Massachusetts criminal defense Attorney Blog
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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.

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A couple of days ago the Massachusetts Appeals Court issued its decision in Commonwealth v DeGennaro, a case involving theft, real estate fraud and embezzlement. As a factual backdrop the Court found the following:

In one instance, over a six week period the defendants received over forty eight thousand dollars in two installments from the victim. This money constituted the deposit for the construction of a new home. The defendants represented to the victims that the money would be kept in an interest bearing escrow account. Instead, the defendants deposited the money into their commercial checking accounts. They wrote checks from the account and depleted the money. None of the expenditures pertained to the victim’s home construction. The construction never took place. The money was never returned. No home was built.

In another transaction the victim tendered checks in an amount more than fifty-five thousand dollars. Again, the victim understood that the defendants would use the money as a down payment for the construction of a house. In less than two months that account too was depleted. As with the first case, construction delays were negotiated and yet again no construction took place. The deposits were never returned to the victim.

In another matter, DeGennaro hired a subcontractor to install plumbing and heating for homes that he had built. The first check tendered to this victim by the defendants bounced. A subsequent check cleared. The victim continued to perform services but was never paid. This pattern repeated itself relative to another property where this victim was providing the same services for the defendants.

It is no surprise to me that the defendants in these cases were convicted. What does surprise me is that these cases were prosecuted criminally in the first place. These cases almost never get presented to law enforcement. The reason for that is simple. If the victim is correct and he was actually defrauded by the contractor the sum of money taken from him will motivate the district attorney to look for jail time after a conviction. There are not many defenses to cases with these fact patterns. Money was moved from one shell LLC to another. The funds were depleted not for construction purposes but for the enrichment of the defendants. No work was performed. This was nothing more than a scam that was repeated several times with several customers. Yet victims in these cases who consult lawyers will realize very quickly that if they go to law enforcement with their complaints a prosecution will ensue, there will likely be a felony conviction involving jail time and restitution will never be made. The victim will never get back his deposit. So what happens? Usually the builder will continue with his scheme, paying off one victim with funds stolen from another. If he gets lucky, in a good real estate market he might get a windfall with a construction project or housing development and be able to pay everybody back. Rarely do the builders come to the end of their rope as happened with DeGennaro. In his decision, Justice Sikora put it best when he wrote “This appeal requires interpretation of a seldom litigated criminal statute”. It is seldom litigated because the victims know that they will never get paid if the defendant gets prosecuted.

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Braintree, Massachusetts firefighters responded to an alarm at an apartment complex two days ago sometime around 2:30 in the afternoon. After finding and eliminating the material that triggered the alarm they entered an adjacent apartment to make sure that the occupants were okay. While going through the home the firemen noticed a large quantity of marijuana in a bedroom closet. They observed very little furniture in the apartment and notified the police. Officers responded to the home and applied for a search warrant. Once inside the home they found one hundred sixteen pounds of packaged marijuana and some drug distribution paraphernalia. The property was secured. Just prior to the search Mary Mei Chan and Dang Huynh arrived at the home. Both were detained and ultimately arrested. They, along with the lessee of the apartment have been charged with trafficking marijuana and conspiracy to violate the Massachusetts drug laws. The case is pending in the Quincy District Court but will likely be prosecuted in the Norfolk County Superior Court in Dedham.

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Quincy, Massachusetts Criminal Defense Law Firm

Cases like this one present an interesting challenge for criminal defense lawyers. Three people have been charged with trafficking, none of whom were present when the firefighters responded to the alarm. The two people who did show up at the home were not identified as tenants of the apartment. How then is the prosecutor going to prove that either of these individuals intended to traffic this marijuana? I am not sure they can. Drug trafficking in Massachusetts requires the prosecution to proved beyond a reasonable doubt that the person 1) possessed the controlled substance, 2) that he did so with the intent to distribute that drug and 3) that the quantity exceeds the trafficking threshold, in this case fifty pounds. The only element that can easily be proven is the third element, the quantity of the substance. But establishing the elements of possession and intent to distribute for Chan and Huynh is not going to be easy. If both of them were smart enough to keep quiet and not talk to the police then proving the case against them will be difficult.

The same problem might apply to the lessee of the home. How can the district attorney prove that she had any involvement in drug trafficking activities. How long had she been the tenant? Did she actually live there at one time? Was she seen going in and out of the apartment building? Did she sublease this to someone else? Does she have a history of dealing controlled substances, particularly marijuana? I can certainly see where motions to dismiss might be viable in this case. Again, much of this depends on what if anything the defendants said to the police. Hopefully, for their sakes they said nothing.

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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.

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Sometime around three o’clock in the morning on Route 495 a Massachusetts State Trooper reportedly observed a car committing several motor vehicle violations, one of which was operating in the breakdown lane. The officer stopped the car. Then, according to a report in Boston.com, the officer developed information that resulted in him searching the vehicle. One of the passengers, Lesley Isler was found in possession of the cocaine and Percocet pills. Isler was arrested and arraigned in the Marlborough District Court on charges of trafficking cocaine and Percocet. The operator was simply given a citation for a civil motor vehicle infraction. Another passenger, Thomas Hamilton was cited for possession of less than one ounce of marijuana. In accordance with recent Massachusetts law this is not a crime.

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Marlborough, Massachusetts Drug Trafficking Defense Law Firm

I am always troubled when I read police reports or media accounts of routine stops that result in the arrest of passengers in motor vehicles. Massachusetts law does not permit the police to order a passenger from a vehicle following a routine traffic stop. The exception is where the officer has a “reasonable apprehension of danger”. The test used by courts hearing challenges to these exit orders is an objective one. Courts look at the facts and circumstances to see if they objectively give the police a “heightened awareness of danger”. In several instances Massachusetts courts have ruled that there is no basis to interrogate a passenger after the driver has produced a valid license and registration. Protections in Massachusetts in this area are greater than those provided by the Fourth Amendment, thus making your choice of a Massachusetts criminal lawyer a very significant decision. Any time I get a client that was subject to an exit order I immediately think that a motion to suppress should be considered. A successful challenge to a search results in suppression and suppression usually means dismissal.

Aside from the legal issues that may benefit Isler I can see some factual “observations” that make no sense. Do you really believe that the driver was operating in the breakdown lane and committing a variety of motor vehicle infractions? No way. Maybe if he were impaired. But that is not even remotely suggested here. I imagine the trooper had a hunch based on the time of day, the number of occupants in the car, the race of the people in the vehicle or maybe some information from other police officers that was not disclosed. Or, perhaps an informant had a role in this but the officers are protecting that person and not being honest in how they are reporting this matter. This is something that the defendant’s lawyer will investigate.

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A Methuen, Massachusetts man has been charged with two firearm offenses in the Lawrence District Court following a brief investigation. According to a report in the Lawrence Eagle Tribune, Jad Ali Mokdad has been charged with having an unsecured firearm and possession of a high capacity feeding device. Both cases are pending in the Lawrence District Court. Apparently Mokdad bought a high capacity gun not too long ago. Mokdad’s father called the store that sold the defendant the gun and asked about getting a silencer and about modifying the weapon to feed it more ammunition. The gun store owner called federal authorities to report the activity. As a result Mokdad was arrested.

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Lawrence Weapons Charges Defense Law Firm

The use or possession of silencers in Massachusetts is a felony pursuant to Massachusetts General Laws Chapter 269 Section 10A. There is a potential five-year state prison sentence for anyone convicted of this crime. Possession of a large capacity feeding device is a felony as well. This act is prohibited by G.L. c. 269 Sec. 10(m). Perhaps, at least in the context of this case, the most serious crime with which Mokdad has been charged is failing to properly store the firearm in a locked container “so as to render the weapon inoperable by any person other than the owner”. In cases where this law is violated and a person under the age of eighteen can access the gun the accused faces a one-year minimum sentence. This law, G.L. c. 140 Sec. 131L is routinely charged by Massachusetts prosecutors when law enforcement officials legally enter a home and see, either in plain view or pursuant to a search warrant, a firearm not properly locked.

So what is going to happen to Mokdad? A lot depends on how the police got into his home and located the weapons. I would assume they had a search warrant. However the grounds for obtaining one are not articulated in this article. Mokdad’s father’s request to the gun store about getting the sought after devices should not in and of itself permit the police to get a search warrant. There must be more than that, particularly if the warrant targeted Mokdad and not his father. I can certainly foresee circumstances where a motion to suppress or a motion to dismiss might be filed by the defense in this case.

There is something else that might concern the defendant’s criminal lawyer. Assuming there was a search conducted with a warrant, did Mokdad’s Middle Eastern descent factor into the application affidavit. If so, on what basis was this a concern of the police? Keep in mind, Mokdad is scheduled to graduate from college with a degree in finance in just three months. There is no suggestion that he has any criminal history and there is no evidence of an intent to commit a crime with these weapons.

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While reading a Courthouse News Report earlier today I was again struck by the inflexible approach that federal judges take towards child pornography distribution cases. A federal judge in New York sentenced a teenager to thirty months in prison after he pleaded guilty to distributing child pornography. No doubt this was an excellent deal. There was a large quantity of images on the defendant’s computer accessed through a file-sharing program. This fact alone satisfied the element of distribution. Yet this judge, Judge Jack Weinstein correctly recognized that this form of distribution is at best passive. The government appealed the sentence. The Second Circuit of Appeals criticized the judge’s sentence, ruled that he misinterpreted the law and remanded the case for further sentencing. The district court then, without any choice, imposed a sixty-month sentence, the minimum mandatory under the law.

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Federal Child Pornography Defense Attorney

What I find most appalling about the appellate court decision is its failure to respect the detailed, well-researched efforts of the lower court judge. Consistent with his practice Weinstein visited a federal prison at Fort Devens, Massachusetts that was established to treat sex offenders. He believed that treatment at Devens for this defendant would be rehabilitative and would enable the accused to perhaps reenter society at a later date in a productive manner. Weinstein has made frequent field trips like this in the past so that he can better understand the implication of his rulings and sentences. Imagine that? A federal judge who cares enough to take off his robe and step down from his pulpit to ensure that his decisions are just and productive not simply for the defendant but for society as a whole. Weinstein’s sentencing decision was issued with great thought. The supporting memorandum was over four hundred pages in length. It contemplated several days of expert mental health testimony. It considered the defendant’s childhood, one that is riddled with scarring incidents of abuse and neglect. The sentence placed form over substance, treatment over punishment.

So what happened? The Court of Appeals decided that notwithstanding Justice Weinstein’s findings it knew better. It told Weinstein that he must apply the enhancements set out in the sentencing guidelines. Let’s take a look at just one of these enhancements. Using a computer to access child pornography enhances the sentence. What? How else would this be accessed nowadays?

This enhancement is best characterized as idiocy. It is 2013 folks. The Internet is used for everything. It is virtually the only way people are accessing child porn. So Justice Weinstein used common sense and justly decided not to enhance the sentence using that criteria. Unfortunately he must have forgotten that in federal court the culture is one of hostility. Prosecutors and judges alike want to “one-up” each other by showing how smart they through sentencing hearings they shout out “look, I found another way to increase the sentence”.

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In Commonwealth v Ortiz, decided earlier today the Massachusetts Supreme Judicial Court affirmed a conviction for drug distribution notwithstanding the failure of the prosecution to prove beyond a reasonable doubt that the substance charged was in fact cocaine. The facts of the case are as follows: In June of 2010 a Weymouth, Massachusetts police officer was conducting an undercover surveillance during which she observed what she believed to be a drug deal. One week later she saw the same car and same driver allegedly engage in identical activity. This time the officer approached the buyer and found her in possession of cocaine. A support team was notified and the car, being driven by Ortiz was pulled over. Ortiz was arrested and charged with distributing cocaine and a school zone violation. After a jury trial he was convicted.

The prosecutor and the defense lawyer agreed prior to trial to stipulate that the substance was cocaine. During the trial the substance was referred to as cocaine however at no time was a certificate of analysis produced nor was the stipulation offered by the assistant district attorney, the defense attorney or the judge. The judge did reference the stipulation during his jury charge. On appeal Ortiz argued that since the stipulation was not offered before the prosecutor rested his case the judge should have allowed the motion for a required finding of not guilty. The defendant further argued that a stipulation to an element of the offense should be in writing and signed by the defendant. Alternatively, the stipulation must be the subject of a colloquy. In rejecting the appeal and affirming the conviction the Supreme Judicial Court refused to answer the question as to whether the failure to enter the stipulation constituted error. Rather, the Court held that reaching that issue was not necessary since there was no substantial risk of a miscarriage of justice. Similarly, the challenge to the absence of a signed stipulation and the absence of a colloquy did not warrant a reversal of the conviction. However, this case has prospective application regarding stipulations to an element of the case. Going forward, such stipulation should be submitted to the jury prior to the government resting its case.

From my perspective this decision seems to relieve the district attorney of its
burden of proving all elements of the crime beyond a reasonable doubt. Even though there was an agreement that the substance was cocaine the agreement
itself was never conveyed to the jury. Thus, legally there was no adequate proof that the substance was in fact what was charged. It was incumbent upon the prosecutor or the judge to make this known to the jury prior to the final submission of all evidence.

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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.

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Salem, Massachusetts Criminal Defense Law Firm

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.

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Earlier today I was reading the Lawrence Eagle Tribune and came across an article about a Methuen, Massachusetts man just convicted of one count of Rape. The man, Kenneth Poirier was being tried for a rape that occurred over three years ago. It was alleged that Poirier picked up a woman outside of a Lawrence rooming house and at gunpoint and took her to a wooded area in Methuen where he raped her. His defense was that believing she was a prostitute he picked her up and that all sexual contact between the two was consensual.

An earlier article about this trial reported that the woman did not appear in court to testify claiming that she had medical issues. However, the police had to go out and find her. When they did she was put up in a hotel, fed and clothed. The woman admitted having no recollection as to whether or not she told the police that she was forced into the car at gunpoint. There was no physical evidence corroborating the woman’s claim that she had been raped.

Essex County Rape Defense Law Firm

Massachusetts Rape Defense Attorney

Consent is a defense to allegations of Rape. It is one of two defenses I would expect to see in a case with facts such as this. The other defense would be a denial of engaging in any sexual act. Both defenses seem to fit the newspaper accounts of the crime. For example, where, as here there is no physical evidence suggesting a sexual assault I can see where the defendant would deny any unlawful contact with this woman. Why then would she make these accusations? There are countless reasons, the most common being a prostitution deal gone bad or a failed drug deal. But you have to ask yourself this. If Poirier didn’t rape her and there was no physical evidence corroborating her accusations, why admit to having sex at all?

Sex crimes can be difficult to defend. There can be a tendency on the part of jurors to sympathize with someone making this claim. Even though judges instruct jurors not to let sympathy interfere with their verdict the actions of the complaining witness can elicit emotion and sway jurors. In this case it is also troubling that as the victim became emotional during the trial the judge ordered a recess for her to compose herself. The recess causes pause and immediate reflection on the words and actions of the emotional witness. Some lawyer might even argue that the judge’s decision to break from trial at that time suggested that the judge was sympathetic towards the witness and perhaps believed her. This can be difficult for the defense to overcome, regardless of guilt or innocence.

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