Massachusetts Criminal Defense Lawyer Blog

The United States Supreme Court is scheduled to hear arguments on October 31 2011 in the case of Lafler v. Cooper and Missouri v. Frye, that raises the issue of whether an a criminal defense attorney in Massachusetts, or any other state, can provide ineffective assistance of counsel during a plea negotiation when a defendant later receives a fair trial.

In the case of Cooper, he received ineffective assistance of counsel because his attorney told him that he could not be convicted of assault with the intent to murder, because the shots he fired were below the victim's waist. Based on this advice, Cooper claims that he went to trial and received a sentence eight years greater than the sentence he would have received had he accepted the original plea offer and was given proper advice as to the elements of the offense. To read the brief of Defendant Cooper you can click here.

In the Frye case, the defendant claimed he received ineffective assistance of counsel because his attorney did not communicate a plea offer to him which expired; the defendant received a harsher sentence when he entered an open plea in court. Under the proposed plea offer, that was not communicated, the prosecutor offered to allow the defendant to plea to a misdemeanor with a ninety day jail sentence recommendation. The defendant ultimately received three years as part of an open plea but claimed prejudice in being deprived the opportunity to plea to the misdemeanor offense as a result of counsel ineffective assistance in not communicating the offer. You can read the filings in the Frye case by clicking here.

The State in both cases, argued that there can be no ineffective assistance under the case of Strickland v. Washington, 466 U.S. 668 (1984) which set forth the standard for determining Sixth Amendment ineffective assistance of counsel claims. The State argued that the prejudice element of the Strickland test cannot be satisfied because the defendant received a fair trial in the Cooper case and could have went to trial in the case of Frye. The State argued that the conviction is not rendered unreliable and the defendant was not deprived of asserting any available defense to constitute prejudice under the Strickland case. Further, the State argued that the Court cannot fashion an appropriate remedy because the State had the right to withdraw or modify the offer. Accordingly, the State argued that creating a remedy would violate separation of powers by conferring on the courts the executive function of crafting plea offers.

The defendant's argued that consistent with the United States Supreme Court's Padilla v. Kentucky, 130 S.Ct. 1473 (2010) decision, courts are capable of fashioning a remedy for ineffective assistance in not communicating a plea. As a Massachusetts criminal lawyer, I would expect the Supreme Court to rule that courts can entertain ineffectiveness claims for plea agreements. The State is taking the narrow view of the Sixth Amendment as guaranteeing a defendant the right to effective assistance of counsel only during the trial stage; however the United States Supreme Court has made clear that the Sixth Amendment right to counsel applies at every stage during the process of a criminal case. Further, the Court recently held in Padilla that counsel is ineffective in not communicating the immigration consequences of a plea offer; accordingly, these cases are a natural extension of that doctrine that the duty to provided effective assistance of counsel encompasses the process of negotiating a plea agreement and properly communicating the implication of the plea to the defendant. I would expect a close vote in the case but I would not anticipate the court taking a bright line position but would allow the issue to be resolved by trial judges.

Four men accused of a burglary, who first were suspected of an attempted abduction in Attelboro, are being held in jail on $25,000 bail, The Sun Chronicle reports.

Charges of burglary in Attleboro are punishable by up to 20 years in prison, which is likely why the defendants were held on such a high bail. This case also highlights the damage that can be done by the news media and makes the job more challenging for a Massachusetts criminal defense lawyer.

The Sun Chronicle story, in its first paragraph mentions "attempting to abduct" and a 7 News report online repeats the same phrasing. Yet, there are no charges of abduction that these men face.

The damage has already been done in the court of public opinion. When people think of this case, they're going to think about the fact that police believe these men were attempting to abduct a woman, when there is absolutely no proof. Working to separate fact from fiction -- and fighting to keep irrelevant material out of court -- will be critical to the defense.

According to the news reports, a woman was jogging near the Attelboro/Rehoboth line, when she saw a van carrying several men drive by slowly. When the van turned around and drove by her again, she panicked, letting go of her dog's leash and running toward a nearby house. When no one was there, she hid in the woods.

Police have said she had the right to act that way. Maybe she did, but a van driving slowly, perhaps because the driver was lost, doesn't constitute allegations of an abduction. Other than the woman being spooked by the incident, there is nothing to suggest the people in the van wanted to harm her.

Sadly, this may be what sticks with people who have read the articles or watched the TV news broadcasts. After this happened, police launched a massive hunt for the men, using a reverse 911 message to alert residents.

Ryan McCoy, 23, of Attleboro; James Gould, 27, and Benjamin Gould, 23, of Plainville and Phillip Muggle, 29, of Rehoboth were arraigned recently in Taunton District Court after police arrested them.

The Sun Chronicle reports that police found property from a Smith Street house that linked them to a burglary. They also face a charge of witness intimidation, though it doesn't appear from the media reports that there is much evidence of that.

Because of all the excitement of a police manhunt and the media coverage, this will be a topic of conversation for a few days. Whether there is any real evidence linking them to a burglary remains to be seen. So far, they are guilty of nothing.

A burglary is fairly common, but an abduction isn't. An experienced Massachusetts criminal defense lawyer knows that jury selection is perhaps the most important part of a trial. If this case reaches that stage, it will be important to ensure jurors do not rely on media reports or evidence not before the court.

Without a fair jury, a defendant doesn't have a shot.

Continue reading "Accused Burglary Suspects Held on $25,000 Bail in Taunton District Court" »

The Baby Lisa case has garnered national headlines as local authorities and the FBI search for the child missing in Kansas City since Oct. 4.

According to The Kansas City Star, the 11-month-old girl was reported missing from her crib that day.

CNN reports that the FBI recently obtained a search warrant for the house and began searching recently and the order bans the family of the girl from returning home.

A missing child is a a nightmare for any parent. But if recent media reports have taught us anything, it's that authorities will look to the parents as soon as they look at outside suspects.

And after about two weeks, it appears that's exactly what's happened here. Obtaining a search warrant and banning the family from going into their home seems to indicate authorities are now turning their attention inward.

Charges of kidnapping in Massachusetts are among the most serious a person can face. Massachusetts criminal defense lawyers know the penalties are steep and will prepare a strong defense for a person accused of such a crime. That means challenging all evidence and seeking independent witnesses to verify the facts.

In Massachusetts, kidnapping charges can be penalized in a variety of ways, depending on the facts of the case. For instance, if the kidnapping was committed to extort money, a person convicted could be sent to prison for life. In other circumstances, the sentence could range from 2 to 10 years.

The Kansas City Star reports that police have revealed little about what they know to the public. The newspaper reports that the majority of the information coming out about the case has come from the child's parents.

The girl's mother has told the media that she failed a polygraph test, was drunk and may have "blacked out" the night the girl went missing and now the police are accusing her of being involved.

The parents and police differ about their cooperation level. The parents say they are helping, while the police have said they are not. It's been more than a week since the parents and police sat down and spoke and the parents aren't making the baby's older siblings, who were home the night of the disappearance, available to detectives.

The case started Oct. 4 around 4 a.m. when the girl's father got home from his overnight job and reported the girl missing. The mother said she had last seen the girl around 10:30 p.m. the night before.

A neighbor reported a man seen with a baby around 2 a.m. Within two days, the police had questioned the mother and said they were no longer cooperating. The family then scaled back interviews and appearances on national television.

CNN reports that a child resembling Baby Lisa was reported about 100 miles away, but that turned out to be a false lead. The family believes it's possible someone could have entered the home without the family knowing since their bedroom is on the opposite side of the house and the baby's room has a loud fan blowing.

But it appears police are spending more and more time focusing on the mother, since she was home the night it happened. She admits to being drunk, but denies involvement in her daughter's disappearance She has admitted she fears police will arrest her.

Continue reading "Baby Lisa Case Could Lead to Kidnapping, Murder Charges" »

Police have accused two women of a conspiracy during which they faked a housebreak to steal guns and trade them for heroin, The Sun Chronicle reports.

Charges of theft in Attelboro as well as drug and gun offenses can add up to jail time, possible probation and fines and fees.

But whether a shoplifting or a serious theft crime such as a burglary or robbery, it can sometimes be difficult to prove for police. Without credible eye witnesses or some type of caught-in-the-act moment, police sometimes have a hard time fingering who committed a crime.

Even if they make an arrest, Massachusetts criminal attorneys will challenge the case put together by prosecutors and work toward the best outcome possible in a client's case. When evidence is scarce, there is plenty of reasonable doubt to show the accused isn't the criminal. And even if it appears there is an abundance of evidence, some can be thrown out with an experienced lawyer.

In this case, 38-year-old Shannon E. Wilson called authorities to tell them that her house on 87 Smith St. had been broken into. Police quickly turned against her and began considering that there was no break-in at all.

The Sun Chronicle reports that the woman then allegedly confessed that she made up the incident so that she and longtime friend Robert Delaney of Franklin could sell her husband's .22-caliber and .45-caliber pistols for heroin.

Both have been arrested, but there is a wrinkle in the case. Police haven't recovered the weapons. The suspects allegedly told police that the .22-caliber gun was sold to a drug dealer in Taunton and the .45-caliber gun was taken to Providence and sold to a drug dealer there.

Both defendants are allegedly blaming each other, with neither admitting to who committed the break-in or who took them from the storage locker and completed the drug deals.

Because both have pending cases in Wrentham District Court, a judge in Attleboro District Court held them without bond.

Wilson is charged with armed robbery and larceny in Wrentham, while Delaney has a prior drug case that is pending.

In this case, both face charges of larceny of a firearm, conspiracy, conspiracy to violate narcotics laws and unlawful possession of firearms with large capacity feeding devices. In addition, Wilson faces a charge of filing a false police report and Delaney is charged with breaking and entering.

Without an eyewitness to say who broke into the house, it may be difficult for the state to prove. And the fact that police don't have any evidence of where the weapons are or that they were actually traded for heroin casts doubt on some of the charges.

Delaney is charged with breaking and entering, but do the police really know he did that? If each defendant is blaming each other, it could be difficult for investigators and prosecutors to sort through what they have and ensure that they can prove beyond all reasonable doubt each of these charges. That's another reason why simply remaining silent is so often to a client's advantage.

Continue reading "Woman Allegedly Conspired to Trade Guns For Drugs in North Attleboro" »

A 32-year-old man is under arrest after he was accused of a probation violation over an alleged domestic assault in Attleboro, The Sun Chronicle reports.

Avoiding jail is one thing -- successfully completing the terms of probation is quite another. The conditions that are imposed may severely limit where a person can go, what time they can travel, if they can leave a certain geographical area and how much money they must pay each month.

Some defendants would actually prefer jail time because a probation violation can result in sentencing on the underlying charge. When someone violates probation, they are exposed to the possible highest penalty available for the charge for which they were convicted. Massachusetts criminal defense lawyers can assist clients avoid some common pitfalls when probation terms are set. And should always be called to handle probation violation allegations.

Saulnier had a history of assault-related charges, the newspaper reports. Police went to 13 Maple St. recently after a relative of his girlfriend called police to report that an alleged domestic assault had occurred.

Police say that while they were investigating, ran out the back door of the house and ran away. After sealing off the area, Saulnier was found under a porch on Lafayette Street by a police officer and his K-9 partner.

Both the man and his girlfriend acknowledge there was a verbal dispute, but that there was no physical altercation between the two. Yet, he was arrested anyway and held without bond. The article states he owes $1,220 in fines and fees after failing to report to probation for more than a year.

He has pleaded innocent to charges of assault, intimidating a witness, uttering threats, resisting arrest and being disorderly. If found guilty of the probation violation, officials will seek jail time, they told the newspaper.

Obviously, a new arrest is a violation of probation. But not making payments, not checking in with an officer, not reporting changes in addresses or phone numbers all can be considered violations, as well.

That's why if a defendant wants probation over jail time, they must be sure they can not only afford to make payments, but also are willing to abide by the rules. Otherwise, they will be thrust back into the criminal justice system and face the possibility of going to jail, the penalty they sought to avoid in the first place.

Continue reading "Attleboro Man Jailed After Search of His House During Domestic Abuse Call" »

A Weymouth lawmaker has proposed bills that would squash Question 2, a three-year-old referendum that made possession of a small amount of marijuana a civil infraction rather than a criminal offense, The Patriot Ledger reports.

Three years ago, 65 percent of Massachusetts voters passed Question 2, a referendum on the 2008 ballot that made someone carrying an ounce of marijuana liable for a $100 fine, but not for arrest. The Patriot Ledger reports there is no record of how many people have been fined under the referendum in the three years since it was passed.

Attleboro drug defense lawyers believe that repealing this law after only three years would not only be irresponsible, but also in direct opposition to what the people want. Voters passed it. Now, the lawmakers they elected are trying to repeal it. It's not a unique tale. In the dozen states where medical marijuana has been legalized, lawmakers continue to quash user rights. And those in Massachusetts who think possession is no big deal, are often in for a big surprise.

There are so many laws regulating drug crimes in Attleboro and throughout the Commonwealth that lawmakers have a run of options on how to charge a defendant. We know there are better use for tax dollars in the criminal justice system than punishing people for possession of marijuana.

If the law ends up getting repealed, there will be many people arrested, which costs taxpayer dollars and law enforcement resources. Now, it simple costs the offender $100. Why go back to the old way?

State Rep. James Murphy has introduced two bills which were heard recently that would re-criminalize possession of small amounts of marijuana.

"The bills were originally designed and geared toward teenagers and young adults, primarily to make sure these kids don't receive the wrong message, that marijuana use is OK," he said.

Some local law enforcement officers actually support the bills. Quincy's police chief thinks communities should be able to opt out of the decriminalization under Question 2 and make the penalties even tougher. Paul Keenan says officers have seen more people with marijuana, which he attributes to the law.

Authorities have been fighting the "War on Drugs" for decades and they've done so unsuccessfully. Now, lawmakers are doing what they know -- trying to make penalties tougher. It won't work.

For people who have a desire to do drugs, they're going to find them. Many people have been arrested and convicted and still go back. Heightened penalties aren't the way to stop it.

Continue reading "Massachusetts Lawmaker Wants Small Amount of Marijuana to Be Illegal Again" »

Massachusetts threats charges were brought against Alex Finnigan, a former student at Bridgewater State University after his alleged to have threatened to shoot up the campus radio station because they would not play a requested song, according to CBS News. The defendant was charged with a felony charge of threat to commit a crime with serious public harm and the misdemeanor charge of threats to commit a crime.

To prove a charge of threats to commit, the misdemeanor charge, under Massachusetts General Laws Chapter 275 Section 2, the Commonwealth must prove the following elements:

1. that the defendant expressed an intent to injure;


2. that the defendant intended teh threat to be conveyed


3. that the injury that was threatened, if carried out would constitute a crime; and


4. the defendant made the threat under circumstances which would reasonably have caused the victim to fear that the defendant had the intent and ability to carry out the threat.

To read more about the elements of a threat to commit a crime you can click on the Massachusetts Model Criminal Jury Instructions.

The contested issue in this case would be whether the defendant had the intent to carry out the threat; it appears that multiple calls were made but that the defendant wrote a letter of apology saying the whole thing was a joke. I would not expect the prosecutor to dismiss this charge, but to prosecutor and look for a conviction, given the seriousness of these incidences that occurred in the past. Further, as a criminal defense lawyer in Brockton, the defendant's letter of apology may making contesting the charge more difficult as it would possibly remove any issue of who made the threat from being challenged.

Continue reading "Massachusetts threats charge brought against man for threatening radio station host for not playing a song" »