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.
According to a report in the Lawrence Eagle Tribune charges of Disorderly Person, Trespassing and Assault and Battery have been filed against a Westford, Massachusetts man. The defendant, Adonis Carrasco was reportedly in a Merrimack College dorm room without an invitation. Sometime after midnight Carrasco allegedly put his arm around one of the women and sat in another woman’s lap. Carrasco also supposedly touched one of the girls’ legs and made some unwanted sexual suggestions towards her. One of the girls told the defendant that she had a knife. He responded that he sometimes carried a knife as well. Other students intervened on behalf of the women and called the police. Carrasco was arrested and now faces Criminal Charges in the Lawrence District Court.
As a criminal defense lawyer I am always cynical when I read articles discussing arrests and pending criminal cases. I recognize that the truth is rarely what is initially read in court or disclosed in the newspapers. It is fairly uncommon for the accused to disclose their defenses at arraignment and this case is no exception to that rule.
So what do I ask when I read an article like this one? Well from one, how did Carrasco get into the dorm? From there how did he get into a room with these women? How long was he there for? Who else “witnessed” what was going on there? Did he go to the college alone or with friends? Once these questions and more like them are answered I get a pretty good sense of what happened. From there I know how to defend the case and often times, particularly in cases like this one if the defendant does not have a criminal record he will continue not to have one if he is properly represented.
Here is something else to think about. All dorms now have secure access meaning that in order to get in you need a code, key or someone to let you in. All dorms also now have video surveillance and security systems so determining how Carrasco got into the dorm can easily be determined. His lawyer simply has to get the judge to order the district attorney to have the footage preserved and produced or get a court order compelling the college to produce the material. I imagine that much will be learned from viewing this recording.
Over the past twenty-six years I have represented thousands of people who have been charged with crimes ranging from misdemeanor Motor Vehicle Crimes, like OUI to major felonies such Murder, Rape and Distribution of Child Pornography. The source of my clients has varied. Family and friends have sent me business. Years ago, just like all other professionals I was listed in the phone book and just by luck someone would call me. For a short period of time I had paid listings in local yellow page books. When I was younger I was on various lists for state agencies that would appoint lawyers paid by the state, counties or the federal government. Lawyers in Massachusetts, particularly those who do not practice criminal defense law might refer a case to me. Lawyers from out of state with whom I had cases either in Massachusetts or their jurisdiction often sent me business. Finally, in 2003 I started marketing through the Internet. Yet no matter what the source of this business potential clients had an abundance of questions and many of these questions were asked by a majority of prospective clients. These people had certain expectations of their lawyers, some realistic, others not so realistic. I realized that the decision to hire me would at least in part stem from my responses to these questions. Rather than hustle the business I simply answered the questions as honestly as I could and let the person then make his or her decision of who to hire. Reflecting on this I think it is valuable to share a few of these questions and what I believe are proper responses so that anyone reading this post can make a more informed decision about what to look for when seeking a Massachusetts Criminal Defense Lawyer.
1. If I pay you more money will I be more likely to get a better result?
The answer is absolutely not. Criminal Defense Attorneys in Massachusetts have different fee schedules. Most charge some sort of flat fee that varies depending on the lawyer and the crime. No matter what you are charged you should expect your lawyer to give your case his best effort and maximum attention. Steer clear of any lawyer telling you that paying more will get you a better result.
The proper response is that “my fee is my fee and no matter what I get paid I will give your case my best effort”.
2. Can you guarantee me that you can win my case?
Never. No lawyer can predict what a jury or a judge is going to do in a particular case. Experienced lawyers can tell you what usually happens in certain cases but they cannot predict or guarantee a result. Stay away from any lawyer who guarantees a win.
A proper answer to this question is that no one can make guarantees in this business but in situations similar to yours here is what typically happens.
3. Does knowing the district attorney or judge help?
There is no doubt that relationships in life can have value in certain instances. Any yes, some lawyers can get a better result in front of some judges than others or with some assistant district attorneys than others. But you shouldn’t be deceived by this. The judges in Massachusetts are often rotated from court to court or from session to session within a particular court. The same is true for assistant district attorneys. There is no guarantee that that judge or district attorney will be at all involved in your case. Moreover, ethically, the trend has been for judges to recuse themselves from cases where they feel too attached or “friendly” with one of the lawyers. Assistant district attorneys often need to adhere to certain office policies that prohibit them from treating friends with more favor. Moreover, any lawyer who tells you that he is “friends with the judge” or “friends with the district attorney” should not be trusted. Think about it. What kind of person would risk jeopardizing a relationship for a client? Obviously this is not someone who you can trust.
It is not improper for the lawyer to let you know his or her experience in certain courts or to give you opinions about the judge’s proclivities relative to cases like yours. The same applies for the assistant district attorney.
Massachusetts lawmakers are close on a bill that, if passed as law will treat seventeen year olds as juveniles. The proposal has passed in the Massachusetts House and Senate and now awaits reconciliation through a conference committee. The governor has drafted a similar law and there is optimism that the bill will be on his desk for approval by the end of the month. As of now, seventeen year olds in Massachusetts are treated as adults when it comes to being charged with committing crimes. It doesn’t matter how severe the offense is nor are the circumstances of the crime considered prior to bringing criminal charges. The current law is simply terrible. Massachusetts is one of only eleven states in the country currently treating seventeen year olds as adults. The federal government treats seventeen year olds as juveniles.
The proposed Massachusetts law would not override the youthful offender law. That statute, Massachusetts General Laws Chapter 119 Section 52 et seq. provides for special treatment for people being prosecuted between the ages of fourteen and seventeen…in certain circumstances. Typically the youthful offender law pertains to crimes committed involving serious bodily harm. Thus, the proposed legislation would have no effect on Massachusetts Violent Crimes or Massachusetts Sex Crimes committed by seventeen year olds.
So as a Massachusetts Criminal Lawyer here is what I see as being wrong with the current law. Seventeen year olds are still kids. They are primarily in high school. They make mistakes. They experiment with alcohol and drugs. They may drink and drive. They will express their curiosity through activities deemed criminal. In addition to being prosecuted by the courts schools have a way of punishing kids for committing these crimes now. They get suspended. They get kicked out of extra-curricular activities or off of their sports teams. Even worse, they get their names and sometimes pictures in the local papers for doing something wrong.
Here is something else. There are over 2900 seventeen year olds prosecuted each year in Massachusetts. These kids might end up criminal records as a result of a single criminal incident. They will have difficulty getting into some colleges. Their applications will be flagged. They will have trouble getting certain jobs. Countless times each year parents of seventeen year olds that I represent express concerns about how certain methods of resolving the case will be viewed by schools or employers. The answer to those questions is not easy. Massachusetts CORI laws permit perspective employers access to criminal histories depending on the nature of the business. For instance, people working with children or in health care are more vulnerable to perspective employer CORI access. And how many seventeen year olds know what they “want to do when they grow up”?
I have more thoughts on the current law. Juvenile detention facilities treat inmates much different from adult facilities. Adult facilities punish and isolate. They do not rehabilitate. They aren’t funded for rehabilitation right now…at least not enough. Juvenile correctional centers educate. They provide counseling services. They offer mental health treatment. They emphasize getting back into society in a productive manner.
There are thousands of articles written each day about the Trayvon Martin case. Most of these pertain to Florida’s self-defense law. The general consensus among criminal defense lawyers is that the evidence supported a self-defense instruction and that the jury’s application of the law was fair. At least this is how I read these articles and blog posts. While many people are criticizing the Florida “stand your ground” law I saw a post from a Rhode Island criminal lawyer suggesting that in that state Mr. Zimmerman likely would have been acquitted. I will not opine on what would have happened in Massachusetts had the case been tried here. However I thought this would be a good opportunity to discuss the Massachusetts self-defense law from the perspective of a Massachusetts Criminal Defense Lawyer.
Self-defense is permitted is Massachusetts. The defendant does not have to prove that he acted in self-defense. Rather, the district attorney must prove beyond a reasonable doubt that the accused did not act in self-defense. The application of this law depends on whether the defendant used deadly force or non-deadly force. Since we are discussing the law in the context of the Trayvon Martin case let’s look at the use of deadly force. For that defense to work the accused must “reasonable and actually believe” that he was in imminent danger of death or great bodily harm. He must also do everything he can to avoid combat before he uses such force. Finally, one can only use as much force as is necessary under the circumstances.
So here is what I think the jury may have focused on had this case been tried in Massachusetts. 1) Were Trayvon Martin’s actions enough to permit a person in George Zimmerman’s position to reasonably believe that Zimmerman was in immediate danger of death or great bodily harm? 2) Was George Zimmerman able to escape safely without using deadly force? Could he have walked away? Could he have held Trayvon Martin at bay? Could he have called for help without exposing himself to further danger? 3) Did George Zimmerman use more force than was necessary under the circumstances? Factors to consider here are the size differences between the parties, the location of the event, the presence of weapons and who had what weapon.
Here are some other factors that may come into play in Massachusetts self-defense cases. The victim’s prior acts or crimes of violence may be admissible if there exists a dispute as to who was the first aggressor. There is no need for the defendant to know about the victim’s reputation for violence to avail oneself of this defense. That knowledge, if present however can be used as evidence at trial.
Even though Massachusetts does not characterize its self-defense law as a “stand your ground” law its application in the circumstances of particular cases might not differ much or even at all. From what I know about the Trayvon Martin case George Zimmerman would have secured a self-defense instruction in Massachusetts. The jury’s decision would have been driven by facts identical to those adduced in Florida at the very least. There is no reason to believe that the verdict here would have been different from the verdict in Florida. That being said, each jury is unique. It is impossible to predict a verdict. As I tell my clients, anything can happen at trial.