Massachusetts General Laws Chapter 276 Section 58A permits the district attorney to move for detention if the defendant is charged with a felony that has an element of physical force or a threat thereof to an individual. Some Massachusetts district attorneys offices have a policy requiring their assistants to move for detention under this statute for any case involving the alleged use of a firearm, domestic assault and battery or intimidation of a witness. They often do this without regard to the plausibility of the underlying allegations. Prosecutors rarely take the time to investigate the allegations before requesting detention. Instead they rely on what has become an improperly applied nuance to the law; G.L. c. 276 Section 58A(4). This post examines why some Massachusetts judges delay dangerousness hearings and what can be done to avoid unnecessary detention. Continue reading →
In today’s world of cable television, the Internet and social media prosecutors are often afraid of making reasonable bail arguments at criminal arraignments. They take a look at the charges, scan the police report and in an abundance of caution they move for detention under the Massachusetts dangerousness statute. Judges usually detain the accused for a short period of time, two to three days being the norm. This period of incarceration is naturally inconvenient at a minimum. However, it affords your lawyer time to effectively work towards your release and better prepare your defense. Dangerousness hearings in Massachusetts can prove beneficial to the ultimate result in your case. Continue reading →
The district attorneys in most Massachusetts counties have strong training divisions. Experienced prosecutors run internal seminars educating young lawyers on a myriad of subjects. Among other things these seminars include how to try a case, the amount of bail to request for particular matters, legal standards for evidentiary challenges, trending criminal law issues and more. Continue reading →
Several times each week and sometimes multiple times in a day I am in a court in Massachusetts representing a client at his arraignment. This proceeding is so familiar to me that I often take for granted that my clients will know what to expect and how the arraignment process in Massachusetts works. In truth, unless you have been involved in the criminal legal process in the past you probably don’t know what will happen at this hearing. This post examines the process and what you should expect on the day of your arraignment. Continue reading →
If you fail to appear in court when scheduled to do so you will be defaulted. This may or may not be your fault but regardless you can assume that if you are in default an arrest warrant has issued. So naturally, when you finally do appear in court you can expect that the issue of bail will arise and you will have to convince a judge to release you or to set an affordable, modest bail. Default warrants and bail hearings in Massachusetts go hand in hand. This article looks at some issues associated with both and how you can help yourself when you are in default on a criminal case. Continue reading →
One of the questions I am asked by people who expect to be charged with a crime is the amount of bail they will have to post once the case gets filed. The answer varies from case to case and from person to person. The answer to this question also depends on the judge hearing the bail argument, the district attorney prosecuting the case and the county where the case will be prosecuted. There are no formulas for setting bail in Massachusetts. I was recently retained on two very different rape cases and the amount of bail set pleasantly surprised both of these clients. Each asked me “is there a standard bail for rape cases in Massachusetts”. This post explores this issue. Continue reading →
One of the things Massachusetts criminal defense attorneys have to consider when doing an arraignment is the potential issue of bail. Many prosecutors know very little about the cases their cases at the arraignment stage; particularly in the district courts. They arrive at work just before 9:00 a.m. and receive a stack of files. They review the police reports, often superficially, and look at the criminal record of the accused. Then, often without any investigation or contact with the alleged victim they request bail. Judges in the district courts, often fearful of bad publicity, set a bail. If the defendant has no immediate access to that amount of money, or will not ever be able to post that amount of bail they will ask their lawyer: How can I get my bail reduced? Here is the process and a recent case showing that all is not hopeless. Continue reading →
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.
As a rule, bail in Massachusetts is set by a clerk, an assistant clerk or a judge. Clerk’s and assistant clerk’s set bail after a person is arrested and held either at a police station or jail and prior to the person being arraigned on the pending criminal charge. Judges set bail after arraignment usually at the request of the assistant district attorney but sometimes on their own volition. The purpose of bail is to ensure the defendant’s appearance at future court appearances. Several factors are considered prior to imposing bail. Roots in the community, the nature of the case, the criminal history of the accused, prior defaults, risk of flight and the safety of the community constitute the majority of issues taken into consideration when setting bail. Courts also look to see if the defendant has any pending cases at the time of the commission of the crime.
The range of terms for an order of bail varies significantly. I have had judges impose a bail of fifty dollars on my clients. I have also had clients held without bail. This is most often for extremely violent crimes. For crimes that have considerable mandatory minimum sentences judges might hold the defendant without bail particularly if the accused is not a citizen of the United States. Orders of bail that cannot be paid by the defendant are often appealed to the superior court as a matter of right. There do exist further appellate rights for bails that people want to challenge, i.e. to the Appeals Court, however this right is rarely exercised and even less frequently successful.
Sometimes judges set bail orders with attached conditions that are absurd but not likely to get reversed. I recently represented a motorcycle gang member who was released over the objection of the prosecutor to bail conditions that bordered on ridiculous. The client was ordered to wear an electronic monitoring device. He could not leave his home. He could not go to work. He could not use a cell phone. Notwithstanding a recent back surgery he could not take his prescription medications without the express permission of the probation department and the judge who set the conditions of bail. Nevertheless the client opted to accept these conditions rather than await trial in jail.
Perhaps the most onerous of all bail orders pertain to sex offenses. Almost everyone who is charged with a sex crime and is able to post bail is forced to wear a GPS device. The defendant is often not permitted to go within a specified distance from schools, parks, playgrounds or children. This distance ranges but five hundred feet is not uncommon. While this might not present a large burden to someone who resides in a rural area it is nearly impossible to honor for people who live in cities such as Boston or Lawrence. In these cases, once the defendant is out of custody we try to get the judge to modify the conditions to permit the defendant to work and live in areas that otherwise would constitute a violation of the bail conditions.
According to the Salem News, last week a Beverly, Massachusetts man went into a Tedeschi convenience store wearing a mask and a hoodie. The store clerk was arranging items in the store. He heard someone come into the store. He then saw a man carrying a large semiautomatic weapon demanding money. He complied with the demand and gave the robber between one hundred fifty and two hundred dollars. When he realized exactly how much money he got the defendant expressed disappointment and fled. No arrest was made that day. By the way, the store clerk never saw the face of the man. A few days later the clerk believed that he saw the person who had committed the Armed Robbery just outside of the store. The reason he thought this was the culprit: the man was wearing the same pants and had the same gait. The police obtained an arrest warrant and on Saturday the defendant was arrested. The case is currently being prosecuted in the Salem District Court. Bail was set in the amount of ten thousand dollars.
A central issue to many criminal cases in Massachusetts is the identification of the accused as the person who committed the crime alleged. In Massachusetts it is the obligation of the district attorney to prove identification beyond a reasonable doubt. Mistaken identifications are not uncommon making your choice of a Massachusetts Criminal Lawyer one of paramount importance. Since the arrival of DNA testing there are many people who have been freed from jails and had convictions reversed. Many of these convictions were based on eyewitness identifications that were made in error. I sometimes wonder whether some of these convictions could have been avoided with a better attack on the identification testimony.
Jurors in Massachusetts are instructed on the issue of identification if it becomes a live issue at the time of trial. Judges tell jurors that the witness must have had an adequate opportunity to observe the defendant. Jurors can consider a lapse of time from the time of the commission of the crime until the identification was made. Similarities between the person identified and other people who might have been near the crime scene or had the motive to commit the crime can also be a factor that impacts jury deliberations. An initial failure to make an identification is a factor to scrutinize when deciding guilt or innocence in a case such as this one.
The defendant referenced in this article has a lot work with in terms of presenting his defense. His lawyer did an excellent job arguing mistaken identification issues. I am surprised that the bail was set so high in this case given the suggested weakness of the identification. It would not surprise me to see the bail lowered in this case. I have had cases like this one and tried them to an acquittal. Mistaken identification cases require the services of an Experienced Massachusetts Lawyer.