Massachusetts criminal defense Attorney Blog
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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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According to a report on Boston.com Steven and Lori Palladino along with their son Gregory stole in excess of ten million dollars from forty-two victims some of whom are over the age of sixty. The Ponzi scheme, as it is being called, alleges that the Palladinos raised money through investors by promising large returns on the investment. Rather than investing the money however the defendants used the money to fund an extravagant lifestyle. The money was spent on lavish vacations, cars and gambling debts. A criminal usury charge was also filed alleging that Steven Palladino loaned money and charged a forty percent interest rate on the loan. There is also an allegation that Steven Palladino spent some of the money on a girlfriend. The Palladinos owned Viking Financial Group and were its only employees. Among the charges are Larceny Over $250, a felony and Larceny Over $250 with a victim over the age of sixty. If found guilty of the latter indictment the penalty can be enhanced. The younger Palladino was charged only recently in this case.

Massachusetts Larceny Lawyer

Lawyers Who Defend Usury Indictments in Massachusetts

A few thoughts come to mind when I read this article all of which are to me somewhat revealing about the district attorney’s case. Number one. Why is this case being prosecuted by the Suffolk County District Attorney’s Office rather than by the feds? The answer probably has something to do with the strength of the government’s case. It is the consensus among Massachusetts Criminal Defense Lawyers that in this district the feds cherry pick their cases. They prosecute only the strongest cases, those they believe they have very little chance of losing. Thus, there may be problems of proof for the district attorney. Number two. Why disclose to the public the facts about Steven Palladino having a girlfriend? I imagine the prosecution wants to create division in the family and possibly get Lori Palladino to agree to cooperate with the prosecution. If that is true, then again I question the strength of the prosecution’s case or its belief that it can prevail on the indictments as charged. Number three. Why indict the Palladino’s twenty-eight year old son? My answer is that in all probability the prosecution wants to squeeze the Palladinos. There is no instinct greater that that of a parent protecting a child. Most parents would die to protect their child. Again however, to me this signifies admitted weaknesses in the case against these defendants.

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Christopher White, a forty four year old Lowell, Massachusetts man is facing charges of Possession of Child Pornography and Distribution of Child Pornography following the execution of a Search Warrant at his Jackson Street home. Authorities allege that a search of White’s computer revealed somewhere around twenty five thousand images of child pornography. The article is silent as to how the police were led to White’s home and the basis for the application for the search warrant. The case is currently pending in the Lowell District Court however if the district attorney elects to pursue the distribution charges the matter must be prosecuted in the Middlesex County Superior Court in Woburn or Lowell.

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Lowell, Massachusetts Child Pornography Defense Law Firm

Lawyers Defending Obscene Material Charges in Massachusetts

This article says very little about the strengths and weaknesses of the district attorney’s case against White. The simple execution of a search warrant leading authorities to unlawful acts does not come close to satisfying the prosecution’s burden of sustaining a case like this one. There must be something linking the defendant, in this case White, to the illicit material.

Here is something to think about when looking at this case. Did White have any roommates? Was the computer secure? In other words did someone need a password to get into it or was the device accessible to anyone who had access to the home? How did law enforcement learn that activity like this was taking place? Was there some sort of file sharing such as peer to peer networking involved? The answers to these questions can determine whether or not the prosecution can survive preliminary challenges.

The penalty for Distribution of Child Pornography in Massachusetts is ten years on state prison. This is a minimum mandatory sentence meaning that anyone convicted of this offense will not be paroled until he serves at least ten years of his sentence. This fact alone makes it extremely important that you choose the right criminal defense lawyer to defend you if you are charged with this crime.

Our office has successfully defended charges like this on several occasions. Every case is different and there are always defenses to cases no matter how strong you might think this case is against you. If you get arrested and charged with any Sex Crime in Massachusetts you need a lawyer.

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As I was browsing the Brockton Enterprise today I came across a story about two people arrested on unrelated prostitution charges a few nights ago. The arrests occurred in Brockton, Massachusetts. Around 10:00 p.m. Charie Shaw was arrested and charged with Sex For a Fee. About an hour later Kenneth Ritter was arrested and charged with Sexual Conduct for a Fee and Possession With Intent to Distribute a Class B substance. No more information was offered relative to the details of the alleged crimes.

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Brockton, Massachusetts Prostitution Defense Lawyer

I have been representing people accused of Soliciting a Prostitute and for Prostitution for over twenty-six years. In the past several years I have noticed a troubling trend among law enforcement agencies wherein undercover officers, posing as prostitutes approach men, engage them in discussions about their services and make an arrest. On countless occasions the accused comes into my office and makes clear that he was approached by the undercover cop and had no interest in engaging their proposed services. In most of the instances, once the officer has any discussion with her target a surveillance team swarms in and either makes an arrest or tells the individual that a summons will be sent to his home. Many times the interaction is far from a “discussion”. Rather, once the officer initiates the conversation an arrest is made. Many of these accused had absolutely no interest in the services of a prostitute nor did they have any interest in even continuing the discussion that the undercover initiated.

Not long ago I represented a lawyer charged with Solicitation of a prostitute. He was with colleagues, leaving a restaurant after a late night dinner. The undercover officer approached this man and his friends and offered sexual services. All of them declined. As they were walking away the officer looked at my client and reduced her price. He jokingly said “how about one million dollars?”. He was arrested. Fortunately his friends were able to corroborate his story and the charges were dismissed. But what about those occasions where someone does not have a witness? Hopefully the accused will hire someone experienced at resolving these cases in a manner in which there will be no trace of a criminal record.

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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.

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Lawrence, Massachusetts Assault and Battery Defense Lawyer

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.

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An Andover, Massachusetts police officer now has a November 22nd date for a Clerk’s Hearing in the Lowell District Court. The charges being considered at the hearing are Leaving the Scene of an Accident Causing Property Damage and Operating Under the Influence of Liquor, commonly referred to in Massachusetts as OUI.

It is alleged that on March 11th of this year Officer Evan Robitaille of the Andover Police Department got into an accident around 9:30 in the morning and then fled the scene. A Clerk’s Hearing was scheduled for last Friday but with the agreement of Robitaille’s lawyer and the district attorney the case was continued.

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Lowell, Massachusetts Clerk Magistrate Hearing Lawyer

In Massachusetts, people charged with misdemeanors not committed in the presence of police officers have the right to a Clerk’s Hearing. This is a civil proceeding conducted in front of a Clerk Magistrate. The moving party will introduce evidence at the hearing. The Massachusetts Rules of Evidence do not apply to these proceedings, so essentially, the moving party gets to tell his or her story. The accused has the right to present evidence in his or her behalf but is under no obligation to do so. The clerk magistrate then weighs the evidence and makes the determination as to whether 1) there exists probable cause to issue a criminal complaint and 2) whether there exists probable cause to determine whether the accused is the person who committed that crime. If the answer to both is “yes” then a complaint often issues.

The Clerk Magistrate does however have the power not to issue the complaint. He can continue the matter and advise the accused that if he remains out of trouble for a period of time no complaint will issue. The Clerk Magistrate can also work with the parities towards a resolution of the issues without the need for judicial intervention. In essence he acts as a “gatekeeper” to the court, weeding out the cases that can be resolved without the issuance of a criminal complaint.

It is advisable for anyone who has one of these hearings to engage a Massachusetts Criminal Lawyer. Good lawyers can prevent complaints from issuing and the cost of a lawyer at a Clerk’s Hearing is often less than that at a criminal proceeding.

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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.

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I was browsing the web earlier today and saw a CBS News article about the “thrill kill” that happened last week. The article mentioned that one of the accused tweeted about killing someone, three days before he supposedly committed this crime. He tweeted under a handle @Jamesakabug. This particular defendant also tweeted about being a thug and about Firearms. Even though the tweets were not addressed towards any individual victim you can be sure the district attorney will fight to have them admitted as evidence. In Massachusetts there is no doubt in my mind that most judges would permit the prosecution to introduce this as evidence. Massachusetts Appellate Courts have ruled that in cases involving Firearms, a person’s statement about guns, can in many contexts be admissible to show that this person had familiarity with Firearms. While the statement will likely be admitted with a limiting instruction the damage is still done.

This is not an isolated case in which a criminal defendant published something on social media. On August 9th of this year the Bradenton Herald published an article about a Miami man who posted details about killing his wife on Facebook. Just two days ago police in Long Island were able to charge a man for Statutory Rape after seizing Facebook posts between the twenty five year old man and his thirteen year old girlfriend. Some Ohio high school football players got themselves in some hot water after posting a video and pictures of a girl who, while passed out had been the victim of a Sexual Assault and possibly a Rape on Twitter, Instagram and Facebook. A man from Hawaii had a drinking and driving posted showing him having a beer while driving and talking to a camera for five minutes.

As a Massachusetts Criminal Lawyer I see more and more evidence being used against my clients that stemmed from their ill-advised posts. There is however much more to this rising trend. I have some clients who have been framed by social media posts. How does this happen? Well in this case the damaging posts were created with my client’s cell phone. Most people now carry smart phones, especially young people. They all have Facebook, Instagram, Twitter and Google+ apps. They leave these apps in a “signed in” mode. Anyone who accesses one of these phones can go right to the app and post as if it were the person who owned the social media page making the comment. In several of these cases witnesses were located and provided the defense with evidence of sabotaging the social media pages. Here is how else social media confessions can help the defense. There are people other than the accused who take credit for the commission of the crime. Their admission is admissible evidence at trial and if there exists some corroboration of the statement a jury might believe that confession credible evidence favoring the defense. Also, witnesses sometimes boast about their value to one side or another through social media outlets. The bottom line is this; social media now plays a significant role in Massachusetts Criminal Defense strategy, a role that should be embraced by the defense.

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Any Criminal Lawyer in Massachusetts will tell you that you don’t want your case to be prosecuted in the Federal Court. There is a litany of reasons why. Federal prosecutors have a limited ability to negotiate pleas. They have numerous channels they must go through to get approval to “amicably” resolve cases. In some cases they need authority from Washington, D.C. The laws in many state are often more pro-defendant in state courts than they are in the federal courts. In Massachusetts for example Article 14 of the Massachusetts Declaration of Rights provides greater protections than its counterpart, the Fourth Amendment to the United States Constitution. Article 12 is viewed more favorably by the defense than the Fifth Amendment. More time is permitted in state court for trial preparation than in federal court. And, for the most part, sentencing schemes in the federal court system are much more rigid and severe than in state courts. Judges in federal courts lack the discretion vested in state court judges to impose sentences that they deem fair and the result is often a huge sentence drastically disproportionate to the crime charged. Here is a look at that sentiment in the context of a Federal Child Pornography Distribution Case.

Lets assume that the client, John Doe is caught in Possession of Child Pornography using peer to peer file sharing. Lets further assume that John has no criminal record. John will be charged with Distribution of Child Pornography. In federal court that charge carries a minimum mandatory five-year sentence. Now in Massachusetts the same crime carries a ten-year minimum mandatory sentence but the prosecutors have discretion to reduce that to a possession charge, which they often do. I have never seen a district attorney ask for the ten-year sentence for a first time offender with no criminal record. Rarely will state prosecutors even ask for a five-year sentence on the possession whereas the federal prosecutors will not go below the five-year minimum mandatory. So, difference number one is the ability to negotiate a better result for your client and to get below the dreaded minimum mandatory required by federal law. Difference number two involves the federal sentencing guidelines. Still using John Doe and these facts as our example, lets look at factors that will likely result in John getting much more than five years if prosecuted in federal court. John’s base offense level is a 22. Assuming a criminal history category I he is looking at a guideline range of 41-51 months. But this is just the beginning. If the minor(s) in the images are under the age of twelve or prepubescent than two levels are added giving a guideline range of 51-63 months. If a computer was used to view the material then add two more levels making the sentence 63-78 months. If there were at least ten images add another two levels making the sentence 78-97 months. This is just the beginning. If sadistic conduct is involved, add four more levels. If there are six hundred or more images add another three levels to these calculations. Keep in mind, most of these images are accessed in large volumes. Six hundred plus images is more the norm than the exception. So now what are we up to? A level 35 which requires a sentence of 168-210 months, or fourteen years to seventeen and one half years. So while John Doe actually may not actually get the 168-210 month sentence you can be sure that the prosecutor will be pushing a sentence much greater than that which a state district attorney would be looking for. This is why it is critical that when hiring a lawyer you make sure that your lawyer has experience in the system where the case is being prosecuted. There are things that can be done to convince judges to impose a just sentence.

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