Massachusetts Criminal Defense Attorney Blog

At four o'clock this morning actress Lindsay Lohan was arrested in New York. It is alleged that Lohan slapped a woman at a New York City nightclub during an argument. The woman did not need medical treatment. Lohan is currently on probation in relation to a theft case having occurred last year. This arrest could result in Lohan being charged with a Probation Violation.

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Massachusetts Probation Violation Defense Law Firm

Assault and Battery Defense Lawyers in Massachusetts

A Massachusetts Criminal Lawyer will often defend alleged Probation Violations in advocate on behalf of the accused at the ensuing Probation Surrender Hearing. This process is often unpredictable and results vary from court to court. The practice of certain probation officers and/or their departments are inconsistent throughout the Commonwealth. For instance, some probation departments routinely recommend incarceration for someone they believe has violated the conditions of his probation. Some judges regularly adopt such recommendations making it almost impossible to get a just result in certain cases. Others will give the probationer a fair hearing and make their determination based on what I consider a more fair hearing. The standard at a probation revocation hearing in Massachusetts is proof by a preponderance of the evidence. The federal standard is "at least to a reasonable degree of certainty". In my opinion the federal standard is more favorable to the accused. This cuts against the Massachusetts trend to provide more protections for the accused than does the federal courts.

In Massachusetts "[a]ny conduct by a person on probation which constitutes a violation of any of the conditions of his probation may form the basis for the revocation of that probation." A violation of the laws as alleged in the Lohan matter would suffice in Massachusetts. There is no requirement that the accused by convicted of the alleged crime that serves as the predicate for the violation. Similarly, an acquittal on the crimes serving as the violation does not end the surrender hearing. A new arrest provides grounds for initiating a surrender hearing. In Massachusetts a defendant's probation may be revoked on hearsay evidence along so long as the hearsay evidence has substantial indicia of reliability. Unreliable hearsay cannot serve as the basis for probation revocation. There is a due process requirement pertaining to Probation Violations in Massachusetts however it is not nearly as strong as that in criminal prosecutions. In essence, all that Massachusetts requires is written notice of the alleged violation, disclosure of the evidence supporting revocation and the right to be heard and to present evidence. The makes it extremely important for the accused to make sure that the Massachusetts Criminal Lawyer he hires has experience with Probation Violation Hearings and familiarity with the judges and probation officers in that particular court.

Continue reading "Actress Lindsay Lohan Arrested on Assault and Battery Charges After Hitting Woman at Nightclub" »

According to a report in Boston.com, Ciro Reyes-Palma, a Massachusetts man was in the middle of a Rape of a Child trial in Great Barrington. He was facing eleven counts stemming from allegations that he committed Rape of a girl over a three year period. The Sexual Assault began in 2009 and continued until 2011. Authorities learned that Reyes-Palma fled to Mexico on Saturday. Despite his default the trial continued. The man was convicted in his absence.

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Massachusetts Rape Defense Law Firm

Lawyers Who Defend Child Rape Cases in Massachusetts

This case brings up the interesting issue of how judges and lawyers handle cases where the accused defaults during trial. Massachusetts Rule of Criminal Procedure 18 states that "[i]f a defendant is present at the beginning of a trial and thereafter absents himself without cause or without leave of court, the trial may proceed to a conclusion in all respects except the imposition of sentence as though the defendant were still present." That is what occurred here. The right to be present at one's trial is deemed waived or forfeited where the accused does one of two things. If he voluntarily absents himself from the trial his appearance is deemed waived. Or, if his conduct is disruptive to the proceedings a judge in his discretion may order the defendant secluded. In the latter situation the defendant is usually placed in a separate room where he can view the proceedings alone. If a defendant fails to show up during the trial the judge has to decide whether the trial should continue or whether mistrial should be granted. The judge's job is to determine whether the defendant's absence is with or without cause and whether or not it is voluntary. Thus, typically some sort of investigation is undergone and a hearing follows. The record must show what efforts were taken to find the defendant and what evidence has been gathered in relation to his default.

Here, I imagine that is what the judge in fact did and decided that given the defendant's flight to Mexico the trial should continue. The bigger problem in situations like this the judge can charge the jury on consciousness of guilt. Naturally, if this instruction is given the jury will believe that the defendant's mid-trial default was due to his belief that things were not going his way and that he was going to be convicted. As a practical consequence, the defendant's sentence will probably be substantially greater than it would have been had he remained in court for the duration of the case. Similarly, he can be charged with another crime for defaulting in the middle of his trial.

Continue reading "Massachusetts Man Charged With Rape of a Child Flees During Trial, Jury Returns Verdict in his Absence" »

A six year old Lynn, Massachusetts girl needed shoes brought up to her elementary school. The girl's mother, Rosilda Lopez was called and became upset. The twenty eight year old mother went to the school and hit the girl in the face two times. The reason: wearing the wrong pair of shoes. Another child witnessed the incident. This child told school officials. It turns out that a school surveillance camera caught Lopez committing the act. Lopez has now been charged with two counts of Assault and Battery in the Lynn District Court.

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Lynn, Massachusetts Violent Crimes, Assault and Battery Defense Law Firm

Lynn, Massachusetts Criminal Defense Attorney

So here is the question raised by this case. Just how far can a parent go in physically disciplining his or her child? The answer is not easy. Spanking is a form of Assault and Battery. Yet spanking has not been outlawed in Massachusetts. In 2007 there was a bill placed before the Massachusetts Legislature proposing a ban on spanking. That bill never passed. Nevertheless, in Massachusetts Assault and Battery cases are brought against parents who have hit their children. In my opinion the line between "spanking" and Assault and Battery has not been adequately distinguished by Massachusetts law. There is a proposed jury instruction which read that a "parent, or one acting in the position of a parent and who has assumed the responsibilities of a parent, may use reasonable force to discipline (his/her) minor child. However, a parent may not use excessive force as a means of discipline or chastisement." Yet all of the Massachusetts cases that discuss spanking conclude that the conduct by the defendant was excessive and thus did not constitute spanking but rather an Assault and Battery. As a Massachusetts Criminal Lawyer I would be concerned any time law enforcement got involved in a matter that the parent characterized as a spanking. Chances are strong that such cases will be prosecuted and most judges will not be helpful to the defense in resolving the case.

Here however the situation is likely different. Lopez's actions are not likely to be justified if 1) the videotape shows excessive physical conduct on her part and 2) if the reason was wearing the wrong pair of shoes. Additionally, the involvement of the Department of Children and Families will complicate the defense. Lopez will want to cooperate with DCF to prevent losing custody of her daughter. There is however a risk to doing so with a pending criminal case. Lopez has a Fifth Amendment privilege that most lawyers would advise her to invoke at least until the criminal case is resolved. The conflicting dynamic between the DCF case and the criminal matter will likely lead to an expeditious resolution of the Assault and Battery case.

Continue reading "Lynn Massachusetts Mother Faces Assault and Battery Charges After Hitting Daughter in the Face at School" »

Last week's Taunton Gazette reports that Leonardo Sanchez, of Lowell Avenue in Providence, Rhode Island has been charged with Trafficking Heroin Over 200 Grams as well as Carrying a Dangerous Weapon. Apparently the police had been investigating Sanchez for over six months. It is alleged that he had been selling large quantities of Heroin to one particular customer for that period of time. Authorities had information that last week Sanchez would be in possession of a significant amount of Heroin at the Silver City Galleria Mall in Taunton. Following up on their lead, the officers set up surveillance and observed Sanchez meet up with his contact. He was grabbed when he left the mall. In his possession the police found over two hundred grams of Heroin as well as a pair of brass knuckles. Sanchez was arraigned in the Taunton District Court where bail was set at forty thousand dollars cash. This case will eventually be prosecuted in the Bristol County Superior Court in Fall River as the district court has no jurisdiction over Massachusetts Trafficking Cases.

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Taunton, Massachusetts Heroin Trafficking Defense Law Firm

Bristol County Massachusetts Drug Crimes Defense Attorney

As a Massachusetts Criminal Lawyer there is an abundance of information that I would need to obtain before deciding how to proceed with the defense in this case. What is obvious is that Sanchez's best chances for success are to show that the Search and Seizure was unlawful. This can only work if the facts of this case support the constitutional challenge. It is clear that Sanchez was stopped in the legal sense. To justify the stop the district attorney needs to show that reasonable suspicion for the police to believe that Sanchez was committing or was about to commit or did in fact commit a crime existed at the time of the stop. Reasonable suspicion can arise from the police officer's personal observations. It can also originate from information supplied by an informant. The latter appears to be the case here. I base that assumption on the fact that the police had knowledge that Sanchez had been supplying someone regularly with Heroin for at least six months, that surveillance had been established prior to Sanchez's arrival and that he was meeting a customer (probable the informant) at the mall. Someone had to alert that police to the time, date and details of this activity in order for them to set up this operation. If this is the case then the district attorney will have to show that the information was credible and that he or she had a basis of knowledge to establish that Sanchez would be in possession of drugs at the mall. Alternatively, if the stop of Sanchez amounted to an arrest, then the prosecution will have to show that it had probable cause to make the arrest. This is a tougher standard to overcome and could be problematic for law enforcement.

Continue reading "Man Accused of Trafficking Heroin in Taunton, Massachusetts Being Held on Bail" »

According to a report in Wicked Local, a Massachusetts teacher's aide has been arrested and charged with some Drug Crimes and Procuring Alcohol for a Minor. It is alleged that the defendant, Jennifer Olsen, twice smoked marijuana with several students. It is further alleged that Olsen provided the drugs. Authorities also claim that the defendant gave alcohol to underage students. Part of the prosecutions' case in based on statements Olsen made through social media and emails. Charges of Procuring Alcohol for a Minor, Possession With the Intent to Distribute Marijuana, a School Zone Violation and Distribution of Marijuana are now pending against the defendant in the Concord District Court.

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Concord, Massachusetts Marijuana Distribution Defense Law Firm

Massachusetts Criminal Lawyer Who Defendant School Zone Violations

The Massachusetts School Zone Law was recently amended to more fairly reflect the original design of the law. The old law made it a crime to distribute or possess with the intent to distribute drugs within one thousand feet of a school zone. The hours of operation of the school were irrelevant and a conviction for this crime required a two year house of correction sentence to be imposed from and after another committed sentence. The law was harsh, unforgiving and unfair. This past summer the law was amended. Now, the illicit activities must occur within three hundred feet of a school zone and the hours implicating the law are five in the morning to midnight. There is still a mandatory two year sentence however there is a provision permitting parole after the person has served one half of the maximum sentence. There also exist circumstances wherein a person is not eligible for parole, such as if violence or a weapon was used during the commission of the crime.

So what exactly does this mean for Jennifer Olsen? If the district attorney's insists on going forward on the School Zone Violation Olsen will either have to go to trial and win or go to jail. In most instances, particularly where a person does not have a criminal record, the district attorney's office "breaks down" the School Zone Charge on the condition that the accused plead guilty to the underlying drug charge. Sometimes the prosecution agrees to reduce the felony to a misdemeanor and will consent to having the case continued without a finding. In that situation, if all goes well for the defendant, he or she will not have a criminal record once the probationary period is successfully completed. Here however, this situation differs. Olsen was in a position of trust that was violated when she provided drugs and alcohol to minors. This was also done on school property. The district attorney himself commented on how troubling these allegations are particularly where Olsen was entrusted to help educate students at this school. If however this case is difficult to prove from a legal perspective, then perhaps a reduction in charges will follow.

Continue reading "Massachusetts Teacher's Aide Arrested, Charged With Possession With Intent to Distribute Marijuana, School Zone Violation" »

In 2003 a Plymouth County Massachusetts jury sitting on a murder case in Brockton convicted Solange Anestal of murder in the first degree. The facts of the case are as follows. The defendant and her boyfriend lived together in an apartment in Brockton, Massachusetts. On June 26, 2003 the two were home with two friends. Anestal and her boyfriend, Petitry got into an argument. Petitry did not want her going out, where she would likely spend the night with other men smoking pot. Anestal complained over the phone to a friend that Petitry was treating her like a slave, refusing to permit her to leave the house. Petitry threatened to move out and started packing. He and the defendant argued loudly. One of the friends in the house saw Petitry holding Anestal down on the bed. She was spitting at him, telling him to move. The friends heard glass break and then saw Anestal stab Petitry in the chest with some broken glass while stating that she was going to kill him. Petitry died from the stab wounds.

Anestal defended on the theory that at the time of the crime she lacked criminal responsibility. In particular, she claimed that she suffered from post traumatic stress disorder resulting from years of emotional and physical abuse. The abuse started when she was one year old and continued until the time of the stabbing. The abuse involved family members and several men with whom she had relationships. Medical testimony supported the defense. The jury rejected the defense finding that Anestal acted with deliberate premeditation.

On appeal the defendant raised several issues. Two of these issues establish the basis for reversing the conviction. The first, that the judge improperly admitted prior bad act evidence against Anestal. Particularly that she had hit her young son twice and that the defendant was the subject of a DSS investigation. The second involves the trial judge's refusal to instruct on the excessive use of force in self-defense. If the jury believed this to be the case it could properly have convicted the defendant of voluntary manslaughter instead of murder.

Read Case: Commonwealth v. Anestal.pdf

Of particular interest to me as a Massachusetts Criminal Defense Lawyer is the prior bad act issue. All too often judges in the trial courts in Massachusetts will permit the introduction of prior bad act evidence against a defendant. They rationalize that doing so is permitted when the prosecution is offering the bad act evidence "common scheme, pattern of operation, absence of accident or mistake, identity, intent or motive." This type of evidence is also admissible to rebut contentions made by the defendant at trial. The threshold for admitting such evidence is low and rarely will a case be reversed on this basis. This case however is different. The Supreme Judicial Court correctly recognized that admitting this evidence likely had an improper impact on the jury. The prior bad act evidence in this case told the jury more about Anestal than they were entitled to know. The court believed that such information was unfairly prejudicial and that the right to a fair trial was violated.

Continue reading "Massachusetts Trial Judge's Improper Admission of Highly Prejudicial Evidence Results in Successful Appeal From Murder Conviction" »

Police in the Weymouth and Cohasset areas have made their third arrest as part of a lengthy investigation into Drug Dealing Activities in those Massachusetts communities. Enrique Camilo of Boston was arraigned in the West Roxbury District Court on charges of Trafficking in Cocaine, Second and Subsequent Offense. His bail has been set at one hundred thousand dollars. Camilo was arrested last week after authorities found just under a pound of cocaine in his home. The arrest and arraignment occurred on October 26, 2012, eight days after a Search Warrant was executed at Camilo's home. The search revealed over four hundred grams of cocaine, some cutting agents and assorted Drug Paraphernalia. Materials in the home link Camilo to the dwelling however he was not present at the time of the search. Camilo is also being charged in Norfolk County for another Massachusetts Cocaine Trafficking Case that is unrelated to this matter. It is alleged that the drug trafficking activities originated in Boston and were consummated in Cohasset. Others charged with Cocaine Trafficking as a result of this investigation are Gabriel Martinez and Rafael Torres. Martinez is from Dorchester.

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Massachusetts Cocaine Trafficking Defense Law Firm

Drug Trafficking Defense Lawyer in West Roxbury

Any Massachusetts Criminal Defense Lawyer will tell you that he or she loves a case like this one. Whenever a Search Warrant is executed at a home at a time when the defendant is not present there is a real chance that a jury can be convinced to acquit the defendant. Jurors want significant proof before they convict someone of a major crime. And yes, Drug Trafficking in Massachusetts is a major crime. Jurors know this. They know that drug trafficking convictions implicate mandatory minimum jail sentences. As such, juries want proof that the accused committed the crime for which he stands trial. They want fingerprints or DNA on the drugs or on the Drug Paraphernalia. The district attorney will likely have papers found in the home linking the accused to the property. But in all likelihood there will be ample evidence that others lived in or had access to the home. Utility bills, rental agreements, mail, personal effects, clothing and things of that nature will not all point to the defendant as the person responsible for trafficking these drugs. If the prosecution has evidence that the defendant was observed engaging in what are believed to be drug activities around the time the warrant was issued the jury will wonder why he was not arrested at that time. This concern often leads to not guilty verdicts. The failure to arrest suspects in drug cases at the time of the crime can be fatal to the prosecutor's case. The delay between finding the drugs and arresting the defendant works to the defendant's advantage in this situation.

Continue reading "Boston Man Held on High Bail After Arraignment For Cocaine Trafficking in West Roxbury Court" »