Arrests for serious crimes are likely to trigger requests for bail. This is true not just in Massachusetts but in every state. Bail orders are set in various situations. Bail orders depend on the severity of the crime charged and other things more fully discussed below in this post. Massachusetts General Laws Chapter 276 Section 58 sets out the procedure for most bail matters. Initial orders of bail that are set in court are matters that should be handled by an experienced criminal defense lawyer. If not handled properly there is a chance that you can be held in jail. This post looks at the time and manner when bail is usually addressed.
Earlier today I read a blog post written by Orange County criminal lawyer Randy Collins discussing the role of jailhouse informants or snitches in helping prosecutors prove cases. It reminded me of just how difficult defending criminal cases can be when a client is locked up awaiting trial. The use of informants always had and always will have its place in proving crimes. Yet is seems more prevalent these days in Massachusetts, particularly in regard to murder prosecutions. There was a time when the fear of retaliation scared would be informants from helping prosecutors. Newly designed jails and segregated prison populations have contributed to quelling these fears and encouraging informants to cooperate. This post looks at some jailhouse informant issues I have encountered and how to defend against them.
We have all heard the expression innocent until proven guilty. We all know that the proof is on the district attorney to prove beyond a reasonable doubt that the defendant committed the crime charged. We are familiar with those historic words "cloaked with the presumption of innocence". Yet any time someone is charged with the crime of rape of a child people run and hide from those constitutional protections and principles. Opinions are immediately formed. The defendant is now a pariah. Even judges overlook those bedrock ideologies. The only person someone this position can count on is his criminal defense lawyer.
The Massachusetts joint venture laws are perhaps the most confusing for jurors to appreciate and understand. A joint venturer is someone who aids or assists in the commission of a crime. This is the person or people who help the principle do the actual act. Helping someone escape or acting as a lookout can also be acts that impart responsibility as a joint venturer. It is the obligation of the district attorney to prove beyond a reasonable doubt that the joint venturer had the same intent as the principle; that he or she intended that the crime be committed. Mere knowledge that a crime is being committed or mere presence at the crime scene is not enough to satisfy the prosecution's burden of establishing a joint venture. All of that is understandable but here is where the law becomes problematic. A jury can infer the mental state of the joint venturer based the circumstances of the case. So what does the district attorney do in cases where many people are caught and present at a crime scene? They charge them all with the crimes and let the jury make the determination as to each person's intent. This is completely unfair, disingenuous and downright dangerous. The following recent Brockton cocaine trafficking arrest demonstrates my concerns.
The Privilege Against Self-Incrimination After Testifying Under Oath: Commonwealth v. Martin, 423 Mass. 496 (1996)
There was once a time in Massachusetts when a witness who had already testified before a grand jury could simply invoke his privilege against self-incrimination and avoid having to testify in court. Then, in the mid 1990's, when street gang violence was perhaps at its worst in Boston, things started to change. Prosecutors started to fight the trend of violent gang members who witnessed crimes refusing to testify. One way of doing this was to put the witness in the grand jury and lock him into his testimony. Many of these witnesses agreed to testify at this "closed" proceeding under the erroneous belief that they would never have to testify against the defendant in open court. I was often told that police officers and unscrupulous district attorneys would create this false sense of security. Then, when called to trial the witnesses would either feign memory loss or refuse to testify. This tactic was challenged in 1996 in the case of Commonwealth v. Martin, 423 Mass. 496 (1996).
This question is brought up in my office several times each month. Someone is arrested and charged with drug trafficking. They had very little or no drugs on them. Or, they were caught selling a small amount of a controlled substance. Small meaning substantially less than the threshold amount needed to prove trafficking. They get arrested and arraigned in court. They are shocked to find out that they have been charged with trafficking. How can they charge me with this? An article I read earlier today gives an example of this. Erik Owen, an Andover, Massachusetts resident was arrested on drug charges in Andover. As a result a location in a neighboring town was searched. There, the police found in excess of two hundred grams of heroin. This was certainly enough product to charge heroin trafficking. The cops also found a firearm and bullets. Owen was charged with trafficking heroin over two hundred grams.
An Unlawful Massachusetts Felony Drug Arrest: Can The Cops Make You Get Out of Your Car After a Routine Stop?
Do you ever wonder why "routine" motor vehicle stops often seem to result in major drug busts? How is it that the cops just happened to pull someone over and suddenly find large quantities of drugs in the car, on the driver and in the possession of the passenger? Is it because of good police work? Is it luck? Or is it more likely a violation of your constitutional rights that if properly attacked can result in suppression of the drugs and a dismissal of your case? This post examines a western Massachusetts motor vehicle stop that resulted in three people being charged with felony possession with intent to distribute drugs and conspiracy.
Wareham Drug Trafficking Arrest: Criminal Lawyer Discusses Arrests Based on Surveillance Observations
Drug arrests are posted in media outlets throughout Massachusetts several times every day. The basis for these arrests is often the representation that surveillance of suspected drug dealers was conducted for weeks or months. Usually the suspects are driving cars. The cars are followed by the police and ultimately an arrest is made. What I find suspicious about these representations is that police observe a routine pattern of conduct that they see for a particular period of time. Then, all of the sudden, one day they decide to stop the suspect's car. And guess what? That day the police find drugs in the car. This post looks at whether benign observations can legally lead to stops, searches, seizures and arrests without more.
Peabody Massachusetts Heroin Trafficking: Lawyer Analyzes Probable Cause For Issuance of Search Warrant
Over the past several years a trend has developed enabling law enforcement to obtain search warrants for homes based on anonymous tips. Tipsters using apps that connect to local police departments provide information that the cops otherwise would not have had. The application is downloaded to smartphones and has several features geared towards improving public safety. Among these features are the ability to submit tips, ask questions, comment on police conduct or misconduct and access a local police department website. In a recent case in Peabody, Massachusetts a tipster used MyPD to complain to the police about suspected drug activity. In this case the investigation resulted in a search warrant execution and felony drug arrests of a juvenile and an adult. This post examines whether the police officer's observations establish proper probable cause for the issuance of the search warrant.
Drug crimes arrests are made every day in Massachusetts and in virtually all cities and towns. No municipality is immune to the current drug problems plaguing this state. Newspaper articles of arrests and drug busts flood the internet daily in support of this statement. What many articles do not make clear however is what exactly happened. Rather, there is a tendency to post headlines only; i.e. that an arrest was made in a particular town for a particular charge. You don't know how the arrest was made, why the arrest was made or just how strong the district attorney's case is relative to the person being charged. Take for example the recent arrest of Brandon J. Sones and Michael Russell, two twenty-four year old men arrested in Marlborough and charged with a variety of Massachusetts drug crimes. Just how serious are these cases? What if anything will they be convicted of? What did they really do? Based on the press release alone this post takes a look at some thoughts I have in this case.
About six months ago the Massachusetts Legislature passed a law raising the age for adult prosecutions from seventeen to eighteen. The law had prospective application. There is however one school of thought that this law applies to cases that were pending at the time the law went into effect. Thus, a seventeen year old charged in adult court whose case was pending when the law passed could possibly have his case dismissed upon request. This is exactly what happened earlier this week when a Lowell criminal defense lawyer asked the judge to dismiss a breaking and entering case against her client. The crime was committed in July 2013. At that time the defendant was seventeen years old. He is now eighteen. The law became effective on September 18, 2013.
Police and district attorneys in Massachusetts have a tendency to charge people with crimes that are much more severe than the crime that they believe was actually committed. They are not supposed to do this. They are supposed to charge people solely for the crime they truly believe was perpetrated. The classic example of this is Massachusetts drug cases. Take for instance the case of Andre Jacobs, a twenty year old Stoughton, Massachusetts resident who was approached in his car by the police for a purported motor vehicle infraction. When the police approached him he made some "furtive movements" that led the officers to search. They found five and one half grams of heroin and some cash. Jacobs was charged with possession with intent to distribute heroin. This is a felony in Massachusetts and a very serious one at that. But why was Jacobs charged with possession with intent as opposed to simple possession? The answer is easy. Because that is the larger crime and one that is punished more severely in Massachusetts. This post examines the motives behind criminal charges in Massachusetts, particularly as they relate to drug crimes.
Once again I wake up and grab the local Lawrence, Massachusetts newspaper and read about another heroin bust. This one involved an investigation spanning Lawrence, Haverhill and Methuen, Massachusetts. The arrests were made after a brief investigation into local heroin use following several local overdoses, some fatal. The first thing that catches my eye is the case of Carl Saccoccio from Somerville who apparently drove to Lawrence to purchase a bag of heroin. Whether this was for recreational purposes or to support a habit is unclear but for certain there was no felonious intent. So what happened here is that rather than catch dealers or suppliers the cops caught, arrested and charged users. Catching users is apparently easier than catching distributors. This article identifies Saccoccio and fourteen others as being arrested for possession of heroin. No one was arrested for dealing. Most of the arrestees had outstanding warrants and I would be that nearly all of them have criminal records for drug convictions. Six of the individuals arrested are from New Hampshire or Maine.
Will Murder by Extreme Atrocity or Cruelty be Redefined in Massachusetts? The Concurring Opinion in the Case of Commonwealth v. Berry, 466 Mass. 763 (2014)
First degree murder in Massachusetts can be proved by the district attorney through one of three theories. One is by deliberate premeditation. To prevail under this theory the prosecution must show an intent to kill and that the decision to do so followed a period of reflection. The second way is through the felony murder rule. There, the prosecutor can secure a conviction by showing that the victim was killed during the commission of a felony that is punishable by a life prison sentence. The third way is with extreme atrocity or cruelty. Under this theory the jury must find that one of seven specific factors existed at the time of the killing.
In almost every case involving child pornography prosecutors in Massachusetts are faced with what should be a difficult decision: to charge possession of child pornography or to charge distribution of child pornography. Let's look at some common facts. Rarely, if ever is a defendant caught with one image or a few images. This is because child pornographic materials are accessed through file share programs. The files that people receive though peer to peer networks usually contain scores if not hundreds of images. Under Massachusetts law this permits the prosecution to charge the more severe felony, distribution of child pornography. And usually, the prosecution does just that, it charges distribution. However the charge of possession, a lesser included felony is typically charged as well. This post examines why that is done and some thoughts on defending these cases.