Massachusetts criminal defense Attorney Blog
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In late November of this year the Massachusetts Supreme Judicial Court decided the case of Commonwealth v. Humberto H. The issue on appeal was 1) whether there existed sufficient evidence to sustain the complaint and 2) whether the judge had to arraign the defendant prior to dismissing the complaint.

Here is a brief history of the proceedings. The defendant was charged with possession with the intent to distribute marijuana. Prior to arraignment he moved to dismiss the complaint on the grounds that there was an absence of probable cause sufficient to sustain the charges. The judge agreed with the defense that the case should be dismissed. However, he believed that the defendant needed to be arraigned for him to do so. The defendant was thus arraigned after which the case was dismissed. The government appealed the judge’s ruling.

The court found as facts the following:

In January of 2011 the defendant entered his high school late. Upon his entry authorities smelled a strong odor of marijuana on him. The defendant was then confronted and subsequently searched. Found in his possession were five bags of marijuana that the police believed he possessed for the purpose of distribution. The initial arraignment was continued in order to give the defense the opportunity to file a motion to dismiss prior to arraignment. The motion was filed and allowed but only after the accused was arraigned.

In its opinion the court found dismissal of the complaint proper. The mere presence of five bags of marijuana without more fails to support probable cause to believe that the defendant possessed the intent to distribute. The weight of the drug was minimal. Its street value was nominal at best. There were no drug distribution paraphernalia in the possession of the accused and he made no admissions supporting the issuance of the complaint. This aspect of the Humberto H. opinion was not novel. Rather, it was corroborative of established case law requiring the prosecution to show more than the presence of multiple packages of drugs to support a complaint alleging the intent to distribute.

The next issue decided by the Court made new law in Massachusetts. Now, at least in the juvenile courts judges can dismiss cases prior to arraignment. The rationale for the decision is interesting. The Court voiced concern that once arraigned the juvenile will have a court record showing involvement with the system. This is a permanent record that can be accessed by certain designated authorities. At subsequent proceedings, particularly bail hearings, prosecutors often argue that the defendant has “multiple entries” on his record regardless of how those matters were disposed. In conferring this new right to juvenile defendants the Court further held that this issue has been addressed in other cases without having been definitively decided and the time is now ripe for settling this issue. Finally, this issue was believed to be one of public importance that required a resolution.

Here is what remains unresolved. Is this opinion going to be made applicable to adult cases? I believe it will. Right now, some judges will dismiss complaints in the adult court on motions prior to arraignment. Others will not. I imagine we will now see a trend where these motions are allowed prior to arraignment. I also expect this matter to be litigated in the appellate courts shortly as well.

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Late last week Julie Manganis of the Salem News reported that Joseph Ferrante, a retired Peabody, Massachusetts police officer has been charged with Possession of Child Pornography and Distribution of Child Pornography. Both charges are felonies in Massachusetts.

In September of the year a Massachusetts State Trooper got onto a file-sharing website and obtained information that a Comcast customer was viewing child pornography. The officer subpoenaed the Comcast information and learned that the IP address was registered to Ferrante. With that a search warrant was secured and served on Ferrante’s home last Monday. Ferrante was questioned during the execution of the warrant and admitted that he had viewed the illicit material but denied storing it on his computer. A preliminary search revealed the existence of evidence of the crime on the computer. A more thorough search of the computer will be conducted over the next several months.

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Salem, Massachusetts Child Pornography Defense Law Firm

Essex County Sex Crimes Lawyer

Being a criminal defense lawyer I have concerns about the representations that Ferrante actually admitted to having committed these very serious crimes. As a former cop he has to know that anything he says will be used to prosecute him. He also has to know that proving these cases is extremely difficult, unless of course the suspect confesses to the crime. Computers in private residences are rarely secured. Family members, guests, friends, etc. regularly go onto a household computer. Thus, proving that the subscriber is the guilty party is difficult. A successful prosecution becomes even more difficult if the IP address is not secured. Anyone within the range of the wireless mechanism can access the Internet if it is not secured. This makes it appear that the subscriber is using the Internet when in fact it is somebody else. This happens more than you may think, particularly in restraining order violation cases where the defendant is being set up by the “victim”. Assuming Ferrante knew any of this you have to wonder why he would admit guilt to the police. Or did he?

I have defended many Child Pornography cases in Massachusetts and on only one occasion did the prosecution attempt to proceed without a confession. In all of these cases the link to the defendant that made the case provable was the defendant’s confession. Again, this shows that nothing good can come from talking to the police. You have a constitutional right to remain silent. It was given to you for a reason. Use it. If you have any doubt call a criminal lawyer. I can assure that the advice will be the same. Keep your mouth shut.

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Just yesterday Taunton, Massachusetts police were investigating “a potential parole violator” on Crossman Street. Around 5:30 p.m. they went to a home at that address due to their belief that Jason DaGraca was in violation of his parole. When the police arrived they searched a car in the driveway. In it they found a quantity of marijuana consistent with drug possession, possibly enough to satisfy the elements of possession with the intent to distribute. The officers then entered the home where they found some paraphernalia consistent with drug usage. The officers continued their search of the home. They observed some ceiling tiles that suggested to them that something might have been secreted in the ceiling. They continued their search and found enough heroin and cocaine to bring charges of trafficking class A and trafficking class B. DaGraca has been charged with Trafficking Cocaine, Trafficking Heroin, Possession With the Intent to Distribute Marijuana and more. His girlfriend who was also present was charged with the same crimes. Police also found a hypodermic needle, cash and a digital scale during their search. Reis’ parents and two children were in the house at this time as well.

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Bristol County Drug Defense Law Firm

Lawyers Who Defend Drug Cases in Taunton, Massachusetts

If this article is accurate and complete then there are countless defenses to these charges that could succeed prior to trial and after trial. Here are some initial thoughts: 1) what were the police doing searching a car in the driveway? 2) did they have a search warrant? 3) who’s car is it that they searched? 4) where in the car were the drugs located? 5) how did they get into the house to search? 6) was there a search warrant or did they have “consent” to enter? 7) what if anything justified the search of the home once they were inside? 8) what did the ceiling tiles look like prior to the officers entering the home? 9) in what part of the home were the suspicious ceiling tiles located? 10) how are the police able to attribute criminal activity to DaGraca and Reis as opposed to anyone else in the home or with access to the home? 11) were any statements made by either of the defendants?

Cases like this one are often replete with facts that warrant a challenge to the permissibility of the evidence at trial or the sufficiency of the evidence as to the individual defendants. I can see where motions to dismiss or motions to suppress might be dispositive here. I can also see where, recognizing flaws in its case the prosecution might look to resolve the matter favorable to either of the defendants or both. This appears to be the kind of case that criminal attorney dream about defending.

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Prosecutors in the Wrentham District Court claim that Moses Acloque dragged a women who worked at a Route 1 motel for three miles underneath his vehicle causing her death. According to a report in the Patch Acloque was at a party in a motel room watching Monday Night Football. The prosecution claims that Acloque had not paid for the room nor was he permitted to be in the room. His defense lawyer stated that he was a visitor in the room. Apparently, motel staff members demanded payment from Acloque. The defense has alleged that Acloque was then assaulted. His injuries warranted hospital treatment. The prosecution contends that Acloque ran over the victim while trying to leave the property without providing payment for the room.

The Patch article further suggests that at least one person, not present at the motel saw the body being dragged by Acloque’s vehicle. That person alerted the state police who in turn located Acloque, his truck and the victim’s body. An arrest was immediately made.

Acloque has been charged with leaving the scene of an accident, motor vehicle homicide and other motor vehicle crimes. A modest bail was set and at least for now the case will be prosecuted in the district court.

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Massachusetts Motor Vehicle Homicide Defense Law Firm

The facts reported in this article leave much to the imagination relative to potential defenses to these charges. Key to the case will likely be what the witness who alerted the state police actually saw. The article suggests that he saw Acloque’s vehicle hit the victim. If that is true then his observations tend to undermine the prosecutor’s representations that the victim was struck by Acloque while blocking his truck in an effort to secure payment for the room. There is also the suggestion that the accused was leaving the motel to escape from an assault. This conduct in some cases provides a viable affirmative defense to criminal accusations.

Here is something else to think about. Acloque’s defense lawyer stated that he had no idea that someone was being dragged by the car. This might very well be true depending on where the body was in relation to the car. For instance, if the somehow the victim or her clothing got stuck on a portion of the rear of the truck while she was running after the vehicle this suggestion becomes plausible. On the other hand, if the truck struck her from the front and she was dragged underneath then Acloque might have some bigger problems. One thing is for sure. Acloque hired an excellent Massachusetts criminal lawyer with years of experience. Getting the judge to set reasonable bail was in and of itself an initial victory for Acloque.

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While reading posts on my Google+ account today I noticed defendants in various parts of the country facing stiff sentences for computer related crimes. Take for instance the case of Jared James Abrahams, a nineteen year old California man and college student who recently pleaded guilty to a computer based extortion scheme. Abrahams was accused of taking over webcams by infecting computers with malware, then capturing the victims disrobing and extorting them for more photos under the threat of publishing the photos. It was also alleged that Abrahams demanded victims get onto Skype and do as he requested, again under the threat of exposing the illicitly accessed images. Abrahams is looking at thirty-three months in federal prison for the commission of these crimes. Victims identified on Abrahams computer equipment, one of whom was a minor, were from all over the world.

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Massachusetts Extortion Defense Law Firm

In another case, known computer hacker Jeremy Hammond could end up with a ten year sentence for hacking into computers and stealing tens of thousands of credit card numbers. The financial losses calculated by the government directly attributable to Hammond’s actions could be reach two and one half million dollars. Hammond’s lawyers claim that his efforts were part of his social activism, not for personal gain and not initiated maliciously. Rather, it was part of a nonviolent protest that should be punished as such. The government is seeking a sentence of ten years for Hammond, significantly more than the twenty months being requested by his legal team.

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Massachusetts Federal Criminal Defense Lawyer

So what does this tell you about the state of computer crimes right now? Well obviously they are being taken very seriously by prosecutors. Both of these unrelated cases are being prosecuted by the federal government. The sentences being requested are staggering regardless of the motive or sensitivities of the defendants. Abrahams suffers from a documented case of autism for which he has been treated for over ten years. Hammond is motivated by social forces and has not profited from his actions. Nevertheless, prosecutors want blood. They want lengthy sentences. This trend is consistent not only in federal courts but in state courts including Massachusetts. The message district attorneys want to send is clear; virtual trespassing, no matter what the motive will not be tolerated and deserves sever punishment.

So how are these cases defended? Usually by challenging the validity of the search warrant the permits the police access to your electronic/computer equipment. Fight to show an absence of probable cause and improper issuance of the search warrant. Additionally, you might be able to defend these cases by showing that the government has failed to establish that you are in fact the person who committed the acts, regardless of what is on the computer.

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A Lowell, Massachusetts criminal defense lawyer defending a man accused of a couple of drug felonies might get the charges dismissed. Just two days ago the lawyer complained that the prosecution was in violation of an order to produce potentially exculpatory evidence. According to reports the prosecution was given until Monday to produce information confirming that the informants used in this case were not the same informants previously publicly deemed unreliable. The prosecution did not produce the affidavits. Instead, the district attorney’s office passed blame to the police claiming that they never produced the requested and necessary affidavits. The judge extended the time for compliance until Thursday. If the documents ordered are not ready by that time then all evidence attributable to the informant’s efforts will be excluded at trial.

The underlying case here stemmed from a search warrant executed at a Lowell apartment. The affidavit in support of the warrant was predicated in part on information learned from two confidential informants. During the search officers located Oxycodone, and cocaine, a class B substance the quantity of which justified charges of possession with the intent to distribute, a felony in Massachusetts. The district attorney also charged with defendants with conspiracy. Drug paraphernalia was also found during the search. The informants in question were believed to have fabricated evidence in other instances that ultimately resulted in the dismissal of seventeen cases.

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Lowell, Massachusetts Drug Charges Defense Law Firm

This case demonstrates the value of having a persistent criminal defense lawyer. Here, the lawyer understood that cases in Lowell using dirty informants had been revealed. He also learned that several cases where those individuals were used had been dismissed. In this case, I am assuming that the fact of the case did not require the disclosure of the informant’s identity. So, the defense attorney kept fighting. He moved for confirmation that the bad informants were not used in this case. It is no wonder why the judge has threatened what will ultimately be a dismissal of this case. If the prosecution is unable to put together written confirmation under oath that these people were not involved in this investigation there is a strong suggestion that they were in fact somehow connected to this prosecution thereby warranting sanctions.

This case also shows how judges might hold the prosecution to a high standard of integrity. Compelling them to produce sworn statements showing that there is nothing illicit about this investigation promotes confidence in the system. And if these arrests came about as a result of tainted information the cases simply should be dismissed. The district attorney in this case should really be relieved by the judge’s order if he or she has any doubt about the credibility of these informants. Presenting dirty evidence creates the possibility of sanctions against the prosecutor, something that is entirely avoidable in this case.

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Today’s Somerville Patch reports that a woman had been advertising her services over the Internet. Specifically, she offered sex for a fee. Her advertisement listed the Washington Street Holiday Inn in Somerville as her place of business. An undercover detective responded to the listing and met up with the woman in her hotel room. She requested one hundred twenty five dollars for one half hour of sexual services and two hundred dollars for a full hour. The woman, a sixty year old from Randolph, Massachusetts then took off her clothes, provided the undercover with a condom and laid out some rules for the encounter. She was then arrested and charged with sexual conduct for a fee, also known as prostitution.

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Somerville, Massachusetts Prostitution Defense Lawyer

I get calls on cases like this one from perspective clients on a regular basis. Several of them ask me the same question: “Isn’t this entrapment?” The answer is no. People think that police officers conducting covert operations that result in an arrest is entrapment. It is not. Entrapment is a defense to criminal charges that focuses on the predisposition of the accused. It is not entrapment for police officers to entice a prostitute or drug dealer into performing or attempting to perform their services. If the person is predisposed towards the commission of a crime and the police simply facilitate their efforts entrapment has not occurred. Entrapment is a viable defense where the government or its agents overcome the will of a person and in some way coerce them to commit a crime.

On several occasions I successfully represented people accused of trafficking cocaine with an entrapment defense. On one occasion I represented a recent college graduate (Jim) who enjoyed smoking marijuana and sometimes snorting lines of cocaine. One of his “friends” would share with him a small amount of cocaine. Unbeknownst to Jim the “friend” was actually an informant, trying to work off a pending drug case. The informant had convinced his handler, a state trooper, that Jim was a major drug dealer. In order to work off his case the informant had to produce, or, in this case introduce the trooper to a drug dealer and to actually access drugs.

So one day the informant brought the trooper over to meet Jim. The trooper was introduced as a cocaine supplier. During the meeting the trooper pulled out a small quantity of cocaine, similar to the amount that the informant would share with Jim. Jim and the informant snorted a few lines. The next day the informant called my client and told him that the individual he had just met wanted a large amount of cocaine and that he wanted Jim to get it for him. Jim was confused and wanted to know why this person would think he could get him a large quantity of cocaine. Jim said that he had no interest in this proposition. Over the course of the next several months the informant badgered and threatened Jim. He convinced Jim that the person who had given him some cocaine, the trooper, was dangerous and that Jim owed him. A record of hundreds of telephone calls was produced from the informant to Jim. The calls were made at all hours of the night. The informant incessantly harassed Jim and had him fearing for his life. Consequently, Jim gave in and agreed to produce a large quantity of cocaine. The informant introduced Jim to a major drug dealer and a deal with the undercover was ultimately consummated. Jim was arrested and charged. We were able to show that the government’s harassment of Jim overcame his will and forced him into the drug deal. Jim was acquitted before a Suffolk County jury.

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Earlier this week an article circulated via UPI talked about an evolving test that Massachusetts prosecutors will undoubtedly be using to help prove their cases. X-ray photoelectron spectroscopy, commonly referred to as XPS, looks at individual cotton fibers that contain distinct chemical traces on their surface. The chemicals are used in the treatment and manufacturing process of cotton garments. The XPS process helps to distinguish cotton fibers that through microscopic examination were thought to be indistinguishable. The chemicals in question are used to make the clothing article wrinkle free, resistant to staining or waterproof. Through XPS these chemicals can be identified on the surface of the individual fibers.

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Massachusetts Criminal Lawyer Using Expert Witnesses and Technology

I imagine that once XPS testing is “perfected” this science will become prevalent in Massachusetts courts, particularly in serious felonies being prosecuted in the superior courts. I say this even though I do not believe that using XPS experts will be beneficial to the district attorney. Here is why. Prosecutors will want to test fibers to see if a match can be made to clothing worn or owned by the accused. At least initially, if there is a match there will be an argument that this link to the defendant corroborates other evidence in the case. This strategy will ultimately appear desperate. In general the fibers we are talking about and their processing and manufacturing treatments are not typically unique. Clothing is mass manufactured. In many cities it is common for youth to be wearing the same or similar clothing made by a particular company. For instance, for years black hooded sweatshirts made by a particular sporting goods company were the wardrobe of choice in certain parts of Boston and other major cities. You could walk down the street and see scores of youth wearing the same articles of clothing, same make and same logo. So how then does this more effectively link a particular defendant to a crime scene? It probably doesn’t and defense lawyers will quickly pick up on this as a challenge to the significance of this evidence.

Then why would prosecutors get into XPS testing at all? The trend among prosecutors in Massachusetts for more than a decade now is to introduce evidence known to have little significance if they believe that the defense will comment on its absence otherwise. For example, in murder cases where DNA is not an issue a prosecutor may nevertheless call a DNA expert to testify that certain evidence could not be tested for DNA. The same logic applies to fingerprinting and testing blood samples. So, once XPS testing becomes a household term we will see prosecutors, through their expert witnesses discussing this process. This will apply whether or not XPS testing was done and regardless of the test results. Thus, it will be important for Massachusetts criminal defense lawyers to familiar themselves with this process whether or not they use it.

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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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