Aggressive Defense of All Criminal Matters
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Police and district attorneys in Massachusetts have a tendency to charge people with crimes that are much more severe than the crime that they believe was actually committed. They are not supposed to do this. They are supposed to charge people solely for the crime they truly believe was perpetrated. The classic example of this is Massachusetts drug cases. Take for instance the case of Andre Jacobs, a twenty year old Stoughton, Massachusetts resident who was approached in his car by the police for a purported motor vehicle infraction. When the police approached him he made some “furtive movements” that led the officers to search. They found five and one half grams of heroin and some cash. Jacobs was charged with possession with intent to distribute heroin. This is a felony in Massachusetts and a very serious one at that. But why was Jacobs charged with possession with intent as opposed to simple possession? The answer is easy. Because that is the larger crime and one that is punished more severely in Massachusetts. This post examines the motives behind criminal charges in Massachusetts, particularly as they relate to drug crimes.

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Once again I wake up and grab the local Lawrence, Massachusetts newspaper and read about another heroin bust. This one involved an investigation spanning Lawrence, Haverhill and Methuen, Massachusetts. The arrests were made after a brief investigation into local heroin use following several local overdoses, some fatal. The first thing that catches my eye is the case of Carl Saccoccio from Somerville who apparently drove to Lawrence to purchase a bag of heroin. Whether this was for recreational purposes or to support a habit is unclear but for certain there was no felonious intent. So what happened here is that rather than catch dealers or suppliers the cops caught, arrested and charged users. Catching users is apparently easier than catching distributors. This article identifies Saccoccio and fourteen others as being arrested for possession of heroin. No one was arrested for dealing. Most of the arrestees had outstanding warrants and I would be that nearly all of them have criminal records for drug convictions. Six of the individuals arrested are from New Hampshire or Maine.

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First degree murder in Massachusetts can be proved by the district attorney through one of three theories. One is by deliberate premeditation. To prevail under this theory the prosecution must show an intent to kill and that the decision to do so followed a period of reflection. The second way is through the felony murder rule. There, the prosecutor can secure a conviction by showing that the victim was killed during the commission of a felony that is punishable by a life prison sentence. The third way is with extreme atrocity or cruelty. Under this theory the jury must find that one of seven specific factors existed at the time of the killing.

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In almost every case involving child pornography prosecutors in Massachusetts are faced with what should be a difficult decision: to charge possession of child pornography or to charge distribution of child pornography. Let’s look at some common facts. Rarely, if ever is a defendant caught with one image or a few images. This is because child pornographic materials are accessed through file share programs. The files that people receive though peer to peer networks usually contain scores if not hundreds of images. Under Massachusetts law this permits the prosecution to charge the more severe felony, distribution of child pornography. And usually, the prosecution does just that, it charges distribution. However the charge of possession, a lesser included felony is typically charged as well. This post examines why that is done and some thoughts on defending these cases.

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In 2012 the United States Supreme Court decided the case of Miller v. Alabama, 132 S.Ct. 2455 (2012). There, two fourteen year olds were convicted of murder and sentenced to life without parole, a mandatory sentence under their state law sentencing schemes. The Supreme Court held that sentencing laws that mandate life without the possibility of parole for juvenile offenders violates the Eighth Amendment to the United States Constitution. This is so because such laws do not permit the judge from considering age, maturity, family environment, appreciation for their actions and other circumstances attendant to their youth and the crime they committed. Exactly what that would mean to juveniles serving sentences of life without parole in Massachusetts was not made clear until Christmas Eve 2013 when the Massachusetts Supreme Judicial Court rendered its opinion in Commonwealth v. Brown, 466 Mass. 676 (2013).

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At least once a week I get a call from a perspective client who wants to discuss a criminal case that he or she thinks is a classic case of entrapment. While the facts are always different a common theme underlies every story. An undercover police officer is involved in some sort of investigation. The officer is playing the part of a criminal or someone engaged in some sort of wrongdoing. My client takes the bait and enters into discussions and interaction with the officer. Then, either just prior to, or at the time of the consummation of the crime an arrest is made. My client claims to be the victim of entrapment. He’s right isn’t he? After all, he did not know that the person he dealt with was a cop. Shouldn’t they dismiss my case? Nope. This is not entrapment. It might be an underhanded police tactic. It might be a waste of the taxpayer’s money. But it is not entrapment.

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Several times each week someone calls my office with this question. The answer varies from case to case. The consequence of defaulting from your obligations in the Massachusetts criminal courts is extremely fact specific. Much depends on when you defaulted and why you defaulted. Some situations are considered quite serious. Others are not. This post summarizes the most common scenarios people face when defaulting. No matter what category or example seems to fit your case it is important to consult with a lawyer if you are in default. There is probably a warrant out for your arrest and you will need a criminal defense lawyer to protect your rights.

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This process used to be so easy. Simply draft a subpoena identifying the materials you wanted and have it served on the keeper of the records for the entity in possession of the materials. Some lawyers had summons direct delivery to their law office. Others had it delivered to the clerk’s office where the case was pending. Sometimes the criminal defense lawyer would get a call from one of the assistant clerks telling him that the documents were delivered and available for photocopying. Some clerks might tell the lawyer that the material was too voluminous for the clerk’s office to keep so the lawyer was instructed by the clerk to keep it himself. If the material was not delivered the defense lawyer would ask for the judge to order compliance with the subpoena. The keeper of the records would then have to produce the material or appear, usually with counsel, and state why the records could not be produced.

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Until 2006 the criminal law discovery process in Massachusetts created, at least in some cases, a level playing field. The prosecution was obligated, with limited exception, to surrender all of its evidence to the defense. This duty required disclosure of all known witnesses, their statements, evidence of which the district attorney had knowledge, all exculpatory evidence and more. The defense on the other hand was required to do no more than provide the district attorney with a list of witnesses it would call at trial along with their addresses and dates of birth. The only exception to this involved the use of expert witnesses whose opinions and the basis therefore had to be disclosed in a manner that gave the prosecution adequate notice of their anticipated testimony.

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One of the crimes most frequently defended by Massachusetts criminal lawyers is the case of domestic assault and battery. The statute prohibiting the conduct is Massachusetts General Laws Chapter 265 Section 13A. Not many people are aware that the crime of assault and battery in Massachusetts is a misdemeanor, punishable by up to two and one half years in the house of correction and a one thousand dollar fine. The term “domestic” does not change the actual criminal charge. Rather, it is a description commonly used by lawyers and lay people alike in reference to someone in a relationship causing physical harm to the other person in that relationship. Massachusetts judges and district attorneys for some reason seem to view assault and battery cases of this nature as being more serious than other assaultive conduct; i.e. a fist fight. For this very reason anyone charged with hitting or threatening a domestic partner should not go into court without a lawyer.

Why Are These Cases Taken So Seriously in Massachusetts?

The answer to this question is simple. The risk of harm to the victim coupled with the consequences facing the accused trigger great scrutiny of these cases. As to the victim, the prosecution and judges want to make sure that they are safe. Domestic issues are emotional issues and rationality often takes a backseat to reason and logic when emotions are tested. Ensuring that the complainant is safe from further attack is the first order of business. On the other hand, someone needs to protect the accused to make sure that his or her rights are protected as well. Domestic assault and battery allegations prompt the issuance of restraining orders. A violation of a restraining order can in some instances be a felony. For instance, an assault and battery in violation of a restraining order is a felony that can result in a five-year prison sentence. This again is reason enough for anyone charged with this crime to be represented by a lawyer.

What if I Didn’t Do Anything and the Complainant is Lying?

The sensitivity and volatility of domestic assault and battery cases usually leads judges, at least initially, to side with the complainant. No judge wants to see his or her name in the paper with an accusation that they did nothing to protect a “victim” in a domestic case. So, absent effective representation they will render harsh judgments against the accused in the form of restraining orders, pretrial detention and stiff sentences. An experienced criminal defense lawyer, properly prepared, will be able to demonstrate to the judge in appropriate circumstances that the accusations are lies. This can be done by getting witnesses to appear in court to refute the charges, show a pattern of lies in restraining order affidavits, reveal illicit motives for the duplicitous complaints and more. There is always a reason for making a false complaint of domestic abuse and a skilled defense lawyer will demonstrate this to the judge or jury. Aggressive defenses in these matters are often necessary and a quick start on your defense can save you the trouble of trying to vacate restrictions on your life at a later time.

Why Do People Lie In Domestic Abuse Cases?

There are many reasons people lie in domestic assault and battery cases. Sometimes people want to control their partner. If the complainant fears that the accused is planning to leave them a restraining order or complaint of domestic abuse gives them control during the pendency of the case. They can lie and tell the judge that the defendant violated the restraining order if the defendant does not do as they demand. Sometimes people wrongly believe that an accusation of domestic abuse will give them the upper hand in a divorce or child custody proceeding. Other times, abusing the courts with false claims of abuse is a way of “getting even” with a cheating spouse. Other times it is done out of pure evil. A good criminal defense lawyer will work with you to expose the “victim’s” illicit motives and get you a proper result in court.

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