvious question is: "How are Beard's actions a violation of the no-texting statute?" The statute makes it a civil violation to use a cell phone to "compose, send, or read an electronic message while operating a motor vehicle." Did the magistrate interpret this language to mean you are not allowed to look at your ringing phone without being involved in illegal "texting?" According to the story, Beard did not even say that he was checking the caller ID on the cell phone. Even if he were, it seems to be a stretch to define this as texting. In any event, if he is found responsible, he will have to pay a $100 fine for a first offense (2d offense - 250; 3d offense -- $500).

Obviously, the texting charge is not Beard's main problem. It does, however, have an important link to the charge of negligent operation, which carries criminal penalties and a potential loss of license. For the prosecution to prove that Beard was negligent, it must prove that he failed to act reasonably under the circumstances. If he were illegally texting, then he was likely acting unreasonably. If his glance at his phone is not texting, then the question becomes: "Is it unreasonable to look at a ringing phone while driving?" I think not. One with an opposing view might ask: "What about crossing into the other lane?" My response: "Not every misstep is a crime."

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Quincy District Court to Hear Assault Charges from Weight Room Altercation

dumbbell.jpgCriminal charges were lodged against 44 year-old Timothy Dutcher on Thursday as a result of his confrontation with another man at a Braintree gym. According to, Mr. Dutcher and an unnamed 27 year-old Quincy man were working out in a Braintree gym when Dutcher allegedly "became enraged" at the Quincy man.

Dutcher allegedly backed the "victim" into a corner, slapped him, and held two dumbbells over his head while verbally threatening him. The victim extricated himself and made tracks to a nearby gas station to call the police to report his humiliation. By the time the police got to the gym, however, Dutcher had left. They then went to Dutcher's home and arrested him. Based on the victim's narrative, the police charged Dutcher with Assault and Battery, Assault with a Dangerous Weapon, and Threats.

This is one of those cases that makes you wonder about the back story. What were these guys arguing about? Did the victim violate gym ethics by failing to rack his weights? Did the victim cut in on Dutcher's routine? Did they know each other? There must be witnesses. How big is the victim compared to Dutcher? Is there some code behind the word "enraged" as used in the article. Is someone implying "roid" rage? Why did the victim bother calling the police at all? There's the law and then there's just life. Apparently some people are just more prone to assume the victim role.

The charge of Assault with Dangerous Weapons (dumbbells) is a felony. If not for this allegation, there may not have been an arrest at all. If all of the charges were misdemeanors, Dutcher would have had a right to a Clerk's Hearing where all this could have been hashed out between the parties without the necessity of the criminal process. This would have been best in this circumstance.

As it stands, I expect that Dutcher made bail from the police station and was either arraigned on Friday or will be at some time in the near future. At arraignment, the judge may order him to stay away from both the victim and the gym while the case is pending. An experienced criminal defense attorney will obviously focus on avoiding convictions for any of these charges, especially the felony. Any conviction may involve a jail sentence, probation, fines, fees and further stay-away orders.

For better or for worse, the days of self-help after the bully kicks sand in your face are over.

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Stoughton Police Seek Driver Who Hit Utility Pole and Fled Scene

witness stand.jpgLeaving 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.

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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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Patriot Edelman Skates from Groping Charge as Former Bruin Milbury Hit with Roughing Charge

December 17, 2011

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.

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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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