I was recently reading and article in the Lawrence Eagle Tribune about Methuen, Massachusetts police officers with assault arrests in their background. The article, written by Douglas Moser on July 16, 2015 identifies two Methuen officers charged with violent crimes. One was facing with assault and battery by means of a dangerous weapon. The other was charged with assault and battery on police officer, resisting arrest and disorderly person. All cases were dismissed. None of this prevented the men from becoming police officers. I have no problem with this. However, when reading the article I am reminded about the hurdles attorneys face when defending assault and battery on police officer cases. Continue reading →
Anytime you can dispose of a criminal case and not have a record you should really think about taking the deal that is on the table. Unless there are potential collateral consequences the risk of going to trial usually outweighs the reward. Obviously this is not always the case. There are times when an experienced lawyer will be confident recommending challenging a constitutional violation or having a jury waived trial over a pretrial resolution. But usually the opportunity for pretrial probation or a continuance without a finding is preferred. There are however times when a decision between pretrial probation for a felony charge or a CWOF for a misdemeanor must be weighed. Here are some thoughts on that dilemma. Continue reading →
Every few weeks I get a call from a perspective client telling me that he or she heard that the cops are looking for them. They want to know what they should do. These people tend to ask the same questions. Do I need a lawyer? What if I just talk to the police to hear what they have to say? Won’t it look bad if I say I have a lawyer? Many of these people think they can put the problem to rest by talking to the cops. They can’t sleep at night. They are worried about the unknown. They want answers now. They want the case over now. The problem is that talking with the police will not help you. It will only hurt you. When I am asked the question “do I need a criminal defense attorney before I am charged with a crime” the answers is always and unequivocally a resounding “yes”. Here is why. Continue reading →
Recently I was meeting with a new client who was charged, among other things with resisting arrest and assault and battery on a police officer. The defendant is a college student who was leaving a party in a Boston neighborhood. His story is unnerving and very common in Massachusetts, particularly for high school and college aged students. I have seen these facts frequently. Fortunately for my clients most district attorneys are familiar with this scenario and the resolution for the accused is typically favorable. Here is the young man’s story, the defenses to the case and the ultimate result.
Just yesterday I signed up a client being charged with malicious destruction to property over $250. This is a felony in Massachusetts. The allegations, at least according to the cab driver are that the passenger disputed the fare and refused to pay. Out of anger the passenger supposedly then broke a piece of the interior of the door. The cab driver called the police and the defendant was arrested. In the past year alone I have had several people meet with me for representation on cases with very similar facts. There is no doubt in my mind that in Massachusetts there is a trend where cab drivers falsify claims of malicious destruction to property. The motivation for this and defenses to the chargers are explored in this post.
Motions in limine are requests brought by the parties and decided by a judge that determine what evidence might be admitted or excluded at trial. These motions are usually filed prior to trial or on the day of trial however they can be presented at any time. Motions in limine are typically brief and concise in form. Some criminal defense lawyers believe that motions in limine are the most important part of trial preparation. This post takes a look at this aspect of criminal trial practice.
A recent article in the Lawrence Eagle Tribune discussed some charges brought against a woman who allegedly allowed her husband to abuse her children. The Essex County District Attorney filed charges against Anne Ladd after her husband Justin had been indicted on forty-one crimes including sex crimes, violent crimes, criminal civil rights violations and more. Prosecutors maintain that Justin Ladd exposed his genitals to the girls, racially disparaged them, hit them, treated them like slaves and tortured them. Anne Ladd has publicly supported her husband and claimed that her daughters have fabricated the story. The district attorney’s investigation suggests otherwise and now Ms. Ladd has been charged with several crimes including the crime of permitting assault and battery on a child. This crime is not often charged in Massachusetts and is the primary subject of this article.
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.
While following the Aaron Hernandez Massachusetts murder case I was struck by the prosecutor’s motion asking Judge Garsh to recuse herself. According to several news sources, Bristol County prosecutor William McCauley claimed that in 2010 Garsh displayed hostility towards him by accusing him of wrongfully excluding evidence. He further complained that this judge undermined his credibility before a jury. McCauley filed a similar motion in 2011 that was never argued. Instead, the case ended up before another judge. Garsh denied McCauley’s motion and will preside over the proceedings and perhaps the trial itself.
While there is nothing novel about asking a judge to recuse himself for cause in Massachusetts it is done sparingly. If the judge decides not to step down from the case the challenging party risks retaliation. Such actions will likely be subtle. Rulings may be less likely to go your way. The judge can use the inflection in his voice to undermine your efforts. Your opponent might be shamelessly embraced in a manner visible to the jury but not captured in the trial transcript. Simply put, if the judge wants to screw you for filing such a motion he can. Now of course retaliation is impermissible yet good luck trying to prove that it happened to you. In this particular case I sincerely doubt that McCauley will suffer consequences for trying to have Garsh remove herself from this case. As a matter of fact, given the media attention this case has been getting and will be getting it will be difficult for Garsh not to bend over backwards to prove that she has no bias towards the prosecution.
On the other hand, I cannot understand why a judge, being accused of bias would not simply step away from a case. Naturally, Judge Garsh’s words “I do not fear or favor the Commonwealth or the defendant” resonate nicely. But why stay on the case? Acceding to a recusal request is not an admission of fear. Nor does stepping away from this case acknowledge agreement that McCauley’s accusations of unfairness are true. There are literally thousands of other cases to sit on. The judge could simply step aside and before doing so rule that she has no bias. She would merely be avoiding any appearance of impropriety and she could then pass the case on to another judge.
Unlike some other states, there is no peremptory challenge of judges in Massachusetts. Alaska Statute 22.20.022 permits a peremptory challenge to a sitting judge if the challenging party files an affidavit alleging that with this judge a fair and impartial trial cannot be obtained. California C.C.P. Sec 170.6 allows for the peremptory challenge of a judge without the need to give the court a factual basis for its belief that the judge is biased. These laws make a lot of sense. They tend to keep reminding judges of the need to be fair and respectful of the litigants. They promote confidence in the judiciary. They eliminate favoritism. If a party is uncomfortable with a perceived relationship between the judge and an opponent he can remove the judge from the proceeding. This is a nice check against judicial ignorance. Judges who are routinely victimized by peremptory challenges might modify their behavior. They might read the advance sheets. They might be nicer to the litigants. They might learn to act appropriately.
A twenty-five year old Woburn, Massachusetts man is being charged in Essex County for a stabbing incident that occurred yesterday morning. According to reports Timothy Wells slashed a Salem State College student on a shuttle bus and then stabbed the bus driver who came to the female victim’s defense. Wells fled the scene and was apprehended in New York earlier today. Wells, a senior at Salem State was found in possession of a knife a few weeks ago however no charges were filed. Wells, a senior at Salem State has been charged with Assault and Battery by Means of a Dangerous Weapon and Attempted Murder. It has been reported that Wells informed campus police about his concerns about his state of mind.
The facts of this case clearly suggest that Wells’ lawyer investigate the viability of a mental health defense. The most commonly used mental health defense in Massachusetts is the defense of lack of criminal responsibility. Lay people often refer to this defense as the insanity defense. If a jury finds that some lacked criminal responsibility at the time of the commission of the crime it cannot convict the person of that crime. It is the burden of the government to show beyond a reasonable doubt that the person was sane when he committed the offense. To succeed with this defense there must be evidence that the defendant had a mental condition that rendered him unable to conform his conduct to the requirements of the law. It is advisable that anyone employing this defense have an expert evaluate him and be prepared to testify at trial to the condition of the accused and its effect on his or her ability to behave properly.
The defendant is also entitled to have the jury instructed that an acquittal by reasons of insanity does not automatically permit the person to go free. Rather, the jury can, upon request be instructed that its decision to find the defendant not guilty will likely require hospitalization in a secure mental health facility and that he will not be released unless and until a judge finds that he is no longer mentally ill and dangerous. Voluntary intoxication and drug abuse can be factored into this analysis in certain circumstances.
Here, Wells’ condition was known to campus police prior to the incident. It would not surprise me to learn that he had a document mental health condition or that he was prescribed medication for his problems. In that case, the defense is what I call a real one; i.e. not something concocted in the absence of an explanation for Wells’ behavior. Mental health defenses rarely convince juries. They do however often convince prosecutors and judges that the accused should be acquitted and treated for his problems.