Most Massachusetts district courts hear criminal matters on a daily basis. There are many criminal cases however that never find their way into a courtroom. These cases get resolved before a clerk magistrate at what in known as a criminal clerk’s hearing. This is a proceeding to determine whether a complaint will issue. The process for issuing a criminal application is simple. Either a law enforcement official or a civilian file forms in the clerk’s office stating facts supporting what this person perceives to be a crime. The clerk’s office schedules a hearing date and notifies the parties by issuing a notice in the mail. This post discusses what happens at a hearing on an application for a criminal complaint in Massachusetts.
Most criminal cases in Massachusetts are resolved without the need to go to trial. Cases get dismissed, evidence gets suppressed, people get pretrial probation and some people plead guilty to their criminal charges. The majority of cases resolved in the Massachusetts district courts are continued without a finding. In essence that means that the accused admits to sufficient facts, or pleads guilty to those facts that support the underlying criminal offense. The judge refuses to accept the admission or plea. Instead, the case gets continued for a period of time during which you are, for all practical purposes on probation. If you successfully complete the probation the case gets dismissed. At that point you can swear on job applications or elsewhere, and under the pains and penalties of perjury, that you have no criminal record. For most people this is a great result. For others it can be a disaster. This post addresses the question “will a continuance without a finding (cwof) affect a professional license?
One of the toughest decisions defendants in criminal cases have to make is whether or not to go to trial on their case. Some people have no choice. They have been charged with a crime where there is a minimum mandatory sentence as with drug trafficking cases and the district attorney refuses to break the case down. Or, perhaps the case is one that cannot be continued without a finding and a guilty finding will result in a loss of employment or the loss of a professional license. In those instances the decision is easy. Go to trial and hope for an acquittal. Most of the time however the decision is not that easy and the defendant has to weigh the pros and cons of going to trial. When my clients consult with me about this decision the one question they always ask “will my sentence by worse if I go to trial and lose?”.
It is the right of the district attorney and the defendant to call witnesses to testify at trial. Most people dread the process. They don’t want to get up before a jury, take an oath and testify against someone. Others don’t want the inconvenience of sitting around a courthouse for hours, waiting to be called to the witness stand. Some people are afraid that if they testify they might get in trouble themselves. It is this last category of people who call my office asking me for help. This post examines your rights and obligations when called to testify as a witness at a criminal trial in Massachusetts. Continue reading →
This past Saturday night in Hingham, Massachusetts the police broke up a house party. While doing so they arrested sixteen minors and one adult. The minors face charges of Minor in Possession of Alcohol and Disturbing the Peace. The homeowner is also being charged with a crime; Violating the Massachusetts Social Host Law. When the police responded to calls complaining about the party bear bottles were hurled at them. Backup officers were called and arrests were made. Several other youths fled into the woods and were not apprehended. The case is being prosecuted in the Hingham District Court.
Lawyers Who Defend Social Host Violations in Massachusetts
While I am not sure exactly under which statute the homeowner is being prosecuted Massachusetts General Laws has criminal provision for people who provide alcohol to people under the age of twenty one. The law, Massachusetts General Laws Chapter 138 Section 34 states that anyone who gives any alcoholic beverage to someone under the age of twenty one is guilty of a misdemeanor and can be sentenced by a fine of two thousand dollars and a one year jail sentence.
As a Massachusetts Criminal Lawyer I see these charges typically being filed this time of year. They stem from high school graduation parties. Most parents are not aware of the law and cannot foresee problems with permitting minors to drink alcohol at their homes on these occasions. Many adults reflect back to when they graduated from high school remembering how they celebrated that day. They figure there is no harm in passing along the tradition. They assume the graduates will act appropriately and the event will be a happy one that runs smoothly. In doing so they are unaware of several factors that can result in them being charged with a crime. The laws have changed. Since the drinking age was raised fewer high school students have access to alcohol. Beer has been passed over for vodka or other types of hard alcohol. It is easier to conceal. It also however leads to acute intoxication that can be hazardous to anyone, especially the inexperienced high school aged drinker. When the police get called to a house party where minors are consuming alcohol they cannot ignore what they see. Arrests are made, parents are called and criminal charges are filed. And now, the parents hosting the party get charged as well. This case is a perfect example of what happens in these circumstances. The minor drinkers could not control their behavior to the point where the police were called. To compound matters they threw bottles at the officers. Obviously this cannot be overlooked and the person who permitted them to do so is facing criminal charges in court.
Massachusetts General Laws Chapter 276 Section 100C provides for Sealing Criminal Records in Massachusetts. The law states that anyone who has been acquitted by a judge or a jury or charged with a crime that was no billed by a grand jury or no probable cause was found by a judge warrants the sealing of such record. In such cases sealing is done automatically unless the accused makes clear in writing that he or she does not want the case sealed. If a case has been dismissed or if the district attorney files a nolle prosequi then a judge can order the matter sealed if substantial justice would best be served by sealing. If a case is sealed the accused can properly state that he or she has no criminal record.
Here are some things you should know about sealed records in Massachusetts. They are different from pardons. Someone who is pardoned still has an unsealed record in Massachusetts. Sealed records can in some cases be accessed by law enforcement entities. Sealed records are, in and of themselves records in some context. To many, particularly people involved in the Massachusetts Criminal Legal System, a sealed record suggests that the accused at one time faced a Massachusetts Sex Crime charge. Sealed Records in Massachusetts also signify, correctly or incorrectly that there was some wrongdoing on behalf of the accused. In other words, when records are sealed in Massachusetts they are still in existence, just unavailable to the public.
There is however an Expungement Law in Massachusetts. Massachusetts General Laws Chapter 6 Section 171 has a provision that requires the criminal history systems board to enact rules that assure the purging of records once ordered by a judge. Under Massachusetts common law courts can exercise a power to expunge records of criminal charges. To prevail on a Motion to Expunge in Massachusetts the applicant must show that the records sought to be expunged have minimal or no value to law enforcement. The action to expunge is brought against the keeper of the records for the entity holding the materials about which expungement is sought.
People who have had involvement with the criminal legal system in Massachusetts and are considering Sealing or Expungement should contact a Massachusetts Criminal Lawyer. The manner in which you proceed depends on several factors. What was your involvement in the activity? How was the case resolved? How is that impacting your life now? What do you do for work? What were the charges that you faced? How old were you when the incident occurred? Were you represented by a lawyer or did you represent yourself? Was the underlying matter a Drug Crime, a Sex Crime, a Violent Crime?
This past Saturday Vincent Bencivenga of Lawrence, Massachusetts, Josette Osorio of Haverhill and Mark Hatch of Methuen made a fake video of a stabbing during the Feast of the Three Saints festival in Lawrence. The trio used video cameras and a cell phone camera to record the event. Not realizing that the act was a spoof, people attending the festival called the police after observing Osorio wearing a black trench coat and carrying a machete that appeared bloody. When the police arrived Osorio and Bencivenga identified Hatch as the ringleader claiming that the fake stabbing video was his idea and that the intention of the three was to put it on YouTube. Hatch was apprehended a short time later after initially evading the police. Hatch was charged with Disorderly Conduct, Resisting Arrest, Making a False Police Report and Assault and Battery on a Police Officer. Osorio and Bencivenga were charged with Making False Reports to the Police and Disturbing the Peace. The cases are pending in the Lawrence District Court.
Lawyers Who Defend Criminal Charges in Lawrence
It is not often that I blog on the Crime of Disturbing the Peace in Massachusetts. While every Massachusetts Criminal Lawyer has at one time or another defended such accusations the crime is relatively minor and in my opinion used when the conduct of the accused is more of an annoyance than a crime. The punishment for a conviction of this crime supports this suggestion. Massachusetts General Laws Chapter 272 Section 53 provides for a maximum punishment of a fine of one hundred fifty dollars for a first time conviction of this crime. The proscribed behavior contemplates a person’s “purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof. There is a tremendous amount of subjectivity associated with the Criminal Charge of Disturbing the Peace in Massachusetts. This in and of itself often prompts prosecutors to voluntarily dismiss these charges or to permit a resolution that does not involve a criminal conviction. This is particularly true where the defendants do not have criminal records and their actions or more consistent with a lack of judgment than with a criminal intent. All of this appears to be fitting for the defendants in this case.
The crime of Making a False Report to a Police Officer has a more sever potential punishment, one year in jail. The statute, Massachusetts General Laws Chapter 269 Section 13A contemplates such actions as an obstruction of justice. I have never seen this great a sentence imposed for a conviction of this crime. Usually, this charge is resolved by a dismissal or something less than a conviction if properly defended.
Finally, Resisting Arrest and Assault and Battery on a Police Officer have become relatively transparent criminal offenses in Massachusetts. Judges, prosecutors and defense attorneys all accept that often times police get a little aggressive when apprehending suspects. This is more so when flight or a chase is involved. The police get physical with the accused and then to protect themselves from a Civil Rights Lawsuit they accuse the defendant of Resisting Arresting and Assaulting them. Police officers need to be more careful in making these accusations these days. Everywhere you look there are surveillance and security video devices and a thorough Massachusetts Criminal Attorney will get the footage and mount his defense.
During the jury selection process a prospective juror told the prosecution, judge and defense that he would rather stay home in bed than be a juror on the Roger Clemens Perjury trial case. The twenty seven year old unemployed juror will now get his wish. After repeatedly sleeping during the trial testimony and showing up late, the judge dismissed the juror. This comes on the heels of the judge warning the parties that the jurors appeared bored and imploring the lawyers to speed things up.
So what does a Massachusetts Criminal Lawyer do with the problem of sleeping jurors? Well the first thing to do is to bring the matter to the attention of the judge. Massachusetts law makes clear that a defendant’s fundamental right to a fair trial may be put in jeopardy if a juror sleeps through testimony. A judge is obligated to make sure that all jurors hear all of the evidence. Pursuant to Massachusetts General Laws Chapter 234A Section 29 a judge has the discretion to dismiss a juror at any time if he or she determines it is in the best interests of justice. The judge may order a hearing to establish a record pertaining to the issue of a sleeping juror. The defense lawyer should attempt to have the judge conduct a hearing on the matter to preserve the observations of others, particularly in the event that the judge refuses to act in accordance with the defendant’s requests on that issue. Massachusetts judges have dismissed jurors who were acquainted with the lawyers or witnesses. One Massachusetts judge dismissed a juror who smoked marijuana to remain awake during a trial. A sitting juror was dismissed where his son was arrested and placed in the same jail as the defendant during the pendency of the trial. Sitting jurors who had travel plans were excused once it was determined that they could only deliberate in a limited time frame. Illness can serve as a reasonable basis for dismissing a juror. Dismissing a deliberating juror due to child care problems was found necessary and appropriate. A juror’s failure to reveal his criminal history warrants his removal.
Massachusetts case law states that a judge’s decision to remove a sitting juror will not be found violative of the defendant’s rights unless doing so constituted an abuse of discretion. This suggests that it is critical for the defense to try to get the judge to have a hearing on any challenge to a sitting jurors’ competence to remain. Even if the judge refuses to conduct a hearing making a record with affidavits supporting the defendant’s position on removal will be critical to the appeal.
A forty year old Foxborough, Massachusetts man was charged with Threatening to Commit a Crime in the Wrentham District Court. According to reports, the defendant told a Foxborough selectman that he was “a dead man” if he did not change his position on casino development in the town. The defendant was arrested and a stay away order was placed into effect. A judge sitting in the court ordered bail set at five thousand dollars.
Wrentham Court Criminal Lawyer
The crime of Threatening to Commit a Crime in Massachusetts is established through Massachusetts General Laws Chapter 275 Section 2. The law states that “[i]f complaint is made to any such court or justice that a person has threatened to commit a crime against the person or property of another, such court or justice shall examine the complainant and any witnesses who may be produced, on oath, reduce the complaint to writing and cause it to be subscribed by the complainant.” The elements of this offense include an expressed intention to commit a crime on someone coupled with “an ability to do so in circumstances that would justify apprehension of the recipient of the threat”. This crime is limited to cases where the accused actually causes fear to the victim. The victim’s fear must be justifiable a justifiable fear. This crime is a misdemeanor in Massachusetts. There is a maximum six months jail time for a conviction and a fine of up to one hundred dollars.
This crime is one of the most common in the Massachusetts district courts. Massachusetts Courts have set a broad interpretation of what constitutes a threat and certainly in this case the prosecutor could make out his case if the witness testified as the reports suggests. These cases are usually dismissed on court costs. Sometimes pretrial probation is offered as a disposition. Rarely do you see these cases going to trial. Prosecutors are not usually adamant about an imposition of guilty on Threats cases. The charge of threats is often ancillary to a much larger charge encompassing more serious conduct. This case is the first time I can remember a judge setting bail on a charge of Threatening to Commit a Crime without additional charges being brought. A bail of five thousand dollars is particularly high and I imagine that the complainant’s status as a selectman had something to do with this. Regardless of the bail situation however, on cases charging Threats only a Massachusetts Criminal Attorney should be able to resolve this case in a way that does not leave the accused with a criminal record.
Last year a Marblehead, Massachusetts man was arrested following a bizarre incident involving the improper use of Facebook. Apparently the forty one year old man and the woman knew one another. She claims that they were just friends. On one occasion while alone with the man the woman fell asleep. She eventually told him that she did not want to spend time with him anymore. He then opened a Facebook page using her name and personal information. He also posted pictures he had taken of her during their relationship. A friend told the woman about the Facebook page and the pictures. The police were called. Their investigation led them to the man. The investigation also suggested to them that the woman had been digitally raped. Charges of Rape, Photographing a Person in the Nude Without Consent, Indecent Assault and Battery and Identity Fraud have been filed. The case was indicted and is now pending in the Essex County Superior Court in Salem. The article goes on to say that the defendant has a dating profile on “Plenty of Fish”. His profile boasts having sex in public and threesomes.
As would be the case with most Massachusetts Criminal Attorneys this case intrigues me. Not because of the actual charges but due to the timing of the accusations. It is clear that nothing came about in a criminal context during the pendency of the “relationship”. Rather, once the Facebook page was posted the woman clearly became angered and felt victimized. Rightly so given that her pictures were posted on Facebook without her consent. Even according to the Salem News, the defendant’s lawyer concedes this point. And yes, the charge of Identity Fraud seems viable and perhaps indefensible. The other charges are not as easily provable. The defendant will probably defend this case on the theory that all acts were consensual, including the photographing of the woman naked. It will be difficult for the prosecution to prove beyond a reasonable doubt that these acts were not consensual. First off, when were these pictures taken? The woman is going to say that it all occurred when she fell asleep. What links that date to these photographs? How is the prosecution going to be able to show beyond a reasonable doubt an absence of consent. To the average juror it will appear that the relationship was somewhat significant. After all, how many people fall asleep in the presence of others with whom they feel anything less than comfortable? Here is something else to think about. Did the woman meet the defendant through the dating site? If she did she must have know of his sexual proclivities and found them intriguing at a minimum. How long had they been together and what was the nature of their relationship?
The Identity Fraud statute in Massachusetts is G.L. c. 266 Section 37E. The crime is a misdemeanor meaning in Massachusetts that no state prison sentence is authorized. This is minor compared to the remaining charges the defendant is facing. The Rape charge is a life felony and the Indecent Assault and Battery charge is punishable by up to five years in state prison.